Wednesday, December 09, 2015

default judgment - striking - failure to strictly follow Rule 237.5 - notice of intent to take default


Americhoice Federal Credit Union v. Ross – Superior Court – December 7, 2015

 

Majority                                 http://www.pacourts.us/assets/opinions/Superior/out/J-S63017-15o%20-%201024610755788899.pdf?cb=1

 


 

Default judgment stricken due to Plaintiff’s failure to strictly follow Pa. R.C.P.  237.1(a(2) and 237.5 – Notice of Intent to Take Default Judgment (Important Notice)

 

Plaintiff’s notice said “YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE.”  By contrast, the rules require the notice to state “YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED O 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.”

 

The court held that under Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790 (Pa. Super. 2013) and and City of Philadelphia v. David J. Lane Adver., Inc., 33 A.3d 674, 679 (Pa. Commw. 2011), the plaintiff had to give “specific reasons” as to what defendant had failed to do and why defendant was in default, rather than just the general statement (“you have failed to take action”) required under the previous rule.  The Commonwealth Court examined the above legislative and judicial history in the context of its holding in Township of Chester v. Steuber, [] 456 A.2d 669 ([Pa. Commw.] 1983) and subsequentamendments to Rule 237.5. Id. at 678–80.   The court held that the amendments to Rule 237.5 “impose an additional notice requirement on a [AmeriChoice] who wishes to obtain a judgment by default ... the [AmeriChoice] must now include in the [Ten]–Day Notice specific reasons why the defendant is in default.” David J. Lane Advertising, 33 A.3d at 679 (emphasis in original).Oswald, 80 A.3d at 795-96.

 

The law is clear that generally, default judgments are disfavored. Attix v. Lehman, 925 A.2d 864, 866 (Pa. Super. 2007).  AmeriChoice failed to provide any indication on the face of the Notice of precisely why default judgment would be entered against Homeowners. This constitutes a failure to comply with the format contained in Pa.R.C.P. 237.5, and thus constitutes a violation of Pa.R.C.P. 237.1(a)(2). ... “It is well[]established that a record which reflects a failure to comply with Pa.R.C.P. 237.1 is facially defective and cannot support a default judgment.” Oswald, 80 A.3d at 796 (citationomitted). “Furthermore, since the prothonotary lacks authority to enter judgment under these circumstances, the default judgment would be void ab initio.” Id. at 797 (citation and italicization omitted). A default judgment that is void ab initio “must be stricken without regard to the passage of time.”

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