J-A23030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    U.S. BANK, N.A., IN ITS CAPACITY           :   IN THE SUPERIOR COURT OF
    AS TRUSTEE FOR MORGAN STANLEY              :        PENNSYLVANIA
    DEAN WITTER CAPITAL I INC. TRUST           :
    2001-NC4, BY ITS ATTORNEY IN               :
    FACT OCWEN LOAN SERVICING, LLC             :
                                               :
                                               :
                v.                             :
                                               :   No. 407 WDA 2018
                                               :
    JAMES SUCHETSKI A/K/A JAMES                :
    SUCHETSKI, JR. AND JAMES                   :
    SUCHETSKI A/K/A JAMES                      :
    SUCHETSKI, SR.                             :
                                               :
                                               :
    APPEAL OF: JAMES SUCHETSKI                 :
    A/K/A JAMES SUCHETSKI, SR.                 :

              Appeal from the Judgment Entered March 12, 2018
    In the Court of Common Pleas of Westmoreland County Civil Division at
                            No(s): 7099 of 2011


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 30, 2018

       James Suchetski, Sr. (“James Sr.”) appeals from the judgment entered

in the Court of Common Pleas of Westmoreland County, following the entry of

summary judgment in favor of U.S. Bank N.A. (“Bank”) in this mortgage

foreclosure action.1 We affirm.

       Using the name James Suchetski, James Suchetski, Jr. (“James Jr.”)

signed a promissory note (“Note”) on September 19, 2001, to borrow $47,250

____________________________________________


1   James Suchetski, Jr. filed a separate appeal at 406 WDA 2018.
J-A23030-18


from Bank (“Loan”).        In consideration of the Loan, James Jr. executed a

mortgage in favor of Bank (“Mortgage”) on the same date and under the same

name, pledging property located at 273 Kochka Drive, Apollo, Pennsylvania

(the “Property”), and warranting that he had title to the Property.2     The

Property consists of two parcels. James Jr.’s mobile home is located on one

parcel; the other parcel is vacant. The Mortgage was recorded on October 15,

2001, and contains an express representation that James Jr. owns the

Property. The Mortgage also bears James Jr.’s initials on each page and his

signature on the execution line.

       James Jr. failed to make a monthly mortgage payment on June 1, 2011,

and each month thereafter, in breach of the Note and Mortgage. Thus, Bank

filed a foreclosure action on October 28, 2011, naming James Jr. as the

defendant. After a series of unsuccessful preliminary objections, James Jr.

filed an Answer and New Matter on April 16, 2012. Following discovery, Bank

requested and was granted leave to file an amended complaint, adding

James Sr. as a co-defendant. Amended Complaint, 5/4/15. James Sr. filed

an Answer and New Matter to the Amended Complaint on July 30, 2015,

asserting that he owned the Property and that he did not authorize James Jr.

to encumber the Property. James Sr.’s Brief at 3.

____________________________________________


2  The deed for the Property was dated June 4, 1992, and recorded June 16,
1992, in the Westmoreland County Recorder of Deeds office. The deed
identifies “James Suchetski” as owner.



                                           -2-
J-A23030-18


       Bank filed a motion for summary judgment on November 28, 2017.

James Sr. did not file a response in opposition to Bank’s motion pursuant to

Westmoreland Local Rule of Civil Procedure (“Local Rule”) W1035.2(a)(2)(a).3

The trial court heard oral argument from Bank’s counsel on January 31, 2018.

Given James Sr.’s failure to file a response to Bank’s motion, his counsel was

prohibited from arguing pursuant to Local Rule W1035.2(a)(3)(b). 4             In an

order dated February 14, 2018, the trial court entered summary judgment in

favor of Bank on two grounds. Procedurally, James Sr. did not file a timely


____________________________________________


3   This rule reads as follows:

       (2) Filing and Service requirements for Briefs in opposition
       to the Motion for Summary Judgment.

       (a) Within thirty (30) days of service of the moving party’s Motion
       and Brief, a party to whom a Motion for Summary Judgment is
       directed shall file a Brief in opposition, unless that party has
       requested and obtained an Order of court granting leave to
       supplement the record pursuant to Pa.R.C.P. 1035.3, in which
       event the court shall set a briefing schedule. If an Order granting
       such leave is not obtained, there shall be no extension of the thirty
       (30) day period for filing the Brief or continuance of the argument
       to allow supplementation of the record.

Local Rule W1035.2(a)(2)(a)

4   This rule reads as follows:

       (3) Sanctions. . . . (b) If a non-moving party shall fail to comply
       with the requirements of this rule, that party shall not be
       permitted to present any oral argument.

Local Rule W1035.2(a)(3)(b)



                                           -3-
J-A23030-18


brief in opposition to Bank’s motion. Substantively, no issues of material fact

existed as to (1) the validity of the mortgage, (2) James Jr.’s intent to

mortgage James Sr.’s property, (3) James Sr.’s assertion of defenses, (4) the

mortgage being in default, and (5) the amount of damages.             James Sr.

appealed. James Sr. and the trial court complied with Pa.R.A.P. 1925.

       On appeal, James Sr. appears to challenge the trial court’s entry of

summary judgment in favor of Bank based on its ruling that James Sr. filed

“general denials to matters requiring specific denials.” James Sr.’s Brief at 2.5

Generally:

       [w]e review an order granting summary judgment for an abuse of
       discretion. Our scope of review is plenary, and we view the record
       in the light most favorable to the nonmoving party. A party
       bearing the burden of proof at trial is entitled to summary
       judgment “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[.]”
       Pa.R.C.P. No. 1035.2(1). In response to a summary judgment
       motion, the nonmoving party cannot rest upon the pleadings, but
       rather must set forth specific facts demonstrating a genuine issue
       of material fact. Pa.R.C.P. No. 1035.3.



____________________________________________


5  James Sr.’s appellate brief does not include a Statement of the Questions
Involved as required by Pa.R.A.P. 2111(a)(4) and 2116(a). However, his
Summary of the Argument, found on page two of his brief, sets forth the
claims he raises. Additionally, James Sr.’s brief does not include a copy of his
Pa.R.A.P. 1925(b) statement or a copy of the trial court opinion, as required
by Pa.R.A.P. 2111(a)(10), (11), and 2111(b). Because James Sr.’s violations
do not preclude effective appellate review, we will consider the claims raised
on appeal. See Barrick v. Holy Spirit Hosp. of the Sisters of Christian
Charity, 32 A.3d 800, 804 (Pa. Super. 2011) (“Upon consideration, we
determine that the deficiencies found in [a]ppellants’ substituted brief do not
substantially hinder our ability to conduct meaningful appellate review.”).

                                           -4-
J-A23030-18


Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014)

(some internal citations omitted). Specifically, “[t]he holder of a mortgage is

entitled to summary judgment if the mortgagor admits that the mortgage is

in default, the mortgagor has failed to pay on the obligation, and the recorded

mortgage is in the specified amount.” Id. at 465.

       James Sr. asserts trial court error and abuse of discretion in granting

Bank’s summary judgment motion where genuine issues of material fact are

in dispute regarding his ownership of the Property, the validity of the

Mortgage, and the nature of his denial. James Sr.’s Brief at 3–6. Upon review,

we conclude that James Sr. is not entitled to relief.

       Pa.R.C.P. 1035.3 sets forth the procedure for a party’s response to a

motion for summary judgment, and the potential consequence of failure to

respond. It states, in pertinent part, as follows:

       (a) Except as provided in subdivision (e), the adverse party may
       not rest upon the mere allegations or denials of the
       pleadings but must file a response within thirty days after
       service of the motion[6] identifying

              (1) one or more issues of fact arising from evidence
              in the record controverting the evidence cited in
              support of the motion or from a challenge to the
              credibility of one or more witnesses testifying in
              support of the motion, or

              (2) evidence in the record establishing the facts
              essential to the cause of action or defense which the
              motion cites as not having been produced.


____________________________________________


6   Local Rule W1035.2(a)(2)(a) mirrors this thirty-day response requirement.

                                           -5-
J-A23030-18


                                          * * *

       (d) Summary judgment may be entered against a party who does
       not respond.

Pa.R.C.P. 1035.3(a)(1)–(2), (d) (emphasis supplied). Thus, the non-moving

party bears an affirmative duty to respond to a motion for summary judgment,

and if that party does not respond, the trial court may enter summary

judgment on that basis. See Harber Philadelphia Center City Office Ltd.

V. LPCI Ltd. Partnership, 764 A.2d 1100 (Pa. Super. 2000) (“If the non-

moving party does not respond, the trial court may grant summary judgment

on that basis.” (citing Pa.R.C.P. 1035.3(d)).

       In the instant case, James Sr. failed to respond to Bank’s motion for

summary judgment, despite the clear legal authority obligating him to do so.

The trial court did not rule on Bank’s motion until two and one-half months

after Bank filed it, well beyond the thirty-day deadline for James Sr. to file a

response. Under these circumstances, we conclude that the trial court did not

err or abuse its discretion in entering summary judgment in favor of Bank.

Pa.R.C.P. 1035.3(d). Accordingly, we affirm the judgment of the trial court.7

       Judgment affirmed. Application to Strike denied.




____________________________________________


7  Bank has filed an application to strike the deposition of James Sr. submitted
by James Sr. as a supplemental record. Application to Strike, 8/17/18. In
light of our disposition of this appeal, we deny the application as moot.

                                           -6-
J-A23030-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2018




                          -7-
