U.S. National Bank v. Ramos, M. ( 2020 )

J. A21001/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
U.S. NATIONAL BANK ASSOCIATION : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARIA RAMOS A/K/A :
MARIA D. RAMOS AND :
JUAN RUGLIANCICH A/K/A :
JUAN CARLOS RUGLIANCICH : No. 3037 EDA 2015
:
APPEAL OF: MARIA RAMOS :
Appeal from the Judgment Entered September 1, 2015,
in the Court of Common Pleas of Bucks County
Civil Division at No. 2014-03471
BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 24, 2020
Maria Ramos a/k/a Maria D. Ramos appeals from the September 1, 2015
judgment entered in favor of appellee, U.S. National Bank Association
(“U.S. Bank”), in this mortgage foreclosure action, following the trial court’s
order granting U.S. Bank’s motion for summary judgment. After careful
review, we affirm.1
The trial court summarized the relevant facts and procedural history of
this case as follows:
A complaint in mortgage foreclosure was filed in the
above captioned matter on May 16, 2014.
1 Juan Rugliancich a/k/a Juan Carlos Rugliancich, appellant’s husband, is not
a party to this appeal.
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Appellant’s counsel entered his appearance on her
behalf on August 1, 2014. A motion for substituted
service of the complaint was filed on August 25, 2014,
and on September 18, 2014, th[e trial c]ourt entered
an order granting substituted service by posting a
copy of the complaint at the subject property and
sending a copy to the subject property address by
certified and regular mail. Unfortunately, th[e trial
c]ourt was unaware of [appellant’s] counsel’s entry of
appearance when the motion was forwarded to it for
signature. The complaint was reinstated by praecipe
on September 30, 2014. An October 7, 2014,
certificate of service was filed stating that the
complaint was sent by certified and regular mail in
accordance with the order. On October 15, 2014, an
affidavit of service was filed asserting that the
complaint was posted at the property on October 10,
2014. On October 3, 2014, appellant filed a motion
for reconsideration of the court order of
September 18, 2014, and th[e trial c]ourt scheduled
a hearing on November 21, 2014. In the interim, on
October 30, 2014, appellant filed preliminary
objections to [U.S. Bank’s] complaint in the nature of
a motion to quash service. At the conclusion of the
November 21, 2014[] hearing an order was entered
denying the motion for reconsideration as well as
appellant’s preliminary objections.
Appellant filed an answer and new matter to
[U.S. Bank’s] complaint on December 19, 2014, and
[U.S. Bank] filed a reply to [appellant’s] new matter
on January 8, 2015. [U.S. Bank] filed a motion for
summary judgment on April 6, 2015, and appellant
filed a memorandum of law in opposition to
[U.S. Bank’s] motion for summary judgment on
May 4, 2015. A May 4, 2015[] certificate of service
was filed stating that [appellant’s] response to the
motion for summary judgment with [appellant’s]
cross-motion for summary judgment was served by
regular mail on [U.S. Bank’s] counsel. (The actual
cross-motion was never filed with the [trial] court.)
An affidavit of service was filed on May 21, 2015,
stating that a copy of the response to [appellant’s]
interrogatories and request for production of
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documents was sent by overnight mail and email to
appellant’s counsel on May 15, 2015. [U.S. Bank’s]
response to [appellant’s] motion for summary
judg[]ment was filed on June 3, 2015.
Trial court opinion, 2/2/16 at 1-2 (extraneous capitalization omitted).
On September 1, 2015, the trial court entered an order granting
U.S. Bank’s motion for summary judgment and entering judgment in its favor
in the amount of $126,782.93, plus interest from January 31, 2015 to the
date of the Sheriff’s Sale. (See trial court order, 9/1/15.) Appellant filed a
notice of appeal on September 30, 2015. On October 15, 2015, the trial court
directed appellant to file a concise statement of errors complained of on
appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. Appellant filed
her Rule 1925(b) statement on November 3, 2015, and the trial court filed its
Rule 1925(a) opinion on February 2, 2016. Appellant’s appeal was stayed
pending the resolution of bankruptcy proceedings, which concluded on
February 12, 2019.
Appellant raises the following issues for our review:
1. Whether the trial court erred in [sic]
procedurally in granting a motion for alternative
service as the presentation of the motion to the
[trial c]ourt occurred on [an] ex parte basis to
[appellant]?
2. Whether the trial court erred substantively in
granting a motion for alternative service posited
on the false proposition that [appellant’s]
whereabouts were unknown not that [appellant]
was willfully evading service?
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3. Whether the trial court erred in granting
summary judgment when written discovery
remained open and un-concluded in the case[?]
4. Whether the trial court erred in granting
summary judgment when the credibility of the
affiant [was] Rule of Civil Procedure
1035.3(a)(1)[?]
Appellant’s brief at 5.2
Appellant’s first two claims allege that the trial court erred as a matter
of law in granting U.S. Bank’s motion for substituted service of the complaint.
In support of this contention, appellant argues that “the presentation of the
motion [for substituted service] to the [trial] court occurred on [an] ex parte
basis.” (Id. at 10.) Appellant further avers that U.S. Bank’s motion was
improperly predicated on the false proposition that appellant’s whereabouts
were unknown. (Id. at 10-13.) For the following reasons, we disagree.
Pennsylvania Rule of Civil Procedure 430 governs alternative methods
of service and provides, in relevant part, as follows:
(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.Civ.P. 430(a).
2For the ease of our discussion, we elect to address some of appellant’s claims
concurrently.
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The explanatory note to Rule 430 further provides that
[a]n illustration of a good faith effort to locate the
defendant includes (1) inquiries of postal authorities
including inquiries pursuant to the Freedom of
Information Act [. . .], (2) inquiries of relatives,
neighbors, friends, and employers of the defendant,
and (3) examinations of local telephone directories,
voter registration records, local tax records, and
motor vehicle records.
Sisson v. Stanley, 109 A.3d 265, 269-270 (Pa.Super. 2015), citing
Pa.R.Civ.P. 430(a), note, appeal dismissed as having been improvidently
granted, 141 A.3d 1238 (Pa. 2016).
“The adequacy of this notice, as applied to substituted service, depends
upon whether it is reasonably calculated to give the party actual notice of the
pending litigation and an opportunity to be heard. Due process, reduced to
its most elemental component, requires notice.” Bank of New York Mellon
v. Johnson, 121 A.3d 1056, 1061 (Pa.Super. 2015) (citations omitted).
Instantly, U.S. Bank filed a motion for substituted service of the
complaint on August 25, 2014. Contrary to appellant’s contention,
U.S. Bank’s motion for alternative service was not presented ex parte. The
record reflects that on July 23, 2014, U.S. Bank’s counsel contacted
appellant’s counsel via email to inquire whether he would accept service of
the complaint on appellant’s behalf and notified counsel that U.S. Bank was
considering filing a motion for substituted service. Appellant’s counsel
responded to that email stating that he was not authorized to accept service
and confirmed that appellant resided at the mortgaged premises. (See
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“Motion for Substituted Service Under [Rule] 430(a),” 8/25/14 at Exhibit A.)
A certificate of service indicates that said motion was served on appellant’s
counsel on August 22, 2014, by first-class mail.
The record further belies appellant’s contention that U.S. Bank did not
engage in a good faith effort to ascertain her whereabouts and effectuate
proper service. (See appellant’s brief at 11-12.) U.S. Bank noted in its
motion that the Bucks County Sheriff unsuccessfully attempted to serve
appellant at the mortgaged premises no less than four times between May 19
and June 16, 2014. (“Motion for Substituted Service Under [Rule] 430(a),”
8/25/14 at ¶ 4, Exhibit A.) The motion further indicates that the Sheriff left
notice for appellant at the mortgaged premises to contact him to arrange
service, but appellant failed to respond. (Id.) U.S. Bank also stated that it
conducted a good-faith investigation to locate appellant, including a search of
military service records, death records, employment history, and business
records; a Department of Motor Vehicle records search; a creditor header
inquiry; and an inquiry of relatives, neighbors, and friends. (Id. at ¶ 5,
Exhibit A.) U.S. Bank also sent a Freedom of Information Act request to the
United States Postal Inspector, the results of which indicated that appellant’s
mail was being delivered to the mortgaged premises – 2598 Daniels Lane,
Emerald Hollow, Quakertown, Pennsylvania 18951. (Id. at ¶ 4, Exhibit A.)
Consequently, U.S. Bank requested that the trial court enter an order
pursuant to Rule 430(a), directing service of the complaint and all future
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pleadings by first-class mail and posting of the mortgaged premises. (Id. at
¶ 6.) The trial court granted U.S. Bank’s motion for substituted service on
September 18, 2014. Specifically, the trial court permitted U.S. Bank to serve
the complaint and all future pleadings by posting a copy of the complaint at
the mortgaged property and sending a copy to the mortgaged premises by
certified and regular mail. (Trial court order, 9/18/14.)3 Based on the
foregoing, we conclude that the trial court did not err as matter of law in
granting U.S. Bank’s motion for substituted service.
Appellant’s final two claims allege that the trial court erred in granting
U.S. Bank’s motion for summary judgment. Our standard of review of a trial
court’s 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 [trial] 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. 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.
3 The record reflects that U.S. Bank fully complied with the trial court’s order
granting its motion for substituted service. Specifically, on September 26,
2014, U.S. Bank filed an affidavit of service indicating it had mailed a copy of
the complaint to appellant’s counsel, pursuant to Pa.R.Civ.P. 440. (See
certified record at No. 9.) Thereafter, on October 15, 2014, U.S. Bank filed a
second affidavit of service indicating that the Sheriff had personally served
the complaint by posting it at the mortgaged premises, as well as a certificate
of service indicating that it had mailed a copy of the complaint to the
mortgaged premises by certified and regular mail. (See certified record at
No. 12.)
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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, 1261-1262
(Pa.Super. 2013) (citations and internal quotation marks omitted); see also
Pa.R.Civ.P. 1035.2.
Appellant argues that the trial court erred in granting U.S. Bank’s motion
for summary judgment because “discovery has not been concluded.”
(Appellant’s brief at 13.) The record belies this contention.
In Pennsylvania, “parties must be given reasonable time to complete
discovery before a trial court entertains any motion for summary judgment[.]”
Reeves v. Middletown Athletic Assoc., 866 A.2d 1115, 1124 (Pa.Super.
2004) (citation omitted). Pennsylvania Rule of Civil Procedure 1035.2 governs
motions for summary judgment and provides, in relevant part, as follows:
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any party
may move for summary judgment in whole or in part
as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of
the cause of action or defense which
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could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery
relevant to the motion, including the
production of expert reports, an adverse
party who will bear the burden of proof at
trial has failed to produce evidence of
facts essential to the cause of action or
defense which in a jury trial would require
the issues to be submitted to a jury.
Pa.R.Civ.P. 1035.2 (emphasis added).
This court has unequivocally stated that the purpose of Rule 1035.2 “is
to eliminate cases prior to trial where a party cannot make out a claim or
defense after relevant discovery has been completed; the intent is not to
eliminate meritorious claims prematurely before relevant discovery has been
completed.” Burger v. Owens Illinois, 966 A.2d 611, 618 (Pa.Super. 2009)
(citation omitted). “The adverse party must be given adequate time to
develop the case and the motion [for summary judgment] will be premature
if filed before the adverse party has completed discovery relevant to the
motion.” Id.
However, “[t]he Pennsylvania Rules of Civil Procedure do not give
[parties] an unlimited amount of time to conduct discovery.” Fort Cherry
School Dist. v. Gedman, 894 A.2d 135, 140 (Pa.Super. 2006). “[T]he party
seeking discovery is under an obligation to seek discovery in a timely
fashion.” Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP,
28 A.3d 916, 928 (Pa.Super. 2011) (citation omitted; emphasis added).
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Here, the record supports the trial court’s determination that discovery
was not ongoing at the time it entered its order granting summary judgment
in favor of U.S. Bank. (Trial court opinion, 2/2/16 at 8-9.) The record reflects
that over eight months elapsed between the date appellant filed her answer
and new matter to U.S. Bank’s complaint (December 19, 2014) and the date
the trial court entered an order granting summary judgment in U.S. Bank’s
favor (September 1, 2015). The record further reflects that appellant waited
until April 16, 2015, after U.S. Bank filed its motion for summary judgment,
to serve U.S. Bank with discovery. Nonetheless, on May 15, 2015, U.S. Bank
timely responded to all of appellant’s interrogatories and requests for
documents. (See affidavit of service, 5/15/15.) Appellant, in turn, did not
file any motions or send any correspondence to U.S. Bank suggesting that the
discovery was deficient or that additional responses were needed.
Accordingly, appellant’s claim of trial court error must fail.
Appellant next argues that the trial court erred in granting U.S. Bank’s
motion for summary judgment because a genuine issue of material fact
existed with respect to “the credibility of U.S. Bank.” (Appellant’s brief at 14.)
In support of this contention, appellant relies on the long-standing prohibition
against relying solely upon oral testimony in deciding a motion for summary
judgment, as set forth in Nanty-Glo v. American Surety Co. of New York,
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163 A. 523 (Pa. 1932) and Pa.R.Civ.P. 1035.3(a)(1).4 (Appellant’s brief at
14.)
This court has summarized the Nanty-Glo rule as follows:
The Nanty-Glo rule prohibits summary judgment
where the moving party relies exclusively on oral
testimony, either through testimonial affidavits or
deposition testimony, to establish the absence of a
4 Pennsylvania Rule of Civil Procedure 1035.3(a)(1) provides as follows:
(a) Except as provided in subdivision (e), 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
Note: If the moving party
has supported the motion
with oral testimony only,
the response may raise the
defense that there is a
genuine issue of material
fact because the cause of
action is dependent upon
the credibility and
demeanor of the witnesses
who will testify at trial.
See Nanty-Glo[, supra];
Penn Center House, Inc.
v. Hoffman, [] 553 A.2d
900 ([Pa.] 1989).
Pa.R.Civ.P. 1035.3(a)(1) (citation formatting amended).
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genuine issue of material fact except where the
moving party supports the motion by using
admissions of the opposing party or the opposing
party’s own witness.
Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa.Super. 2006) (citation and
internal quotation marks omitted; emphasis added).
Here, the record reflects that Nanty-Glo did not prohibit entry of
summary judgment in this case because U.S. Bank provided evidence other
than oral testimony to prove a prima facie case in mortgage foreclosure.
This evidence included a copy of the mortgage and note, appellant’s
transaction history, a notice of its intent to foreclose, and an affidavit
confirming the amount due and unpaid. (See “[U.S. Bank’s] Motion for
Summary Judgment,” 4/6/15 at Exhibits B, E, G, H; “Affidavit in Support of
[U.S. Bank’s] Motion for Summary Judgment,” 1/13/15 at 3.) The record
further reflects that appellant has failed to provide any evidence in either her
December 14, 2019 “Answer and New Matter” or her May 4, 2015
“Memorandum of Law in Opposition to [U.S. Bank’s] Motion for Summary
Judgment” to refute U.S. Bank’s allegations. As recognized by the trial court,
“[a]ppellant in the Answer admitted to averments in the Complaint by general
denials to the claims . . . [and] does not specifically identify any factual
assertions that would require a credibility finding.” (Trial court opinion, 2/2/16
at 10; see also Pa.R.Civ.P. 1029(b) (stating, inter alia, “[a] general denial
or a demand for proof, except as provided by subdivisions (c) and (e) of this
rule, shall have the effect of an admission.”).) Accordingly, we discern no
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error of law on the part of the trial court in concluding that there were no
genuine issues of material fact in this case and granting U.S. Bank’s motion
for summary judgment. Therefore, we affirm the trial court’s September 1,
2015 judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/20
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