J-A02026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON                          IN THE SUPERIOR COURT OF
CORPORATION, AS TRUSTEE OF CHL                             PENNSYLVANIA
MORTGAGE PASS-THROUGH TRUST
2002-36 MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2002-36 C/O
NATIONSTAR MORTGAGE LLC

                            Appellants

                       v.

JOHN G. DIMOU AND ANNA DIMOU

                                                          No. 3804 EDA 2015


                    Appeal from the Order November 19, 2015
                 in the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2014-C-2609


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                                   FILED MAY 04, 2017

        Appellant, The Bank of New York Mellon Corporation, as Trustee of

CHL     Mortgage     Pass-Through       Trust   2002-36   Mortgage   Pass-Through

Certificates Series 2002-36 c/o Nationstar Mortgage, LLC, appeals the order

of November 19, 2015, granting Appellees John G. Dimou and Anna Dimou’s

motion for summary judgment and dismissing its complaint in mortgage

foreclosure with prejudice. We affirm.

        We adopt the following statement of facts from the trial court’s

opinion.     Trial Court Opinion (TCO), 2/25/16, at 1-2.        Appellant filed a
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*
    Former Justice specially assigned to the Superior Court.
J-A02026-17



complaint in mortgage foreclosure predicated on a May 2011 default by

Appellees.   Appellant obtained a default judgment against Appellees, who

subsequently filed a petition to open judgment.      In addition to requesting

that the court open the judgment because Appellant had prematurely

entered it, the petition asserted a prior, quiet title action was pending before

the Lehigh County court.     Appellants stipulated to opening the judgment.

The court ordered a non-jury trial to be held December 2, 2015. Appellees

filed an answer with new matter; Appellants filed a reply.

      On September 9, 2015, Appellees filed a motion for summary

judgment, arguing that the mortgage was deficient due to the fact that only

Mr. Dimou, not Mrs. Dimou, had executed the mortgage.                Appellants

requested an extension of time to respond; the trial court accordingly

extended the response deadline until November 8, 2015. Appellants did not

respond, and on November 19, 2015, the court granted Appellees’ motion

and dismissed Appellant’s complaint with prejudice. Appellant filed a motion

for reconsideration, averring that its failure to respond was the result of a

scheduling error and staffing transition. This motion was denied.

      Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial

court issued a responsive opinion.

      On appeal, Appellant raises the following issues for our review:

      I. Did the trial court commit an abuse of discretion, or error of
      law when it dismissed Appellant’s complaint in mortgage
      foreclosure for non pros with prejudice?

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      II. Did the trial court commit an abuse of discretion, or error of
      law when it granted Appellees’ motion for summary judgment?

      III. Did the trial court commit an abuse of discretion, or error of
      law when it denied Appellant’s petition to vacate, modify, open,
      or reconsider its November [19], 2015 order?

Appellant’s Brief at x.

      First, Appellant claims that the trial court committed an abuse of

discretion or error of law in dismissing Appellant’s complaint in foreclosure

for non pros with prejudice. See Appellant’s Brief at 1. Appellant contends

that because this dismissal did not amount to a final judgment on the

merits, nothing was adjudicated. Id. Accordingly, Appellant claims it should

not be precluded from bringing another claim in mortgage foreclosure from

the May 1, 2011 default. Id.

      This argument is inapposite, as the court did not grant Appellees a

judgment of non pros.     The Pennsylvania Rules of Civil Procedure provide

that a judgment of non pros may be entered in the following situations:

      (a) If an action is not commenced by a complaint, the
      prothonotary, upon praecipe of the defendant, shall enter a rule
      upon the plaintiff to file a complaint. If a complaint is not filed
      within twenty days after service of the rule, the prothonotary,
      upon praecipe of the defendant, shall enter a judgment of non
      pros.

      (b) The prothonotary, on praecipe of the plaintiff, shall enter
      judgment against the defendant for failure to file within the
      required time a pleading to a complaint which contains a notice
      to defend or, except as provided by subdivision (d), for any relief
      admitted to be due by the defendant's pleadings.




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See Pa.R.C.P. No. 1037. In the instant case, the court granted Appellees’

motion for summary judgment.                   See Pa.R.C.P. 1035.3.   Accordingly,

Appellant is not entitled to relief from a judgment of non pros.

       Next, Appellant claims that the trial court committed an abuse of

discretion or error of law in granting Appellees’ motion for summary

judgment.      See Appellant’s Brief at 7.           Appellant raises a number of

arguments in support of this claim. First, Appellant contends that summary

judgment is only proper where the right to judgment is free from doubt and

here, genuine issues of material fact existed due to Appellees’ denial of the

claims, Appellant’s denial of Appellees’ new matter, and the pendency of a

prior quiet title action. Id.

       Further, Appellant argues that the motion for summary judgment

improperly relied solely on claims asserted by Appellees.              Id. at 10.

Appellants argue that the statute of frauds does not preclude the

enforcement of the mortgage, because either spouse may act for both in

matters of entireties.      Id. at 13.     Appellants argue that the court should

have dismissed the motion for summary judgment for a violation of the

Nanty-Glo1 rule, as it was verified only by Appellees’ attorney. Id. at 14-

15. Finally, Appellant argues that the trial court lacked jurisdiction over the




____________________________________________


1
    Nanty-Glo v. American Surety Co., 163 A. 523 (1932).



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J-A02026-17



issues raised in the motion for summary judgment because of the pending

quiet title action. Id. at 16.

       Our scope and standard of review of an order granting summary

judgment are well-settled.

       [S]ummary judgment is properly granted where there is no
       genuine issue as to any material fact and ... the moving party is
       entitled to a judgment as a matter of law. Summary judgment
       may be granted only where the right is clear and free from
       doubt. The moving party has the burden of proving that there is
       no genuine issue of material fact. The record and any inferences
       therefrom must be viewed in the light most favorable to the
       nonmoving party, and any doubt must be resolved against the
       moving party. The trial court will be overturned on the entry of
       summary judgment only if there has been an error of law or a
       clear abuse of discretion.

First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 691 (Pa. Super.

1995) (internal citations and quotations omitted).

       We do not reach the merits of Appellant’s arguments. 2              The

Pennsylvania Rules of Civil Procedure provide guidance where a party fails to

respond to a motion for summary judgment:


____________________________________________


2
  Appellees’ motion for summary judgment argued that the mortgage was
invalid because Mrs. Dimou had not executed the mortgage, and the
property was held by both Mr. and Mrs. Dimou as tenants by the entireties.
See Motion for Summary Judgment, 9/9/15, at ¶¶ 1-14. But see J.R.
Christ Construction Co. v. Olevsky, 232 A.2d 196, 199 (Pa. 1967) (noting
the presumption that with respect to properties held by spouses as tenants
by the entireties, during term of marriage, either spouse has power to act
for both without specific authority so long as benefits of such action inure to
both).



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J-A02026-17


     (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 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.

     …

     (c) The court may rule upon the motion for judgment or permit
     affidavits to be obtained, depositions to be taken or other
     discovery to be had or make such other order as is just.

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

     …

Pa.R.C.P. 1035.3 (notes omitted).

     The Lehigh County Rules of Civil Procedure further provide that:

     (2) Any party opposing the motion shall file a response along
     with a supporting brief, within thirty (30) days after service of
     the motion. If a response is not filed as provided above, the
     court may treat the motion as uncontested.

Leh.R.C.P. 1035.2(a).

     Our Court has recognized that the failure to appropriately respond to a

motion for summary judgment permits, but does not require, the entry of

judgment in favor of the moving party. See, e.g., Payton v. Pennsylvania

Sling Co., 710 A.2d 1221, 1224 (Pa. Super. 1998).


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J-A02026-17


      Here,     Appellees   filed   their    motion   for   summary   judgment   on

September 9, 2015.          Appellants were granted an extension of time to

respond by November 8, 2015, but failed to do so. The trial court granted

the   summary     judgment     motion       on    November   19,   2015.   Per   the

Pennsylvania and Lehigh County Rules of Civil Procedure, as Appellant did

not respond to Appellees’ motion within the time allotted, the court was

permitted to treat the motion as uncontested and enter judgment. Thus, the

court did not abuse its discretion in granting Appellees’ motion. Strausser,

653 A.2d at 691; Payton, 710 A.2d at 1224; Pa.R.C.P. 1035.3; Leh.R.C.P.

1035.2(a).

      Finally, Appellant claims that the trial court erred in denying

Appellant’s motion to vacate, modify, open, or reconsider the November 18,

2015 order. See Appellant’s Brief at 17. Appellant contends that it met the

requirements for the opening of a judgment of non pros and that its motion

was unopposed. Id.

      As discussed above, Appellant was not entitled to relief from a

judgment of non pros, as no judgment of non pros was entered. Further, an

order denying reconsideration is unreviewable on appeal. See Huntington

Nat. Bank v. K–Cor, Inc., 107 A.3d 783, 787 (Pa. Super. 2014)

(“Pennsylvania case law is absolutely clear that the refusal of a trial court to

reconsider, rehear, or permit reargument of a final decree is not reviewable

on appeal.”).


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J-A02026-17


     Order affirmed.

     Judge Fitzgerald joins.

     Judge Ott files a concurring/dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2017




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