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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EMC MORTGAGE, LLC                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

UNKNOWN      HEIRS,   SUCCESSORS,
ASSIGNS, AND ALL PERSONS, FIRMS OR
ASSOCIATIONS CLAIMING RIGHT, TITLE
OR INTEREST FROM OR UNDER HELEN
A. BROLLEY, DECEASED, AND JAMES M.
BROLLEY, (REAL OWNER)


                                                      No. 1031 MDA 2015
APPEAL OF: JAMES M. BROLLEY


                Appeal from the Judgment Entered July 23, 2015
                In the Court of Common Pleas of Luzerne County
                        Civil Division at No: 2012-02985


BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 16, 2016

        Appellant James M. Brolley appeals from the July 23, 2015 judgment

entered in the Court of Common Pleas of Luzerne County (“trial court”) in

favor of Appellee EMC Mortgage, LLC (“EMC”). Upon review, we vacate and

remand.

        The facts and procedural history underlying this case are undisputed.

On March 12, 2012, EMC filed a mortgage foreclosure complaint against

Appellant, requesting judgment against him for $108,160.50.        Appellant
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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answered pro se, claiming that EMC’s complaint should be dismissed based

on a prior judgment entered on September 9, 2010.           See Appellant’s

Answer, 5/17/12 (“[A] legal judgment has already been rendered in this

matter by Judge Peter Paul Olszewski.”); see also Appellant’s Reply to

EMC’s Summary Judgment Motion, 7/1/2013, at Exhibit C.        Approximately

one year after Appellant’s pro se answer, on April 22, 2013, EMC filed a

praecipe to vacate and discontinue the prior judgment entered at docket

number 2007-08805. EMC thereafter filed two summary judgment motions

in the matter sub judice, which the trial court denied. The case proceeded

to a bench trial, at the conclusion of which judgment was entered in favor of

EMC.    Appellant timely appealed to this Court.   In his Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, Appellant asserted, inter alia,

that the trial court erred in failing to consider the affirmative defenses of

collateral estoppel and res judicata, which Appellant claimed he properly

raised in his pro se answer to the March 12, 2012 complaint. In response,

the trial court issued a Pa.R.A.P. 1925(a) opinion, rejecting Appellant’s

assertion based on its conclusion that Appellant waived the affirmative

defenses as he failed to plead them under the heading “New Matter” as

required by Pa.R.C.P. No. 1030(a).

       On appeal, Appellant once again argues that the trial court erred in

failing to consider the affirmative defenses of collateral estoppel and res

judicata. We agree.

       Our standard of review is settled:

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              Our appellate role in cases arising from non-jury trial
       verdicts is to determine whether the findings of the trial court
       are supported by competent evidence and whether the trial court
       committed error in any application of the law. The findings of
       fact of the trial judge must be given the same weight and effect
       on appeal as the verdict of a jury. We consider the evidence in a
       light most favorable to the verdict winner. We will reverse the
       trial court only if its findings of fact are not supported by
       competent evidence in the record or if its findings are premised
       on an error of law. However, [where] the issue . . . concerns a
       question of law, our scope of review is plenary.

             The trial court’s conclusions of law on appeal originating
       from a non-jury trial are not binding on an appellate court
       because it is the appellate court’s duty to determine if the trial
       court correctly applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664-65

(Pa. Super. 2014) (citation omitted). Instantly, the trial court’s application

of Rule 1030 presents a question of law. Boatin v. Miller, 955 A.2d 424,

427 (Pa. Super. 2008) (citation omitted).

       With the foregoing in mind, it is well-established that our rules of civil

procedure are to be construed liberally. Green Acres Rehab. & Nursing

Ctr.   v.   Sullivan,   113   A.3d   1261,   1272   (Pa.   Super.   2015);   see

Pa.R.C.P. No. 126 (“The rules shall be liberally construed to secure the just,

speedy and inexpensive determination of every action or proceeding to

which they are applicable.”).

       Here, our review of the record reveals that Appellant indeed pled the

affirmative defenses of collateral estoppel and res judicata in his pro se

answer to the March 12, 2012 complaint.        We recognize Appellant did not

use the terms “collateral estoppel,” or “res judicata,” but he certainly alleged

sufficient facts to establish such affirmative defenses.    As noted earlier, in

his pro se answer, Appellant put EMC on notice by asserting “a legal

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judgment has already been rendered in this matter by Judge Peter Paul

Olszewski.”     Appellant’s Answer, 5/17/12.     There is no need to name an

affirmative defense “if facts sufficient to constitute the defense are pled.”

Iorfida v. Mary Robert Realty Co., 539 A.2d 383, 397 (Pa. Super. 1988)

(finding that a single paragraph of defendant’s new matter sufficiently raised

abandonment as an affirmative defense); accord Vill. of Four Seasons

Ass’n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814, 821 (Pa.

Super. 2014), appeal denied, 125 A.3d 778 (Pa. 2015). Thus, the trial court

erred in failing to construe liberally Appellant’s pro se answer to include the

affirmative defenses of collateral estoppel and res judicata where Appellant

alleged that a prior judgment controlled the disposition of the claims

asserted against him in the March 12, 2012 complaint. As a result, we are

constrained to vacate the trial court’s judgment in favor of EMC and remand

this matter to the trial court for consideration on the merits of Appellant’s

affirmative defenses.1


____________________________________________


1
  We note that EMC filed a praecipe to vacate and discontinue the prior
judgment almost 12 months after Appellant’s filing of his answer in the
matter sub judicie and almost 2½ years after the prior judgment was
entered. Relying on the praecipe, EMC argues that Appellant’s affirmative
defenses fail as a matter of law. We disagree. EMC cites no legal authority,
and our extensive research reveals none, that would support the filing of a
praecipe to vacate a prior judgment after another action that may relate to
the merits of the prior judgment was initiated. Regardless, we express no
opinion on the merits of Appellant’s affirmative defenses of collateral
estoppel and res judicata.



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     Judgment vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




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