J-S62045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PNC MORTGAGE, A DIVISION OF PNC                IN THE SUPERIOR COURT OF
BANK, NATIONAL ASSOCIATION                           PENNSYLVANIA

                            Appellee

                       v.

JEROLD HART

                            Appellant               No. 476 EDA 2014


              Appeal from the Judgment Entered January 7, 2014
               In the Court of Common Pleas of Monroe County
                    Civil Division at No(s): 11566 Civil 2010


BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED FEBRUARY 10, 2015

       Jerold Hart appeals from the judgment,1 entered January 7, 2014, in

the Monroe County Court of Common Pleas, in favor of PNC Mortgage, a

division of PNC Bank, National Association (“PNC”), and against Hart in the

amount of $374,623.74. The judgment was entered simultaneously with the

trial court’s order granting PNC’s motion for summary judgment in this

mortgage foreclosure action. On appeal, Hart argues the trial court’s grant

of summary judgment was premature because (1) PNC failed to respond to

outstanding discovery requests, and (2) genuine issues of material fact still
____________________________________________


1
  We note that Hart purports to appeal from the January 7, 2014, order
granting summary judgment.         Because a monetary judgment of
$374,623.74 was entered by the same order, we will consider the appeal
from the entry of judgment. See Order, 1/7/2014.
J-S62045-14



exist as to whether PNC has standing in this action. For the reasons that

follow, we affirm.

         This action involves a mortgage loan in the amount of $291,127.00,

executed by Hart and First Continental Mortgage, LLC, on June 26, 2009, for

a property located at 101 Smiley Lane, Stroudsburg, Pennsylvania.        The

mortgage was subsequently assigned to National City Bank, which later

merged with PNC.           On December, 2, 2010, PNC filed a complaint in

mortgage foreclosure, averring Hart had been in default on the loan since

July 1, 2010.     Hart filed an answer and new matter, to which PNC filed a

reply.     Thereafter, on June 23, 2011, Hart served PNC with a set of

interrogatories and a request for production of documents.

         From May of 2012, until January of 2013, the action was stayed while

the parties participated in Monroe County’s Residential Mortgage Diversion

Program.      However, the stay was lifted on January 31, 2013, when the

parties were unable to reach an agreement.        Thereafter, on August 14,

2013, PNC sent Hart a package of documents in response to Hart’s

interrogatories and document requests.2




____________________________________________


2
   See Praecipe to Attach Missing Exhibit, 11/25/2013, Letter from PNC to
Hart’s Counsel, 8/14/2013 (stating “In response to your interrogatories and
document production requests, I am enclosing the following: … Origination
file; Loss mitigation file; Collection history; Correspondence; and Payment
history, 2009-2010.”).



                                           -2-
J-S62045-14



       On October 7, 2013, PNC filed a motion for summary judgment,

asserting there were no genuine issues of material fact and it was entitled to

judgment as a matter of law.                   See Motion for Summary Judgment,

10/7/2013, at ¶ 3.      On November 1, 2013, Hart filed an answer, contending

that summary judgment was premature due to PNC’s failure to answer his

discovery requests. Answer of Defendant to Motion for Summary Judgment,

11/1/2013, at ¶¶ 3-4. Following argument before the trial court, on January

7, 2014, the court granted PNC’s motion, and entered judgment in favor of

PNC in the amount of $374,623.74, plus costs. This timely appeal followed. 3

       On appeal, Hart contends the trial court erred when it prematurely

granted PNC’s motion for summary judgment. First, Hart argues PNC failed

to respond to its request for interrogatories and production of documents,

which he claims are “crucial to the defense of this claim.”4 Hart’s Brief at

12. Second, Hart asserts there exists a genuine issue of material fact as to

whether PNC is the legal owner of the mortgage. Specifically, Hart argues

he denied this averment in his answer, and “demanded strict proof[.]” Id.



____________________________________________


3
  On March 3, 2014, the trial court ordered Hart to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hart
complied with the court’s directive and filed a concise statement on March
24, 2014.
4
  We note that Hart does not detail what documents are still missing, or how
the information PNC has purportedly not provided is “crucial to the defense
of this claim.” Hart’s Brief at 12.



                                           -3-
J-S62045-14



at 13. Accordingly, Hart contends the trial court erred in granted summary

judgment in favor of PNC.

     Our standard of review is well-established:

     We review an order granting summary judgment for an abuse of
     discretion. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of
     Pittsburgh, PA, 83 A.3d 418, 420 (Pa.Super. 2013). Our scope
     of review is plenary, and we view the record in the light most
     favorable to the nonmoving party. Id. 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.

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

     Furthermore, when considering a mortgage foreclosure action, we

must bear in mind:

     The holder of a mortgage has the right, upon default, to bring a
     foreclosure action. The 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 464-465 (citation omitted and emphasis supplied). “This is so even if

the mortgagors have not admitted the total amount of the indebtedness in

their pleadings.” Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa.

Super. 1998), appeal denied, 734 A.2d 861 (Pa. 1999).

     The trial court, in its Rule 1925(a) opinion, provided a thorough

summary of the applicable law and a well-reasoned discussion of the issues


                                   -4-
J-S62045-14



raised by Hart on appeal.          See Trial Court Opinion, 4/22/2014, at 3-11

(finding (1) Hart concedes that on August 14, 2013, PNC submitted to him

602 pages of categorized documents in response to his discovery requests;

(2) Hart never sought sanctions against PNC for its failure to comply with his

discovery requests prior to the motion for summary judgment; (3) summary

judgment may be granted despite outstanding discovery “where the

information sought by the non-moving party would not have been germane

to the issues presented by the movant[;]”5 (4) Hart had “all the information

he needed in order to defend against [PNC’s] Motion for Summary

Judgment[;]”6 (5) because, pursuant to Pa.R.C.P. 1029(b), the averments in

a pleading must be specifically denied, Hart’s general denials to the

allegations in PNC’s complaint, particularly with regard to facts within his

knowledge and control, had the effect of admissions; and (6) Hart,

effectively admitted “that he is a party to the mortgage, that [PNC] is the

rightful owner of the Mortgage and the Note, that the mortgage is in default

and that the mortgage is in the specified amount[;]”7 therefore, there are no

____________________________________________


5
  Trial Court Opinion, 4/22/2014, at 6, citing Burman v. Golay and Co.,
Inc., 616 A.2d 657, 659 (Pa. Super. 1992), appeal denied, 624 A.2d 108
(Pa. 1993).
6
 Id. We reiterate Hart does not explain what discovery he is missing, and
how that information impacted his ability to defend this action.
7
    Id. at 11.




                                           -5-
J-S62045-14



disputed issues of material fact, and summary judgment was properly

granted in favor of PNC).8

       Our independent review of the record reveals ample support for the

trial court’s conclusions.      Therefore, we adopt the sound reasoning of the

Honorable Jerome P. Cheslock as dispositive of claims raised by Hart on

appeal, and affirm the judgment in favor of PNC.

       Judgment affirmed.




____________________________________________


8
  We note Hart’s primary complaint appears to be that PNC has not
demonstrated it is the legal owner of the mortgage. See Hart’s Brief at 13-
14. In its brief in support of its motion for summary judgment, PNC
explained the chain of ownership as follows:

       Said mortgage was recorded on June 26, 2009 in the Monroe
       County Recorder’s Office at Mortgage Book Volume 2355, Page
       6787. [PNC’s] predecessor, National City Bank [], acquired its
       interest in the mortgage by assignment dated August 5, 2009
       that was recorded on August 17, 2009 in said Recorder’s Office
       in Book 2385, page 3772.

PNC’s Brief in Support of Motion for Summary Judgment, 11/15/2013, at 1
(footnote omitted). Furthermore, PNC attached to its motion for summary
judgment an affidavit from an authorized signer at PNC stating that,
effective November 6, 2009, National City Bank merged with PNC. See
Affidavit Pursuant to Pa.R.C.P. 1035.4 and 76 in Support of Motion for
Summary Judgment, 10/7/2013, at ¶ 2. Hart has provided no evidence
contesting the legitimacy of these claims. Accordingly, the trial court was
entitled to accept these unchallenged facts as true. See Bank of Am.,
N.A., supra, 102 A.3d at 464 (“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.”), citing Pa.R.C.P. No. 1035.3.



                                           -6-
J-S62045-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




                          -7-
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
Circulated 01/23/2015 10:09 AM
