J-A24031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    WEST COAST SERVICING, INC.                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANCES E. GORE AND RUSSELL W.             :
    GORE A/K/A RUSSELL W. GORE, JR.            :
                                               :   No. 652 EDA 2019




                Appeal from the Order Entered February 1, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): 02647 January Term, 2017


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED NOVEMBER 25, 2019

        Appellants, Frances E. Gore and Russell W. Gore a/k/a Russell W. Gore,

Jr., appeal from an order entered on February 1, 2019 by the Honorable Paula

A. Patrick, granting summary judgment in favor of West Coast Servicing, Inc.

(Appellee). We affirm.

        Appellee filed a complaint in mortgage foreclosure on January 19, 2017

against Appellants seeking $73,555.41 in damages for Appellants’ failure to

make payments on the mortgage. On May 2, 2018, Appellants filed an Answer

that denied liability and on August 13, 2018, Appellants filed an Amended




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Answer with New Matter, asserting that the defense of laches barred Appellee

from bringing this action fifteen years after the initial breach occurred.

       On December 12, 2018, at the close of discovery, Appellee filed a Motion

for Summary Judgment. Appellants failed to respond to the motion and on

January 15, 2019, the trial court granted summary judgment in favor of

Appellee for foreclosure and sale of the mortgaged property and assessed

damages of $88,187.10. On January 16, 2019, Appellants filed a motion to

reconsider, alleging summary judgment was improper because they raised the

defense of laches and, therefore, a genuine issue of material fact existed as

to the amount of the mortgage. Appellants failed to explain why they did not

respond to the motion for summary judgment. On February 1, 2019, the trial

court denied Appellants’ motion for reconsideration. On February 7, 2019,

Appellants filed a timely appeal.1

       In this appeal, Appellants do not contend there were any genuine

disputes of material fact as to their non-payment of mortgage or amount

owed; rather, Appellants raise only the following issue on appeal:

       Whether the defense of laches raises a viable issue as to the
       amount of debt/mortgage owed to [Appellee] by [Appellants].

Appellant’s Brief at 7.      Our standard of review of the trial court’s grant of

summary judgment is de novo and the scope of review is plenary. Pyeritz v.



____________________________________________


1Appellants filed their timely statement of errors complained of on appeal on
February 26, 2019. The trial court entered its opinion on April 9, 2019.

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Commonwealth, 32 A.3d 687, 692 (Pa. 2011); American Southern

Insurance Co. v. Halbert, 203 A.3d 223, 226 (Pa. Super. 2019).

      Confronted with a motion for summary judgment setting forth evidence

establishing the moving party’s right to relief, “the adverse party may not rest

upon the mere allegations or denials of the pleadings,” Pa.R.C.P. 1035.3(a),

but must identify evidence controverting the evidence cited in support of the

motion or establishing the facts essential to the defense that the motion cites

as not having been produced, Pa.R.C.P. 1035.3(a)(1)-(2). “[W]here a motion

for summary judgment has been made and properly supported, parties

seeking to avoid the imposition of summary judgment must show by specific

facts in their depositions, answers to interrogatories, admissions or affidavits

that there is a genuine issue for trial.” Marks v. Tasman, 589 A.2d 205, 206

(Pa. 1991). Additionally,

      [T]he 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. . . evidence in the
      record establishing the facts essential to the cause of action or
      defense which the motion cites as not having been produced. . .
      .

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

Pa.R.C.P. 1035.3 (a), (d) (emphasis added).

      The trial court granted summary judgment in favor of Appellee because

“Appellant failed to respond to Appellee’s Motion for Summary Judgment and

did not offer any reasonable excuse for that failure in Appellant’s January 16,

2019, Motion for Reconsideration.” Trial Court Opinion (TCO) at 3. “Pa.R.C.P.

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1035.3(a) plainly requires the adverse party to a summary judgment motion

to respond thereto.” Payton v. Pennsylvania Sling Co., 710 A.2d 1221,

1224 (Pa. Super. 1998). “We recognize, however, that the failure to respond

appropriately permits the entry of judgment in favor of the moving party, but

does not require such.” Id.     “If the non-moving party does not respond [to

a motion for summary judgment], the trial court may grant summary

judgment on that basis.” Harber Philadelphia Ctr. City Office Ltd. v. LPCI

Ltd. P'ship, 764 A.2d 1100, 1104 (Pa. Super. 2000). Thus, the trial court

had authority to grant summary judgment in Appellee’s favor on the ground

that it was unopposed. Accordingly, we find no error of law in the trial court’s

granting of Appellee’s unopposed motion for summary judgment based upon

Appellants’ failure to file a response.

      Moreover, the sole argument raised by Appellants is without merit.

Appellants argue that the trial court erred by granting summary judgment in

favor of Appellee because “the defense of laches raises a viable issue as to

the amount of debt/mortgage owed to the [Appellee] by [Appellants].”

Appellant’s Brief at 7.   Appellants argue that this Court should apply the

equitable doctrine of laches to bar Appellee from collecting on the debt

because fifteen years is an “unreasonable delay,” Appellees “acquiesce[d] in

the mortgage being in default” and there was prejudice to Appellants due to

the delay. Id. at 12.




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      Laches is an affirmative defense to an equitable claim.          Fulton v.

Fulton, 106 A.3d 127, 131 (Pa. Super. 2014) (the doctrine of laches is an

equitable bar to the prosecution of stale claims and is “the practical application

of the maxim that ‘those who sleep on their rights must awaken to the

consequence that they have disappeared.’”). This is a mortgage foreclosure

claim, brought as a breach of contract claim seeking monetary damages. “A

claim for money due and owing under a contract is ‘quintessentially an action

at law.’” Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210

(2002). Laches is not a defense to an action at law. Leedom v. Spano, 647

A.2d 221, 228 (Pa. Super. 1994) (mortgage foreclosure action was an action

at law, and thus, laches was not a proper defense to action.).

      Contrary to Appellants’ contention, this is not a case of first impression.

In Leedom, this Court determined that laches was not a proper defense to a

mortgage foreclosure action, an action at law. Leedom, 647 A.2d at 228.

The two cases Appellants cite as authority for this Court to extend the

equitable defense of laches to actions at law, Stilp v. Hafer, 718 A.2d 290

(Pa. 1998) and White v. Township of Upper St. Clair, 968 A.2d 806 (Pa.

Cmwth. 2009), are cases involving equitable claims and are, therefore,

inapposite. See Stilp, 718 A.2d at 290 (complaint requesting injunctive and

declaratory relief); See White, 968 A.2d at 809 (complaint seeking

declaratory and injunctive relief).




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      Because the trial court did not err in granting summary judgment in

favor of Appellee, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/19




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