J-A33002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EMC MORTGAGE, LLC                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALESSANDRO AND CONCETTA
SPENNATO

                            Appellants               No. 3286 EDA 2013


                Appeal from the Order Entered October 28, 2013
                In the Court of Common Pleas of Chester County
                        Civil Division at No(s): 12-12365


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 16, 2015

        Alessandro and Concetta Spennato (“the Spennatos”) appeal from the

order entered in the Court of Common Pleas of Chester County, granting

EMC Mortgage’s motion for summary judgment. Upon review, we affirm.

        This matter stems from a mortgage foreclosure resulting from the

Spennatos failure to make the required monthly payments of principal and

interest beginning June 1, 2008 and every month thereafter. On May 24,

2013, EMC Mortgage filed a motion for summary judgment, which the court

granted on October 25, 2013. This timely appeal followed.

        On appeal, the Spennatos present the following issues for our review:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      1. Did the trial court commit an error of law when it refused the
         Spennatos’ underlying request for discovery?

      2. Did the trial court commit an error of law in its grant of
         summary judgment upon an inadmissible hearsay testimonial
         affidavit predicated upon an indecipherable hearsay “loan
         history?”

Brief of Appellants, at 8.

      Our standard of review of an order granting summary judgment is

well-settled:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will view the record in the light most
      favorable to the non-moving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (case citation omitted).

      In an action for mortgage foreclosure, the entry of summary
      judgment is proper if the mortgagors admit that the mortgage is
      in default, that they have failed to pay interest on the obligation,
      and that the recorded mortgage is in the specified amount. This
      is so even if the mortgagors have not admitted the total amount
      of the indebtedness in their pleadings.


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Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998)

(citations omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Edward

Griffith, we conclude the Spennatos’ issues merit no relief. Specifically, we

agree with Judge Griffith’s finding that the trial court did not err when it

denied the Spennatos request to depose EMC Mortgage’s affiant because the

Nanty-Glo1 rule does not apply where the moving party supports the

motion with admissions from the opposing party or the opposing party’s own

testimony.     See Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006).

We also note that the Spennatos fail to appropriately develop argument

regarding their second issue on appeal. See Pa.R.A.P. 2119(b). Finally, we

agree with the trial court’s finding that summary judgment is proper where,

in an action for in rem foreclosure due to the defendant’s failure to pay a

debt, the defendant admits that he failed to make payments and fails to

state a cognizable defense to the plaintiff’s claim.       See Gateway Towers

Condominium Ass’n v. Krohn, 845 A.2d 855 (Pa. Super. 2004).

       Accordingly, we affirm based on the trial court’s opinion, which

comprehensively       discusses     and    properly   disposes   of   the   questions
____________________________________________


1
 Borough of Nanty-Glo v. American Surety Co. of New York, 163 A.
523 (Pa. 1932). The Nanty-Glo rule applies to cases where the party
moving for summary judgment relies on the oral testimony of its own
witnesses, regardless of whether such testimony remains unchallenged.



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presented.    See Trial Court Opinion, 1/23/14, at 2-3.     We instruct the

parties to attach a copy of that decision in the event of further proceedings

in the matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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