J-A28044-14

NON-PRECEDENIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION, AS                IN THE SUPERIOR COURT OF
SUCCESSOR TRUSTEE TO BANK OF                            PENNSYLVANIA
AMERICA, N.A., AS SUCCESSOR TO
LASALLE BANK, N.A., AS TRUSTEE FOR
THE MERILL LYNCH FIRST FRANKLIN
MORTGAGE LOAN TRUST, MORTGAGE
LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-HI

                         Appellee

                    v.

STEVEN CORTEAL

                         Appellant                     No. 1242 EDA 2014


              Appeal from the Order Entered on March 25, 2014
               In the Court of Common Pleas of Chester County
                        Civil Division at No.: 12-06384


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

CONCURRING MEMORANDUM BY WECHT, J.:               FILED DECEMBER 03, 2014

      I join the learned majority’s affirmance of the trial court’s order

granting summary judgment to U.S. Bank National Association in this

mortgage foreclosure action because Steven Corteal failed duly to preserve

the issue he raises before this Court.      Furthermore, I join the majority’s

determination that an infirm verification under Pa.R.C.P. 1024 does not

implicate the trial court’s subject matter jurisdiction, as such.

      I write separately because I differ respectfully with the majority’s view

that a verification that categorically is at odds with Rule 1024 may be

overlooked—or has been overlooked in prior cases—simply because the
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mortgagor does not dispute the arrears underlying the foreclosure action. It

is true that our Rules of Civil Procedure grant trial courts discretion to

“disregard any error or defect of procedure which does not affect the

substantial rights of the parties.”            Pa.R.C.P. 126.   However, the majority

speaks too broadly in suggesting that a verification that patently violates the

letter and spirit of Rule 1024 does not, and perhaps cannot,1 affect “the

substantial rights of the parties.”        To the contrary, in Atlantic Credit &

Finance, Inc., v. Giuliana, 829 A.2d 340 (Pa. Super. 2003), this Court held

that “the requirement of a verification is not waivable because without it a

pleading is mere narration and amounts to nothing.”                       Id. at 344

(emphasis added) (quoting 2 Goodrich Amram 2d § 1024(a):1.                        We

reaffirmed this proposition in our recent decision in JP Morgan Chase

Bank, N.A., v. Murray, 63 A.3d 1258, 1271 (Pa. Super. 2013).                     If a

complaint is so deficiently verified2 as to comprise “mere narration,” it is

difficult to see how that does not implicate the substantial rights of the party

or parties named therein, and our cases remanding with direction for the
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1
      As set forth infra, the verification in this case was not trivially or
technically non-compliant—it was categorically so.
2
      This is not to dispute our observation in Monroe Contract Corp. v.
Harrison Square, Inc., 405 A.2d 954 (Pa. Super. 1979), that mere
“technical” deficiencies in a verification, when “inconsequential,” may not
require relief. Id. at 957. However, when the requirements of Rule 1024
are flouted entirely, the deficiency is neither “technical” nor
“inconsequential,” and I do not join the majority to the extent that it holds
otherwise.



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J-A28044-14



preparation of a compliant verification, as well as our case law imposing

more severe sanctions, establish as much. See George H. Althof, Inc., v.

Spartan Inns of Amer., Inc., 441 A.2d 1236, 1237-38 (Pa. Super. 1982)

(remanding for amendment of verification); Giuliana, 829 A.2d at 344-45

(“[T]here is no doubt but that the verification attached to the complaint in

the instant case falls so far short of the statutory mandate that the

verification is wholly defective and inadequate to support entry of . . .

judgment against [the] appellants.”).

       Moreover, in holding in Giuliana and again in Murray that the

verification requirement “is not waivable” there is at least the suggestion

that the majority’s determination in this case that Corteal waived his Rule

1024 objection by failing to raise it in the trial court is at odds with our case

law.   However, in both Giuliana and Murray, unlike in this case, the

adequacy of the verification had been raised by the defendant in preliminary

objections. Consequently, neither case addressed the question of waivability

writ large. Furthermore, Corteal only asserts non-waivability in connection

with his argument that a deficient verification vitiates this Court’s subject

matter jurisdiction, which, as noted above, I join the majority in rejecting.

See Maj. Memo. at 6 (citing Monroe Contr. Corp. v. Harrison Square,

Inc., 405 A.2d 954, 959 n.5 (Pa. 1979)). Inasmuch as Goodrich Amram’s

language, which we have twice adopted, might be understood in more than

one way, and because Corteal does not squarely address “non-waivability”

as stated in Giuliana and Murray, the question should await another day.

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       Finally, I write to note my disapproval of the trial court’s suggestion

that this Court’s discussion of Rule 1024 in Murray was dicta.          See Trial

Court Opinion, 5/27/2014, at 2 & n.2. While it is true that, in that case, we

took up Rule 1024 after determining that summary judgment had been

entered in error due to other legal infirmities, our discussion of that issue

was not gratuitous.         Rather, it preceded and explained our affirmative

direction to the trial court to address the serious deficiencies in the

verification on remand.         Specifically, after detailing the categorical non-

compliance of a verification—which, notably, was materially no more

deficient than the verification at issue in this case3—we directed the trial

court to address these deficiencies on remand.          See Murray, 63 A.3d at

1271 (“[G]iven the various uncertainties in this case, and even in the

presence of such an obvious violation of both the letter and the spirit of

Rule 1024, we are loath to deny ex cathedra [the a]ppellee’s opportunity to

____________________________________________


3
       Compare Murray, 63 A.3d at 1270 (quoting the verification), with
Complaint of U.S. Bank National Association at 5 (unnumbered) (material
identical verification in the instant matter).       Notably, in Murray, we
characterized the deficiencies in the verification at issue—which, again, was
very much like the verification in this case—as follows: “[T]he verification’s
omission of all material requirements of Rule 1024(c) not only is deficient,
but approaches the level of deficiency identified in Giuliana as perhaps not
even warranting an opportunity to amend the pleading to correct the error,
based upon the fact that no effort whatsoever was made to satisfy Rule
1024(c).” Murray, 63 A.3d at 1271. As the similarities between the
verifications in this case and Murray illustrate, Pennsylvania courts are no
strangers to verifications filed in foreclosure actions that show little regard
for the requirements of Rule 1024.



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amend its verification. Thus, on remand the trial court may, in its discretion,

furnish any plaintiff deemed proper in this matter the opportunity to offer a

new verification under Rule 1024, either by a representative of the duly

named plaintiff or by any other person who is qualified to attest to the

satisfaction of Rule 1024(c)’s precisely delineated requirements. However,

the [c]omplaint must duly be verified if this litigation is to proceed.”). I am

unaware of any definition of dicta that would apply to an instance in which,

following the detailed analysis of a duly raised and argued issue, an

appellate court grants relief by directing the trial court to rectify that

problem. I believe that the trial court plainly erred in dismissing Murray’s

discussion of Rule 1024 as dicta, and note for the trial court’s benefit that

our Rule 1024 discussion in that case should be understood as precedential

in the future.




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