Bank of America v. Jones, T. ( 2018 )

J-S71002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BANK OF AMERICA, N.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRACEY A. HALL JONES AND :
HERMAN E. JONES :
: No. 548 EDA 2017
Appellants :
Appeal from the Order Entered January 5, 2017
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2013-00225
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 06, 2018
Appellants, Tracey A. Hall Jones and Herman E. Jones, appeal from the
order entered in the Bucks County Court of Common Pleas. The order denied
Appellants’ petition to strike the default judgment entered against them in a
mortgage foreclosure case. We affirm.
The relevant facts and procedural history of this case are as follows.
Appellee, Bank of America, N.A. (“BOA”), filed a complaint in mortgage
foreclosure against Appellants on January 11, 2013. After Appellants failed to
respond, BOA filed notice of its intent to take a default judgment against
Appellants. That judgment was entered on May 9, 2013, with damages
assessed against Appellants for $374,827.09. The docket indicates that both
the complaint and the default judgment were personally served to Appellants,
who accepted the documents.
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* Retired Senior Judge assigned to the Superior Court.
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Appellants did not take any action until over three years later, on
September 6, 2016. On that date, counsel for Appellants entered his
appearance, and filed a petition to strike the default judgment. In their
petition, Appellants maintained that BOA’s notice of intent to take default
judgment failed to substantially comply with the form of notice prescribed by
Pa.R.C.P. 237.5. The court denied Appellants’ petition to strike. Appellants
filed a timely notice of appeal.1 This case is now properly before us. See
Pa.R.A.P. 311(a)(1).
On appeal, Appellants claim BOA failed to comply with Rule 237.5. This
claim concerns the applicability of a Pennsylvania Rule of Civil Procedure,
which raises a question of law. See Oswald v. WB Public Square
Associates, LLC, 80 A.3d 790, 793 (Pa. Super. 2013). Consequently, “our
standard of review is de novo, and our scope of review is plenary.” Id. (citation
omitted).
A petition to strike a judgment is a common law proceeding which
operates as a demurrer to the record. A petition to strike a
judgment may be granted only for a fatal defect or irregularity
appearing on the face of the record. A petition to strike is not a
chance to review the merits of the allegations of a complaint.
Rather, a petition to strike is aimed at defects that affect the
validity of the judgment and that entitle the petitioner, as a matter
of law, to relief. A fatal defect on the face of the record denies the
prothonotary the authority to enter judgment. When a
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1 Despite the trial court’s assertion that Appellants’ appeal is untimely, the
record reveals the order denying their petition was entered on January 5,
2017. The thirtieth day fell on Saturday, February 4, 2017. Appellants filed
their notice of appeal on Monday, February 6, 2017. Thus, they timely filed
their appeal. See Pa.R.A.P. 107 and 903; 1 Pa.C.S.A. § 1908.
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prothonotary enters judgment without authority, that judgment is
void ab initio. When deciding if there are fatal defects on the face
of the record for the purposes of a petition to strike a default
judgment, a court may only look at what was in the record when
the judgment was entered.
AmeriChoice Federal Credit Union v. Ross, 135 A.3d 1018, 1023 (Pa.
Super. 2015) (citation omitted).
Rule 237.1 of the Pennsylvania Rules of Civil Procedure addresses the
notice of intent a party is required to give when taking a default judgment.
And Rule 237.5 gives additional instruction on what form the notice must take.
Specifically, the notice, in pertinent part, must be “substantially in the
following form:”
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH
THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH
AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS
NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING
AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
___________________________
(Name of Office)
___________________________
(Address of Office)
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___________________________
(Telephone Number)
Pa.R.C.P. 237.5.
Panels of this Court have previously identified forms of notice that do
not meet the requirements of Rules 237.1 and 237.5. Specifically, this Court
has taken issue with forms of notice that fail to describe what the party in
default has failed to do. In Oswald, the first line of the notice merely stated,
“You are in default because you have failed to take action required of you in
this case.” 80 A.3d at 796. The panel found this was not substantially similar
to the first line of the form notice in Rule 237.5, because it did not include
specific notice of why the party was in default. See id. The panel held this
constituted a fatal defect on the face of the record, and reversed the trial
court’s order denying the appellant’s petition to strike. See id. at 797.
The Court in AmeriChoice also reversed the trial court’s order denying
the appellants’ petition to strike default judgment. See 135 A.3d at 1026. The
Court found the same vague language used by the notice in Oswald
constituted grounds for reversal. See id.
Conversely, in Green Acres Rehabilitation and Nursing Center v.
Sullivan, the notice provided reasons for the default: “You are in default
because you have failed to enter a written appearance personally or by
attorney and file in writing with the court your defenses or objections to the
claims set forth against you.” 113 A.3d 1261, 1265 (Pa. Super. 2015). The
notice there did not track the exact language in Rule 237.5; specifically, the
notice left out the line stating, “If you cannot afford to hire a lawyer, this office
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may be able to provide you with information about agencies that may offer
legal services to eligible persons at a reduced fee or no fee.” Id. The notice
did recommended that the recipient of the default notice contact the
Philadelphia Bar Association, and included the Association’s address and
telephone number. See id. The panel in Sullivan held this notice substantially
complied with the requirements, and that the appellant failed to demonstrate
a fatal defect on the fact of the record. See id., at 1273.
Instantly, the notice in this case stated:
IMPORTANT NOTICE
You are in default because you have failed to enter a written
appearance personally or by attorney and file in writing with the
court your defenses or objections to the claims set forth again[st]
you. Unless you act within ten (10) days from the date of this
notice, a judgment may be entered against you without a hearing
and you may lose your property or other important rights. You
should take this notice to your lawyer at once. If you do not have
a lawyer or cannot afford one, go to or telephone the following
office to find out where you can get legal help.
NOTICE TO DEFEND & LAWYER REFERRAL SERVICE
Bucks County Bar Association
135 E. State Street
P.O. Box 300
Doylestown, PA 18901
Phone (800) 991-9922, Ext. 108
BOA’s Praecipe for Entry of Judgment by Default, filed 5/9/13.
Appellants argue that BOA’s notice is outdated, and fails to substantially
comply with Rule 237.5 because it omits the line in the recommended form
stating, “If you cannot afford to hire a lawyer, this office may be able to
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provide you with information about agencies that may offer legal services to
eligible persons at a reduced fee or no fee.” Appellants ask us to ignore the
substantial similarities standard in favor of one requiring precise compliance
with the language of Rule 237.5. Appellants argue that BOA could have used
the exact language in Rule 237.5, did not do so, and should thus be penalized.
Appellants cite only a single case from a county court to support this rigid
proposition. Appellants conclude we must reverse the order denying their
petition to strike default judgment. We disagree.
Notice of a party’s intent to enter a default judgment must be in
“substantially” the same form dictated by Rule 237.5. Pa.R.C.P. 237.5. “Under
the doctrine of substantial compliance, the trial court may overlook any
procedural defect that does not prejudice a party’s rights.” Sullivan, 113 A.3d
at 1272.
The text of the notice given to the appellants in Sullivan was
indistinguishable from the notice given in this case, save for the listing of the
Bucks County Bar Association rather than the Philadelphia Bar Association.
The Sullivan panel found the notice to be “virtually identical to the language
set forth in current Rule 237.5.” Id., at 1273.
The notice given to Appellants in this case is also virtually identical to
that demanded by Rule 237.5. Appellants do not claim the notice contained
any of the objectionable defects that required reversal in Oswald and
AmeriChoice. Nevertheless, Appellants contend that the omitted language
here deprived them of information on low-cost legal services. To the contrary,
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Appellants’ decision not to contact the Bucks County Bar Association listed
deprived them of this information. We find Appellants are not entitled to relief.
Accordingly, we affirm the order denying their petition to strike the default
judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/18
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