J-A17043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON F/K/A              IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK, AS TRUSTEE                     PENNSYLVANIA
FOR THE CERTIFICATE HOLDERS OF
CWMBS 2004-R2

                        Appellee

                   v.

JACQUELINE M. JOHNSON

                        Appellant                   No. 3409 EDA 2014


            Appeal from the Order Entered November 14, 2014
           In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): September Term, 2010 No. 3793


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JULY 15, 2015

     Appellant, Jacqueline M. Johnson, appeals from the order entered in

the Philadelphia County Court of Common Pleas, which denied her petition to

strike a default judgment entered in favor of Appellee, The Bank of New York

Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders of

CWMBS 2004-R2. We affirm.

     The relevant facts and procedural history of this appeal are as follows.

        This case commenced September 29, 2010, with the filing
        of a complaint in mortgage foreclosure on the premises of
        936 E. Phil Ellena Street, Philadelphia, PA 19150 by
        Appellee…. The complaint averred that Appellant was in
        default on a mortgage recorded at No. 0451, page 339, in
        the Office of the Recorder of Philadelphia County, and
        assigned at Mortgage Instrument No. 51951797.
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       On August 30, 2011, Appellee filed a Motion for Alternative
       Service, which averred that attempts to serve Appellant
       have been unsuccessful and that, following a good faith
       investigation, Appellant had no change of address on
       record from the mortgaged premises.

       On September 9, 2011, [the trial court] granted Appellee’s
       Motion for Alternative Service and allowed service of the
       complaint upon Appellant at 936 E. Phil Ellena Street,
       Philadelphia, PA 19150, by certified mail, first class regular
       mail, and posting of the premises.

       On September 20, 2011, Appellee filed an Affidavit of
       Service of the Complaint by regular mail and certified mail,
       return receipt requested, to Appellant at 3028 N. 26 th
       Street, Philadelphia, PA 19132 and 936 E. Phil Ellena
       Street, Philadelphia, PA 19150 on September 19, 2011.

       On September 22, 2011, Appellee filed an Affidavit of
       Service of the Complaint by posting of the premises at 936
       E. Phil Ellena Street, Philadelphia, PA 19150 on September
       20, 2011, at 11:30 a.m.

       On December 11, 2011, Appellee filed a Praecipe for
       Judgment by Default in the amount of $145,602.28.

       On March 13, 2012, Appellee filed a Praecipe for Writ of
       Execution.

       On April 18, 2012, Appellee filed a Motion to Reassess
       Damages.

       On May 17, 2012, [the trial court] amended the in rem
       judgment to a total of $168,095.41 plus interest from June
       5, 2012 through the date of sale at six (6) percent per
       annum.

       On May 21, 2012, Appellee filed an Affidavit of Service of
       Notice of Sale upon Appellant by certified mail and first
       class regular mail.

       On July 13, 2012, the Writ was returned as the sale was
       stayed by Appellee’s attorney.


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       On May 16, 2013, another Praecipe for Writ of Execution
       was filed on behalf of Appellee.

       On August 13, 2013, Appellee filed an Affidavit of Service
       of Notice of Sale upon Appellant by certified mail and first
       class regular mail to 936 E. Phil Ellena Street, Philadelphia,
       PA 19150 on June 7, 2013.

       On August 23, 2013, Appellant filed a Motion to Postpone
       Sheriff’s Sale and a Petition to Open Judgment. That same
       day, [the trial court] issued a Rule to Show Cause why the
       Motion to Postpone should not be granted. In her Petition
       to Open, Appellant argued that she had not been served
       and that she was incarcerated at the time the petition was
       served.

       On September 5, 2013, [the trial court] granted
       Appellant’s Motion to Postpone and postponed the Sheriff’s
       Sale until December 3, 2013, with no further notice or
       advertisement to be required.

       On September 12, 2013, Appellee filed an Answer in
       Opposition to Appellant’s Petition to Open Judgment.
       Appellee denied Appellant’s averments and further attested
       that the Complaint had been properly served after the
       grant of a Motion for Alternative Service, and that
       Appellant had not demonstrated a meritorious defense,
       filed a timely petition, or offered a reasonable excuse as to
       why the petition had not been timely filed.

       On October 29, 2013, [the trial court] denied Appellant’s
       Petition to Open Judgment.

       On October 31, 2013, the case was placed in deferred
       status due to Appellant’s pending bankruptcy.

       On August 27, 2014, the case was removed from deferred
       status.

       On September 5, 2014, Appellee filed a Praecipe for Writ
       of Execution.

       On September 26, 2014, Appellee filed an Affidavit of
       Service on Appellant by posting the premises of 936 E. Phil

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        Ellena Street, Philadelphia, PA 19150 on September 18,
        2014, as well as an Affidavit of Service on Appellant by
        personal service.

        On October 2, 2014, Appellant filed a Petition to Strike the
        Judgment as Appellee had failed to provide proof of service
        by certified mail; failed to set forth a specific averment of
        default; failed to attach a promissory note; and that
        Appellee was not the real party of interest in regard to the
        claim.

        On October 22, 2014, Appellee filed an Answer in
        Opposition to Appellant’s Motion, denying Appellant’s
        averments and attesting that service had been properly
        effectuated per Pa.R.C.P. 430. Appellee further argued
        that Appellant’s claims regarding the specific averment of
        default and attachment of the Promissory Note should
        have been raised as preliminary objections, and further,
        that Appellee was not required to attach the Note to its
        complaint.

        On November 14, 2014, [the trial court] denied Appellant’s
        [Petition] to Strike Judgment.

        On November 21, 2014, Appellant filed a timely Notice of
        Appeal….

        On November 24, 2014, [the trial court] issued its Order
        pursuant to Pa.R.A.P. 1925(b), directing Appellant to file
        her Concise Statement of [Errors] Complained of on Appeal
        within twenty-one (21) days.

        On November 25, 2014, Appellant filed her [Rule 1925(b)
        statement]….

(Trial Court Opinion, filed February 4, 2015, at 1-4) (internal footnote

omitted).

     Appellant raises two issues for our review:

        DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S
        PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN
        APPELLEE HAD FAILED TO PROVIDE PROOF OF SERVICE

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         OF ORIGINAL PROCESS BY CERTIFIED MAIL THAT WOULD
         INCLUDE A RETURN RECEIPT SIGNED BY [APPELLANT]?

         DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S
         PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN
         THE COMPLAINT, ON ITS FACE, FAILED TO STATE A
         CAUSE OF ACTION IN MORTGAGE FORECLOSURE,
         BECAUSE, INTER ALIA, NO UNDERLYING PROMISSORY
         NOTE WAS ALLEGED?

(Appellant’s Brief at 2).

      “An appeal regarding a petition to strike a default judgment implicates

the Pennsylvania Rules of Civil Procedure.”    Green Acres Rehabilitation

and Nursing Center v. Sullivan, 113 A.3d 1261, 1267 (Pa.Super. 2015).

         Issues regarding the operation of procedural rules of court
         present us with questions of law. Therefore, our standard
         of review is de novo and our scope of review is plenary.

         A petition to strike a judgment is a common law
         proceeding which operates as a demurrer to the record. A
         petition to strike a judgment may be granted only for a
         fatal defect or irregularity appearing on the face of the
         record. [A] petition to strike is not a chance to review the
         merits of the allegations of a complaint. Rather, a petition
         to strike is aimed at defects that affect the validity of the
         judgment and that entitle the petitioner, as a matter of
         law, to relief. A fatal defect on the face of the record
         denies the prothonotary the authority to enter judgment.
         When a prothonotary enters judgment without authority,
         that judgment is void ab initio. When deciding if there are
         fatal defects on the face of the record for the purposes of a
         petition to strike a [default] judgment, a court may only
         look at what was in the record when the judgment was
         entered.

Id. at 1267-68 (internal citations and quotation marks omitted).

      In her first issue, Appellant cites Pa.R.C.P. 405(c) for the proposition

that proof of service by certified mail must include a return receipt signed by

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J-A17043-15


a defendant. Appellant contends a plaintiff cannot prove service if a certified

mail return receipt lacks a defendant’s signature to demonstrate actual

delivery. Appellant asserts Appellee failed to prove service of the complaint

and case management order by certified mail, because Appellee did not

provide a return receipt signed by Appellant.       Appellant insists “no return

receipt was attached [to Appellee’s affidavit of service of complaint], signed

or unsigned.”     (Appellant’s Brief at 7) (emphasis in original).      Appellant

concludes Appellee’s failure to prove service of original process constituted a

fatal defect on the face of the record, and the court should have granted

Appellant’s petition to strike the default judgment on this basis.           We

disagree.

      The Pennsylvania Rules of Civil Procedure govern service by mail as

follows:

           Rule 403. Service by Mail

              If a rule of civil procedure authorizes original process to
           be served by mail, a copy of the process shall be mailed to
           the defendant by any form of mail requiring a receipt
           signed by the defendant or [her] authorized agent.
           Service is complete upon delivery of the mail.

                                    *    *    *

Pa.R.C.P. 403. Additionally, Rule 405 provides:

           Rule 405. Return of Service

              (a) When service of original process has been made
           the sheriff or other person making service shall make a
           return of service forthwith. If service has not been made
           and the writ has not been reissued or the complaint

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         reinstated, a return of no service shall be made upon the
         expiration of the period allowed for service.

                                 *    *    *

            (b) A return of service shall set forth the date, time,
         place and manner of service, the identity of the person
         served and any other facts necessary for the court to
         determine whether proper service has been made.

            (c)    Proof of service by mail under Rule 403 shall
         include a return receipt signed by the defendant or, if the
         defendant has refused to accept mail service and the
         plaintiff thereafter has served the defendant by ordinary
         mail,

                  (1) the returned letter with the notation that
            the defendant refused to accept delivery, and

                  (2) an affidavit that the letter was mailed by
            ordinary mail and was not returned within fifteen days
            after mailing.

Pa.R.C.P. 405(a), (b), (c).

      A party can also petition for alternative methods of service:

         Rule 430.   Service Pursuant to Special Order of
              Court. Publication

            (a) If service cannot be made under the applicable
         rule the plaintiff may move the court for a special order
         directing the method of service. The motion shall be
         accompanied by an affidavit stating the nature and extent
         of the investigation which has been made to determine the
         whereabouts of the defendant and the reasons why service
         cannot be made.

Pa.R.C.P. 430(a). “Due process, reduced to its most elemental component,

requires notice.” PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 230

(Pa.Super. 2007).    “The adequacy of this notice, as applied to substituted


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service, depends upon whether it is reasonably calculated to give the party

actual notice of the pending litigation and an opportunity to be heard.” Id.

        Instantly, Appellee filed a motion for alternative service on August 30,

2011.    In it, Appellee noted a process server unsuccessfully attempted to

serve Appellant at both the mortgaged premises and Appellant’s last known

address.1 Appellee also stated it had conducted a good faith investigation to

locate Appellant. Consequently, Appellee asked the court to enter an order

pursuant to Rule 430, directing service of the complaint and all future

pleadings by first class mail and posting of the mortgaged premises.

        The court granted Appellee’s motion for alternative service on

September 9, 2011. Specifically, the court permitted Appellee to serve the

complaint and all future pleadings by posting of the mortgaged premises and

first class and certified mail to Appellant at both the mortgaged premises

and her last known address.            The court also required Appellee to file a

certificate of service to ensure compliance with the court’s order.           On

September 20, 2011, Appellee filed an affidavit of service indicating it had

sent a copy of the complaint to Appellant at both the mortgaged premises

and her last known address via regular and certified mail, return receipt

requested.     On September 22, 2011, Appellee filed another affidavit of

service indicating it had served the complaint by posting of the mortgaged
____________________________________________


1
 The motion for alternative service listed Appellant’s last known address as
3028 North 26th Street in Philadelphia.



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premises.

      Contrary to Appellant’s argument, Rule 405 did not control the manner

of service at issue.   Rule 405 applies to “[p]roof of service by mail under

Rule 403….” See Pa.R.C.P. 405(c). Further, Rule 403 applies “[i]f a rule of

civil procedure authorizes original process to be served by mail.”       See

Pa.R.C.P. 403.    Appellee, however, did not proceed under Rules 403 and

405. Rather, Appellee effectuated service pursuant to a special order of the

court granting the motion for alternative service.      Here, Appellee fully

complied with the court’s special order.    Moreover, the court reasonably

calculated the manner of alternative service to give Appellant actual notice

of the pending litigation and an opportunity to be heard. See PNC Bank,

N.A., supra.     Therefore, Appellant has not demonstrated a fatal defect in

the record, and she is not entitled to relief on her first claim. See Green

Acres Rehabilitation and Nursing Center, supra.

      In her second issue, Appellant asserts a mortgage foreclosure

complaint must include a specific averment of default. Appellant contends

“[t]his means that the promissory note that the alleged mortgage purports

to secure must be attached to the complaint….”       (Appellant’s Brief at 8)

(emphasis in original).     Appellant maintains Appellee’s complaint was

deficient, because Appellee did not include the promissory note as an

attachment. Moreover, Appellant argues the complaint failed to allege that a

promissory note even existed, and Appellee did not aver that it legally


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owned the mortgage. Appellant concludes the court should have struck the

default judgment on this basis. We disagree.

      Pennsylvania Rule of Civil Procedure 1147 governs the content of

mortgage foreclosure complaints:

         Rule 1147. The Complaint

            (a)   The plaintiff 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).

      Instantly, Appellee filed its complaint on September 29, 2010.   The

complaint stated, in relevant part:

         2. The name(s) and       last known address(es) of the
         Defendant(s) are:

         [Appellant]
         936 EAST PHIL ELLENA STREET
         PHILADELPHIA, PA 19150-3606

         who is/are the mortgagor(s) and/or real owner(s) of the
         property hereinafter described.


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          3. On 12/20/1996 [Appellant] made, executed and
          delivered a mortgage upon the premises hereinafter
          described to COLUMBIA NATIONAL INC. which mortgage is
          recorded in the Office of the Recorder of PHILADELPHIA
          County, in Mortgage Book No. 0451, Page 339.         By
          assignment of Mortgage recorded 08/12/2008 the
          mortgage was assigned to [Appellee] which Assignment is
          recorded in Assignment of Mortgage Instrument No.
          51951797. The mortgage and assignment(s), if any, are
          matters of public record and are incorporated herein by
          reference in accordance with Pa.R.C.P. 1019(g); which
          Rule relieves [Appellee] from its obligations to attach
          documents to pleadings if those documents are of public
          record.

          4. The premises subject to said mortgage is described as
          attached.[2]

          5. The mortgage is in default because monthly payments
          of principal and interest upon said mortgage due
          12/01/2005 and each month thereafter are due and
          unpaid, and by the terms of said mortgage, upon failure of
          mortgagor to make such payments after a date specified
          by written notice sent to Mortgagor, the entire principal
          balance and all interest due thereon are collectible
          forthwith.

          6. The following amounts are due on the mortgage:

              Principal Balance                    $83,547.95
              Interest                             $35,369.61
              11/01/2005 through 09/28/2010
              (Per Diem $19.7265)
              Attorney’s Fees                      $   650.00
              Late Charges through 09/28/2010      $ 1,862.95
              Property Inspections/
              Property Preservations               $   387.25
              Mortgage Insurance Premium/
              Private Mortgage Insurance
____________________________________________


2
  The attachment contained a metes and bounds description of the
mortgaged premises.



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              Costs of Suit and Title Search       $   550.00
              Escrow Deficit                       $13,148.44
                    TOTAL                          $137,040.98

(See Complaint, filed 9/29/10, at 1-2; R.R. at 22a-23a.)           Consequently,

Appellee demanded an in rem judgment against Appellant for $137,040.98,

plus interest, costs, and fees. (Id. at 3; R.R. at 24a)

      Here, the trial court found “a complaint in mortgage foreclosure does

not need to include the original promissory note. The complaint did make a

specific averment that monthly installments were due…and that Appellant

failed to pay….” (See Trial Court Opinion at 5.) We agree and emphasize

that Appellee’s complaint fully complied with Rule 1147.          The complaint

listed the parties to the mortgage, the date of execution, and the

assignment to Appellee. See Pa.R.C.P. 1147(a)(1). An attachment to the

complaint described the land subject to the mortgage.             See Pa.R.C.P.

1147(a)(2).     The complaint set forth the name, address, and interest of

Appellant.    See Pa.R.C.P. 1147(a)(3).        Significantly, Appellee included a

specific averment of default, explaining that Appellant had failed to make her

required monthly payments since 2005.               See Pa.R.C.P. 1147(a)(4).

Appellee also provided an itemized statement of the amount due, and it

demanded judgment for that amount.              See Pa.R.C.P. 1147(a)(5), (6).

Because the complaint fully complied with Rule 1147(a), Appellant is not

entitled to relief on her second claim.

      Based on the foregoing, we conclude Appellant failed to demonstrate a


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fatal defect on the face of the record as it existed when judgment was

entered. See Green Acres Rehabilitation and Nursing Center, supra.

Therefore, the court properly denied Appellant’s petition to strike the default

judgment. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2015




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