J-A28026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KTMT NEWBURY                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

TODD KRAUTHEIM

                        Appellant                      No. 943 EDA 2014


           Appeal from the Order Entered on February 24, 2014
             In the Court of Common Pleas of Bucks County
                     Civil Division at No.: 2013-07214


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                           FILED JANUARY 07, 2015

     Todd Krautheim appeals pro se from the order of February 24, 2014,

granting summary judgment in favor of KTMT Newbury (“KTMT”), successor-

in-interest of First Savings Bank of Perkasie (“First Savings”) in this

mortgage foreclosure action. In addition, Krautheim has filed a “Notice of

Challenge to Constitutionality of Statute,” in which he seeks relief from the

allegedly unconstitutional application of Rule 1.6 of the Pennsylvania Rules

of Professional Conduct.    We affirm the trial court’s order and deny the

motion.

     The trial court set forth the facts of this case as follows:

     On April 15, 2002, [First Savings] secured a Note (hereinafter,
     “Mortgage”) signed by Krautheim upon the residential premises
     at 186 East Ashland St., Doylestown, PA 18901. The Mortgage
     is recorded in the Office of the Recorder of Deeds of Bucks
     County.    The Mortgage was for $400,000 (four hundred
     thousand dollars) total, with interest at the rate of 5.75% (five
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     point seven five percent) per annum, and payments to be made
     monthly.    On September 18, 2013, First Savings filed a
     Complaint in Mortgage Foreclosure.      The Complaint alleges
     “[Krautheim] defaulted under the aforesaid documents by failing
     to timely make the required monthly installment payments of
     principal and interest [that were] due for the March 2013
     monthly payment and remain[] currently due for the August
     2013 payment and the months thereafter.”

     On October 11, 2013, Krautheim filed a Response to the
     Complaint. Krautheim argued that First Savings “has failed to
     make the previously arranged transfer of funds between
     accounts held at their institution,” and that “[t]he transfers of
     funds between the accounts is not a function which can be
     accomplished by [Krautheim].” Krautheim also generally denied
     the allegations of the Complaint, stating, “[Krautheim] has not
     defaulted on the mortgage. The bank has simply neglected to
     make the appropriate transfer of funds.” Krautheim failed to
     supplement his Answer with any accompanying evidence
     showing a prior arrangement for the transfer of any funds.

     On October 23, 2013, First Savings filed a Motion for Summary
     Judgment.      In its Motion, First Savings stated that
     “[Krautheim’s] Answer, as a whole, is non-responsive to [First
     Savings’] Complaint. [Krautheim] attempts to allege that he has
     not defaulted on his loan, but rather, that [First Savings] has
     failed to move funds between two accounts. [Krautheim] offers
     no support for this allegation.” In its Motion for Summary
     Judgment, First Savings attached an affidavit from their
     representative verifying the default status of the loans and the
     amounts due. They also attached a copy of the Mortgage.

     On November 27, 2013, Krautheim filed a Reply to First Savings’
     Motion for Summary Judgment.          In his Reply, Krautheim
     reiterated the statements made in his Answer, and again failed
     to attach any documents supporting his assertion that First
     Savings failed to transfer funds.       Krautheim’s Reply also
     suggests that First Savings should be responsible for showing
     the alleged transfer of funds agreement, and that First Savings’
     attorneys acted in an inappropriate manner.

     On February 24, 2014, the [trial c]ourt granted First Savings’
     Motion for Summary Judgment.

     On March 10, 2014, KTMT, as an assignee of First Savings, filed
     a Praecipe to Substitute Plaintiff, and requested that the

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        prothonotary list KTMT as the only party in the action by virtue
        of assignment of the parties.13
           13
             This praecipe and substitution of Plaintiff had no effect
           on the legal conclusions reached by the [c]ourt, or its
           analysis.

        On March 24, 2014, Krautheim filed his [pro se] Notice of Appeal
        with the Pennsylvania Superior Court.

Trial Court Opinion (“T.C.O.”), 5/29/2014, at 1-3 (record citations and most

footnotes omitted). On April 7, 2014, the trial court ordered Krautheim to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Krautheim timely complied on April 28, 2014. The

trial court entered its opinion pursuant to Pa.R.A.P. 1925(a) on May 29,

2014.

        Initially, we note that Krautheim’s pro se brief violates several rules of

appellate procedure. While we are willing to liberally construe materials filed

by a pro se appellant, see Grose v. P&G Paper Prods. (In re Grose), 866

A.2d 437, 439-40 (Pa. Super. 2005), our review is hampered by Krautheim’s

failure to include a statement of jurisdiction, a statement of the scope and

standard of review, a statement of questions involved, a statement of the

case, a summary of the argument, a separate argument section, and a short

conclusion stating the precise relief sought. See Pa.R.A.P. 2111(a), 2114,

2116(a), 2117, 2118 and 2119(a).           Krautheim’s brief consists of three

unnumbered pages with no citations to relevant case law or statutory




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authority. Notwithstanding these glaring errors, we have carefully reviewed

his brief and have gleaned the following issues therefrom1: Krautheim

challenges the jurisdiction of this Court, alleges a “failure to hold

proceedings,” and challenges KTMT’s standing.           Krautheim’s Brief at

unnumbered pages 1-2.

       Our standard of review of an order granting summary judgment is

well-settled:

       A reviewing court may disturb the order of the trial court only
       where it is established that the court committed an error of law
       or abused its discretion. As with all questions of law, our review
       is plenary.

       In evaluating the trial court’s decision to enter summary
       judgment, we focus on the legal standard articulated in the
       summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
       where there is no genuine issue of material fact and the moving
       party is entitled to relief as a matter of law, summary judgment
       may be entered. Where the non-moving party bears the burden
       of proof on an issue, he may not merely rely on his pleadings or
       answers in order to survive summary judgment. Failure of a
       non-moving party to adduce sufficient evidence on an issue
       essential to his case and on which it bears the burden of proof
       establishes the entitlement of the moving party to judgment as a
       matter of law. Lastly, we will view the record in the light most
       favorable to the non-moving party, and all doubts as to the
       existence of a genuine issue of material fact must be resolved
       against the moving party.
____________________________________________


1
      This Court may quash or dismiss an appeal where the appellant fails to
adhere to the requirements set forth in the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2101. In the case sub judice, we will address
only those arguments we can reasonably discern from Krautheim’s
substantively defective brief. See Kring v. Univ. of Pittsburgh, 829 A.2d
673, 675 (Pa. Super. 2003).



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JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (case citation omitted).

      In an action for mortgage foreclosure, the entry of summary
      judgment is proper if the mortgagors admit that the mortgage is
      in default, that they have failed to pay interest on the obligation,
      and that the recorded mortgage is in the specified amount. This
      is so even if the mortgagors have not admitted the total amount
      of the indebtedness in their pleadings.

Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998)

(citations omitted).

      First, we address, to the extent possible, Krautheim’s allegation that

the “jurisdiction of this Court and the elements of jurisdiction have not been

enumerated.” Krautheim’s Brief at 1. This claim is undeveloped and would

not merit relief.

      It is well-settled that “[t]he test for whether a court has subject matter

jurisdiction inquires into the competency of the court to determine

controversies of the general class to which the case presented for

consideration belongs.” In re Admin. Order No. 1-MD-2003, 936 A.2d 1,

5 (Pa. 2007). “It is the law of this Commonwealth that a judgment may be

attacked for lack of jurisdiction at any time, as any such judgment or decree

rendered by a court that lacks subject matter or personal jurisdiction is null

and void.”   Bell v. Kater, 943 A.2d 293, 298 (Pa. Super. 2008) (citation

omitted).

      The Rules of Civil Procedure govern mortgage foreclosure actions, see

Pa.R.C.P. 1141, et seq., and our courts of common pleas generally have

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unlimited original jurisdiction over all actions and proceedings in this

Commonwealth. See 42 Pa.C.S.A. § 931(a).               However, in the context of

mortgage foreclosures, “if adequate notice of the foreclosure action was not

given, the court lacked jurisdiction to enter judgment.” Meritor Mortgage

Corp.—E. v. Henderson, 617 A.2d 1323, 1326 (Pa. Super. 1992) (quoting

Vichosky v. Boucher, 60 A.2d 381, 382 (Pa. Super. 1948)).

        In the instant case, Krautheim does not state why he believes the trial

court or this Court lacks jurisdiction over a grant of summary judgment in a

mortgage foreclosure action.       See 42 Pa.C.S.A. § 931(a).        Nor does he

challenge the notice of foreclosure as inadequate. See Meritor, 617 A.2d at

1326.      In its complaint, KTMT states that, “[p]ursuant to applicable

Pennsylvania law, a Notice of Demand was forwarded to [Krautheim] on or

about August 16, 2013.”        Complaint, 9/18/2013, at 3 ¶ 9.           Krautheim’s

response does not allege any defect in the notice of foreclosure, instead

making the unsupported claim that “[t]he bank has simply neglected to

make     the   appropriate   transfer   of   funds.”     Response   to    Complaint,

10/11/2013, at 1 ¶ 6. Upon our review of the record, we discern no defect

that would prevent the trial court, and consequently this Court, from

exercising jurisdiction in this mortgage foreclosure case. See Bell, 943 A.2d

at 298; Meritor, 617 A.2d at 1326.            Accordingly, Krautheim’s assertion

regarding subject matter jurisdiction does not merit relief.




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      Second, Krautheim appears to allege trial court error in failing to hold

a hearing before granting KTMT’s motion for summary judgment.               The

entirety of his argument on this issue is as follows:

      The [c]ourt neglected to review, consider or hold any proceeding
      on the matter.

      The [c]ourt ignored the responses, motions and documents filed
      by [Krautheim] in the matter.

      The [c]ourt neglected to address the misinformation in the
      documents filed by [KTMT] including but not limited to deliberate
      logical fallacies intended to distract, misrepresent and misinform.

Krautheim’s Brief at 1 (unnumbered). We disagree.

      Preliminarily, Krautheim fails to identify with any specificity which

“responses, motions and documents” the trial court allegedly failed to

review, nor does he explain what “misinformation in the documents filed by

[KTMT]” misled the court.       Id.   Thus, we cannot address these bald,

undeveloped claims. See Pa.R.A.P. 2119(a).

      However, we will address his allegation that the court erred in failing

to hold a hearing in this matter. Pennsylvania Rule of Civil Procedure 1035.2

provides:

      Rule 1035.2. Motion

      After the relevant pleadings are closed, but within such time as
      not to unreasonably delay trial, any party may move for
      summary judgment in whole or in part as a matter of law

         (1)      whenever there is no genuine issue of any
         material fact as to a necessary element of the cause of
         action or defense which could be established by additional
         discovery or expert report, or


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         (2)       if, after the completion of discovery relevant to
         the motion, including the production of expert reports, an
         adverse party who will bear the burden of proof at trial has
         failed to produce evidence of facts essential to the cause of
         action or defense which in a jury trial would require the
         issues to be submitted to a jury.

Pa.R.C.P. 1035.2. Rule 1035.2 does not mandate that a court hold a hearing

prior to granting summary judgment, nor in our research have we found any

requirement that a trial court hold a hearing “after the relevant pleadings

are closed, but within such time as not to unreasonably delay trial.” Id. On

the contrary, the trial court explained:

      Bucks County Rule of Civil Procedure 208.3(b)(6) states that
      “[u]nless oral argument has been requested by the moving party
      in the praecipe, or by any other party within the 10-day period
      specified in subsection (2) hereof, the matter shall be disposed
      of by written order . . . .” After a movant has filed a praecipe
      and the accompanying documents, the opposing party “shall file
      a brief or memorandum of law with the clerk of the court,
      serving copies of same on all other parties.” During the next ten
      days, the opposing party may request an oral argument by filing
      an appropriate praecipe. Pursuant to Bucks County Rule of Civil
      Procedure 208.3(a), once receiving a motion, the Court may
      enter an appropriate order disposing of the motion.

T.C.O. at 7 (footnotes omitted).      Our independent review of the record

confirms the trial court’s assertion that First Savings did not request oral

argument.    In fact, on December 4, 2013, First Savings filed a praecipe

explicitly stating, “Oral argument is NOT requested.”     Praecipe under Rule

208.3(b), 12/4/2013, at 1.     At no point did Krautheim praecipe the court

himself or attempt to schedule oral argument. Thus, the trial court did not

abuse its discretion in granting summary judgment upon the basis of the


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parties’ filings where there was no genuine issue of material fact, and

neither party requested a hearing. Murray, 63 A.3d at 1261-62. This issue

does not merit relief.

      Third, Krautheim contends that First Savings and KTMT lack standing.

Specifically, he argues that First Savings “failed to produce evidence of

lawful standing to file the civil action against [Krautheim]” and KTMT “has

not produced evidence of [its] ownership of the note.” Krautheim’s Brief at

2-3 (unnumbered). Thus, “[t]he clear lack of standing in the claim permits

the Superior Court to return the matter to the [trial] court for proceedings,

or a withdrawal or dismissal as appropriate.” Id. We disagree.

      Pa.R.C.P. 2002 provides, in relevant part, that “[e]xcept as
      otherwise provided . . . all actions shall be prosecuted by and in
      the name of the real party in interest, without distinction
      between     contracts    under     seal   and    parol    contracts.”
      Pa.R.C.P. 2002(a). In Cole v. Boyd, 719 A.2d 311, 312-13 (Pa.
      Super. 1998), this Court indicated that a real party in interest is
      a “[p]erson who will be entitled to benefits of action if
      successful. . . . [A] party is a real party in interest if it has the
      legal right under the applicable substantive law to enforce the
      claim in question.” . . . See generally Levitt v. Patrick, 976
      A.2d 581 (Pa. Super. 2009) (indicating a mortgage secures the
      note); Brown v. Esposito, 42 A.2d 93 (Pa. Super. 1945)
      (indicating assignee may sue as real party in interest);
      American Society for Testing & Materials v. Corrpro
      Companies, Inc., 292 F.Supp.2d 713 (E.D. 2003) (indicating
      assignee stands in shoes of the assignor, assumes his rights, and
      since he has a right to be enforced, is a “real party in interest”).
      Simply put, . . . the recording of an assignment of the mortgage
      [is] not a prerequisite to [an a]ppellee having standing to seek
      enforcement of the mortgage via a mortgage foreclosure action.




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US Bank N.A. v. Mallory, 982 A.2d 986, 993-94 (Pa. Super. 2009)

(citations formatted; footnotes omitted).

      In its motion for summary judgment, First Savings identifies the

mortgage executed by Krautheim with First Savings, which sets forth his

obligations and First Savings’ remedies upon default.            See Motion for

Summary Judgment, 10/23/2013, Exhibit C; see also Pa.R.C.P. 1019(d)

(“In pleading an official document or official act, it is sufficient to identify it

by reference and aver that the document was issued or the act done in

compliance with law.”).     Therefore, First Savings had standing to initiate

mortgage    foreclosure   proceedings    when    Krautheim    defaulted    on   his

mortgage because it held the mortgage which secured the note.                   See

Mallory, 982 A.2d at 993-94.

      Subsequently, First Savings assigned the mortgage to KTMT, which

filed a praecipe to substitute plaintiff with the trial court, asserting that “the

parties have agreed KTMT Newbury, LP, as an assignee of First Savings Bank

of Perkasie, shall be Plaintiff in this action.” Praecipe to Substitute Plaintiff,

3/10/2014, at 1.    As an assignee, KTMT “stands in shoes of the assignor,

assumes [its] rights, and since [it] has a right to be enforced, is a ‘real party

in interest.’” Mallory, 982 A.2d at 993-94 (citing Am. Soc. for Testing &

Materials, 292 F.Supp.2d at 713). Thus, KTMT has standing to pursue the

underlying litigation, and need not produce the note in order to establish

that it is a real party in interest. Krautheim’s challenge does not merit relief.




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       Accordingly, the trial court did not err or abuse its discretion where

Krautheim’s challenges fail to raise a genuine issue of material fact that

would preclude the court from granting summary judgment in favor of KTMT.

       Finally, we turn to the “Notice of Challenge to Constitutionality of

Statute” filed by Krautheim with this Court on August 4, 2014.            In it, he

contends that Rule 1.6 of the Pennsylvania Rules of Professional Conduct 2
____________________________________________



2
       Rule 1.6, Confidentiality of Information, provides:

       (a) A lawyer shall not reveal information relating to
       representation of a client unless the client consents after
       consultation, except for disclosures that are impliedly authorized
       in order to carry out the representation, and except as stated in
       paragraphs (b) and (c).

       (b) A lawyer shall reveal such information if necessary to
       comply with the duties stated in Rule 3.3.

       (c)   A lawyer may reveal such information to the extent that
       the lawyer reasonably believes necessary:

             (1) to prevent the client from committing a criminal
          act that the lawyer believes is likely to result in death or
          substantial bodily harm or substantial injury to the
          financial interests or property of another;

              (2) to prevent or to rectify the consequences of a
          client’s criminal or fraudulent act in the commission of
          which the lawyer’s services are being or had been used; or

              (3) to establish a claim or defense on behalf of the
          lawyer in a controversy between the lawyer and the client,
          to establish a defense to a criminal charge or civil claim or
          disciplinary proceeding against the lawyer based upon
          conduct in which the client was involved, or to respond to
          allegations in any proceeding concerning the lawyer’s
          representation of the client.
(Footnote Continued Next Page)


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“collaterally affect[s] and negate[s] ‘the substantive rights of the litigant.’

Specifically, Rule 1.6 Confidentiality of Information causes a mandatory

conspiracy of silence within the courts [that] ignores the damage and harm

caused to litigants and prevents resolution.”        Notice of Challenge to

Constitutionality of Statute, 8/4/2014, Attachment (Letter to Attorney

General Kathleen Kane, 8/2/2014). We agree with KTMT that Krautheim’s

challenge is “irrelevant to the above-captioned appeal.” KTMT’s Answer to

Krautheim’s Notice of Challenge to Constitutionality of Statute, 8/21/2014,

at 1.

        Preliminarily, we observe that the Rules of Professional Conduct and

the Rules of Disciplinary Enforcement are promulgated by our Supreme

Court, which is vested with the authority to regulate the conduct of

attorneys pursuant to Article V, Section 10 of the Pennsylvania Constitution.

See Commonwealth v. Stern, 701 A.2d 568, 571 (Pa. 1997). Thus, Rule

1.6 is not, as Krautheim claims, a statute. Moreover, we must consider the

threshold question of whether Krautheim has standing to raise a challenge to

Rule 1.6:


                       _______________________
(Footnote Continued)

           (d)      The duty not to reveal information relating to
        representation of a client continues after the client-lawyer
        relationship has terminated.

Pa.R.P.C. 1.6.




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        [T]he requirement of standing under Pennsylvania law is
        prudential in nature, and stems from the principle that judicial
        intervention is appropriate only where the underlying
        controversy is real and concrete, rather than abstract.

        Under the concept of prudential standing, the challenger to a
        statute must demonstrate, inter alia, how he or she falls within
        the zone of interests intended to be protected by the statute,
        rule, or constitutional provision on which the claim is based.

Johnson v. Amer. Std., 966 A.2d 573, 577 (Pa. Super. 2009) (citations

and internal quotation marks omitted).        “[A] general allegation of harm is

insufficient in the absence of a link to the specific constitutional violation

being asserted.” Id. at 578.

        We have carefully reviewed Krautheim’s filings and nowhere does he

set forth which constitutional provisions are allegedly violated by Rule 1.6.

He makes passing reference to “substantive rights guaranteed by the U.S.

Constitution” but fails to demonstrate that any specific constitutional

provision has been violated in this case.      See Johnson, 966 A.2d at 577.

Furthermore, as noted by KTMT, “[a]t no time during this action[] has KTMT

used . . . Rule 1.6 to support its ability to obtain a judgment against

Krautheim for defaulting on his loan. At no time during this action[] did the

[trial] court use . . . Rule 1.6 to support its ability to grant a judgment

against Krautheim for defaulting on his loan.” KTMT’s Answer, 8/21/2014,

at 1.

        Krautheim has not established his standing to challenge Pennsylvania

Rule of Professional Conduct 1.6 in the instant mortgage foreclosure case.

Even if we were able to discern the nature of his objection to the rule, we


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would decline to develop an argument for him.     See Commonwealth v.

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (“We shall not develop an

argument for [the appellant], nor shall we scour the record to find evidence

to support an argument; consequently, we deem this issue waived.”).

     Order affirmed. Motion denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2015




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