J-A13026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  THE BANK OF NEW YORK MELLON               :    IN THE SUPERIOR COURT OF
  AS TRUSTEE FOR CIT MORTGAGE               :         PENNSYLVANIA
  LOAN TRUST 2007-1                         :
                                            :
                       Appellant            :
                                            :
                                            :
                  v.                        :
                                            :    No. 1665 WDA 2017
                                            :
  DAVID C. WILLIAMS                         :

              Appeal from the Order Entered October 10, 2017
     In the Court of Common Pleas of Allegheny County Civil Division at
                          No(s): MG-16-001360


BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY OLSON, J.:                FILED NOVEMBER 21, 2018

      I must respectfully dissent from my learned colleagues. I do not believe

that there is “a fatal defect or irregularity [that] is apparent from the face of

the record” in this case; therefore, I would vacate the trial court’s order in full.

I will explain.

      To summarize, on October 13, 2016, Appellant, the Bank of New York

Mellon, as Trustee for CIT Mortgage Loan Trust 2007-1, filed a complaint in

mortgage foreclosure against David C. Williams (hereinafter “Mr. Williams”),

seeking to foreclose upon Mr. Williams’ residential mortgage.            Within its

complaint, Appellant averred:

         On or about January 15, 2016, [Mr. Williams] was mailed
         Notice of Homeowner’s Emergency Assistance Act of 1983, in
         compliance with the Homeowner’s Emergency Assistance Act,
         Act 91 of 1983 and pursuant to 12 PA Code Chapter 31,
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          Subchapter B, Section 31.201 et seq. A true and correct copy
          of said Notice is attached hereto as Exhibit “D.”

Appellant’s Complaint, 10/13/16, at ¶ 9. Appellant then attached the Act 91

notice to its complaint. See id. at Exhibit “D.”

      Mr. Williams did not respond to the complaint and, after the requisite

notice, the prothonotary entered a default judgment, in rem, in favor of

Appellant and against Mr. Williams. Default Judgment, 12/20/16, at 1.

      On March 3, 2017, Mr. Williams filed a motion to strike the default

judgment. As is relevant to the current appeal, Mr. Williams claimed that the

judgment must be stricken because “there is nothing in the complaint or

record [that] avers or substantiates that the notice required under Section

403 of the Loan Interest and Protection Law [(hereinafter “Act 6”)] was sent

by registered or certified mail.”     Mr. Williams’ Motion to Strike Default

Judgment, 3/3/17, at ¶ 21 (internal emphasis and some internal capitalization

omitted).    The trial court agreed with Mr. Williams and struck the default

judgment because “the record lack[s] any indication that the notice of

intention to foreclose had been sent by [Appellant] to [Mr. Williams] via

registered or certified mail.” Trial Court Opinion, 12/5/17, at 1. The majority

affirms this aspect of the trial court’s order. Respectfully, I believe that the

trial court erred when it struck the default judgment and that we must

therefore vacate the trial court’s order.

      The trial court and the majority cited the proper standard that a court

must apply when ruling upon a motion to strike a default judgment.           To

repeat:

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        A petition to strike does not involve the discretion of the
        court. Instead, it operates as a demurrer to the record. A
        demurrer admits all well-pleaded facts for the purpose of
        testing conclusions of law drawn from those facts. Because
        a petition to strike operates as a demurrer, a court may only
        look at the facts of record at the time the judgment was
        entered to decide if the record supports the judgment. A
        petition to strike can only be granted if a fatal defect appears
        on the face of the record.

Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 918-919

(internal citations omitted).   Moreover, since a motion to strike a default

judgment is solely a question of law, our standard of review on appeal is de

novo and our scope of review is plenary.      Oswald v. WB Public Square

Assocs., LLC, 80 A.3d 790, 793 (Pa. Super. 2013).

      However, while the trial court and the majority cited the proper standard

for striking a default judgment, I believe that the courts incorrectly applied

the standard in the case at bar.

      As the majority recognizes, “[a]n Act 91 notice must contain all of the

required information of Act 6.”    Majority Memorandum at *6; see also 35

P.S. § 1680.403c(b)(1) (“[t]he [Pennsylvania Housing Finance Agency] shall

prepare a notice which shall include all the information required by this

subsection and by section 403 of” Act 6). Further, like Act 6, Act 91 mandates

that the combined Act 6/Act 91 notice be sent to the homeowner “[b]y

registered or certified mail.” 12 Pa. Code § 31.203(a)(6)(ii); see also 41 P.S.

403(b) (under Act 6, “[n]otice of intention to take action as specified in

subsection (a) of this section shall be in writing, sent to the residential



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mortgage debtor by registered or certified mail at his last known address and,

if different, at the residence which is the subject of the residential mortgage”).

Therefore, when Appellant averred in its complaint that, “[o]n or about

January 15, 2016, [Mr. Williams] was mailed Notice of Homeowner’s

Emergency Assistance Act of 1983, in compliance with” Act 91, Appellant

was not merely averring that the information sent in the notice was proper

(i.e., that the notice contained all information required by Act 91 and, ergo,

Act 6), but also that the notice satisfied all other requirements of Act 91,

including that the notice was sent to Mr. Williams “[b]y registered or certified

mail.”     Appellant’s Complaint, 10/13/16, at ¶ 9 (emphasis added); 12 Pa.

Code § 31.203(a)(6)(ii). Therefore, I would vacate the trial court’s order on

this basis alone, as the record indicates that Appellant, in fact, sent the

combined Act 6/Act 91 notice by registered or certified mail.

         Moreover, even if the majority disagrees with how I interpret paragraph

9 of Appellant’s complaint, it certainly cannot be said that paragraph 9 of, or

Exhibit “D” to, Appellant’s complaint demonstrates that Appellant did not

send the requisite notice by registered or certified mail. As noted, “[a] petition

to strike can only be granted if a fatal defect appears on the face of the

record.”     Cintas Corp., 700 A.2d at 918-919 (emphasis added).           In the

absence of any evidence or allegation in the complaint that Appellant failed

to send the combined Act 6/Act 91 notice by registered or certified mail, I




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believe that we must vacate the trial court’s order, as no defect regarding the

mailing or the notice appears “on the face of the record.”1
____________________________________________


1Moreover, no rule or law mandates that a plaintiff affirmatively aver that the
combined Act 6/Act 91 notice was sent by registered or certified mail. To be
sure, Pennsylvania Rule of Civil Procedure 1147 declares:

         (a) The plaintiff [in a foreclosure action] shall set forth in the
         complaint:

              (1) the parties to and the date of the mortgage, and of
              any assignments, and a statement of the place of record
              of the mortgage and assignments;

              (2) a description of the land subject to the mortgage;

              (3) the names, addresses and interest of the defendants
              in the action and that the present real owner is unknown
              if the real owner is not made a party;

              (4) a specific averment of default;

              (5) an itemized statement of the amount due; and

              (6) a demand for judgment for the amount due.

Pa.R.C.P. 1147(a). Simply stated, Rule 1147 contains no requirement that a
plaintiff aver the manner in which it mailed the notice.

I also observe that the note to Rule 1147 declares: “[i]f the mortgage is a
residential mortgage under Act No. 6 of 1974, 41 P.S. § 101, the complaint
should set forth an averment of compliance with the provisions of Section 403
of Act No. 6, 41 P.S. § 403.” Id. at Note. We have held that the language in
the Rule’s note is merely precatory. The Ministers and Missionaries
Benefit Bd. of the Am. Baptist Churches v. Goldsworthy, 385 A.2d 358,
364 (Pa. Super. 1978), disapproved of on other grounds by Marra v. Stocker,
615 A.2d 326 (Pa. 1992). Regardless, in the case at bar, Appellant averred
that, “[o]n or about January 15, 2016, [Mr. Williams] was mailed Notice of
Homeowner’s Emergency Assistance Act of 1983, in compliance with” Act
91. Appellant’s Complaint, 10/13/16, at ¶ 9 (emphasis added). As explained



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       I thus respectfully dissent.




____________________________________________


above, I believe this statement necessarily includes the averment that
Appellant sent the combined Act 6/Act 91 notice “[b]y registered or certified
mail.” See 12 Pa. Code § 31.203(a)(6)(ii). At the very least, the averment
cannot be construed to mean that Appellant did not send the notice by
registered or certified mail.


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