Wilmington Savings v. Swaydis, F. ( 2019 )

J-A06043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILMINGTON SAVINGS FUND : IN THE SUPERIOR COURT OF
SOCIETY FSB, D/B/A CHRISTIANA : PENNSYLVANIA
TRUST, NOT IN ITS INDIVIDUAL :
CAPACITY, BUT SOLELY AS TRUSTEE :
FOR BCAT 2015-14BTT :
:
:
v. :
: No. 1167 MDA 2018
:
FORREST M. SWAYDIS A/K/A :
FOREST M. SWAYDIS :
:
Appellant :
Appeal from the Judgment Entered June 7, 2018
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2016-03616
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 05, 2019
Forrest M. Swaydis a/k/a Forest M. Swaydis (Swaydis) appeals from the
judgment entered in the Court of Common Pleas of Lackawanna County (trial
court) in favor of Wilmington Savings Fund Society FSB, d/b/a Christiana
Trust, not in its individual capacity, but solely as trustee for BCAT 2015-14BTT
(Wilmington Savings). We affirm.
We take the following relevant facts and procedural history from the trial
court’s August 22, 2018 opinion and our independent review of the certified
record. On June 17, 2016, Wilmington Savings filed a complaint in mortgage
foreclosure against Swaydis alleging his October 2011 default of a mortgage
secured by a property located in Old Forge, Lackawanna County. The trial
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06043-19
court entered an order overruling Swaydis’ preliminary objections to the
complaint in March 2017. Swaydis filed an answer and new matter and
Wilmington Savings filed a response thereto.
In February 2018, Wilmington Savings filed a motion for summary
judgment attaching supporting documentation, including the relevant loan
documents, assignment of the mortgage to it and an affidavit from a
Wilmington Savings loan servicing agent averring that the amount due and
owing on the loan is $102,526.41. Swaydis did not file a response nor did he
appear at the oral argument on the motion. The trial court entered summary
judgment in favor of Wilmington Savings in the amount of $102,526.41. In
its 1925(b) Opinion,1 the trial court stated:
It is clear that Appellant has completely failed at every step of the
proceedings to coherently and succinctly identify any facts or
defenses in support of his opposition to this action. He has merely
raised bald assertions in his responses to the complaint, as well
as in his new matter. He failed to respond to request for
admissions, resulting in those requests being deemed admitted.
He failed to respond, brief, or appear for oral argument on the
Motion for Summary Judgment. And lastly, he failed by asserting
boilerplate allegations of error in his matters complained of on
appeal.
Meanwhile, Appellee has produced competent, straightforward
evidence establishing: a) mortgage was obtained by Appellant,
b) Appellant defaulted on the mortgage, and c) the mortgage was
properly recorded specifying the proper amounts due and owing.
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1 See Pa.R.A.P. 1925.
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Trial Court Opinion pp. 6-7. This appeal followed.2
In his appeal, Swaydis contends that the trial court’s entry of summary
judgment3 in favor of Wilmington Savings was improper because his answer
and new matter made clear that there are genuine issues of material fact
regarding the propriety of the foreclosure. (See Swaydis’ Brief, at 12-22).
Pennsylvania Rule of Civil Procedure 1035.3 governs responses to
motions for summary judgment and provides, in pertinent part:
(a) . . . 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.
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2The trial court entered summary judgment on May 29, 2018, and, for reasons
not readily apparent from the record, judgment was again entered on the
docket on June 7, 2018. Notice of the judgment pursuant to Pennsylvania
Rule of Civil Procedure 236 was sent to the parties on that same June date.
See Pa.R.C.P. 236. Swaydis’ notice of appeal, filed on July 9, 2018, was,
therefore, timely. See EMC Mort., LLC v. Biddle, 114 A.3d 1057, 1059 n.1
(Pa. Super. 2015) (notice of appeal was timely when filed within thirty days
after Rule 236 notice of judgment was sent by prothonotary); see also 1
Pa.C.S. § 1908 (when last day of appeal period falls on weekend or legal
holiday, that day is omitted from computation of time).
3 An appellate court may reverse the entry of a summary judgment only where
it is established that the court committed an error of law or abused its
discretion. See State Farm Mut. Auto. Ins. Co. v. Dooner, 189 A.3d 479,
481 (Pa. Super. 2018).
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* * *
(d) Summary judgment may be entered against a party who
does not respond.
Pa.R.C.P. 1035.3.(a)(1)-(2), (d) (emphases added).
Further, “a non-moving party’s failure to raise grounds for relief in the
trial court as a basis upon which to deny summary judgment waives those
grounds on appeal.” Harber Philadelphia Ctr. City Office Ltd. v. LPCI Ltd.
P'ship, 764 A.2d 1100, 1105 (Pa. Super. 2000), appeal denied, 782 A.2d 546
(Pa. 2001) (citation omitted). This makes the defenses to summary judgment
advanced by the non-moving party in the trial court of critical importance.
See id. “This proposition is consistent with our Supreme Court’s efforts to
promote finality, and effectuates the clear mandate of our appellate rules
requiring presentation of all grounds for relief to the trial court as a predicate
for appellate review. See Pa.R.A.P. 302(a) (‘Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.’).” Id.
In this case, Swaydis did not file any response to Wilmington Savings’
motion for summary judgment in the trial court, nor did he appear at oral
argument on the motion. Because Swaydis failed to respond in any way, the
trial court did not err in entering summary judgment. See Pa.R.C.P.
1035.3.(d). Moreover, his failure to raise any grounds for relief in the trial
court as a basis upon which to deny summary judgment waives those grounds
on appeal. See Harber Philadelphia Ctr. City Office Ltd., supra at 1105.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/05/2019
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