HomeMy WebLinkAbout2011-2585
EVERHOME MORTGAGE CO. : IN THE COURT OF COMMON PLEAS OF
APPELLEE : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. : NO: 11-2585 CIVIL
:
:
:
HOWARD A. HAY, JR., et. al. :
APPELLANTS : CIVIL ACTION
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(a)
Ebert Jr., J.,
August 22, 2012 -
FINDINGS OF FACT
On August 17, 2006, the Appellee commenced a mortgage foreclosure action by
filing a complaint against the Appellants in Cumberland County. This complaint is
docketed at 06-4729 Civil Term. The Appellee sought a judgment in the amount of
$187,528.29. On October 5, 2006, the Appellee obtained an in rem judgment by
1
default against Appellants. On October 31, 2007, the Appellants filed a Petition to
Strike Default Judgment or in the alternative, a Petition to Open Judgment. The
Appellants’ petition was assigned to The Honorable J. Wesley Oler, Jr. Prior to a
decision, Judge Oler issued a rule to show cause on the Appellee to show why the
Appellants’ petitions should not be granted. Additionally, the court gave Appellants an
opportunity to take depositions and create an evidentiary record. Appellants made no
record. On September 9, 2008, Judge Oler denied the Petition to Strike and the Petition
to Open Judgment.
1
judgment by default is res judicata and is conclusive in its application to a defaulting
A
defendant. Zimmer v. Zimmer, 457 Pa. 488, 326 A.2d 318, 320 (1974). As reiterated by our
Supreme Court: “Once all direct appeals are exhausted from the entry of such a judgment, we
long ago concluded that a judgment by default is res judicata and quite as conclusive as one
rendered on a verdict after litigation insofar as a defaulting defendant is concerned.”
Fox v. Gabler, 626 A.2d 1141, 1143 (Pa. 1993) see also Signora v. Liberty Travel, Inc., 886 A.2d
284, 290 (Pa. Super. 2005).
On October 7, 2008, Appellants filed a Notice of Appeal. In the lower court’s
1925 Opinion, the court stated “Appellants baldly asserted in their petition to open or
strike that, although they were present at the time the paperwork was signed, they did
not execute the mortgage. … However, a copy of the mortgage attached to Plaintiff’s
answer to the petition contained what purported to be their signatures, and the
mortgage as recorded included a notary’s certification that Appellants had personally
appeared before her and acknowledged their signatures on the document. … As noted
in the text, Appellants made no evidentiary record pursuant to the rule issued by this
2
court to support their contention that they had not executed the mortgage.”
Additionally, the lower court found that “the record at the time the judgment was entered
3
did not show … that the mortgage in question was a forgery as to appellants …”
On September 28, 2009, the Superior Court affirmed Judge Oler’s determination.
No further appeals were taken.
On March 2, 2011, the Appellee filed a Complaint to Quiet Title. Count 1 of the
complaint requested this court to enter an “order determining that the copy of the
Executed Mortgage is valid and authentic, [and] [order] the Office of the Recorder of
Deeds of Cumberland County to accept and record the copy of the Executed Mortgage
4
in place of the Recorded Mortgage, …” The basis for the complaint was that the
mortgage that was filed in the Recorder of Deeds office did not contain a signature
page; the page containing the Appellants’ signatures. On April 29, 2011, the Appellants
2
Everhome Mortgage Company v. Howard A. Hay, Jr., Howard A. Hay, Sr., Kimberly Hay No. 06-4729
Civil Term, In Re: Opinion Pursuant to PA.R.A.P. 1925, Oler, J., January 8, 2009, (hereinafter “1925
Opinion”) page 3 footnote 9
3
1925 Opinion, page 9
4
Plaintiff’s Complaint to Quiet Title, filed March 2, 2011
2
filed an Answer and New Matter, averring that the Appellants Howard Hay, Sr. and
Kimberly Hay never signed the mortgage. They further aver that their signatures are
5
forgeries.
6
On June 22, 2011, the Appellee filed its Reply to New Matter. On September
22, 2001, the Appellee filed a Motion to Compel Production of Documents, and it was
granted. The Appellee sought production of all documents supporting the Appellants’
7
allegation that the signature page of the executed mortgage is a forgery.
Following the Court’s granting of the Motion to Compel, the Appellants filed
objections based on the belief that “they are overly broad, duplicative, unreasonably
cumulative, vague, ambiguous, harassing, not properly limited in time and/or scope, and
to the extent they impose an unjust burden upon Defendants in that responding to such
8
request would require an excessive expenditure of time and money”. With specific
response to Appellee’s requests for production at ¶¶4, 5 and 11 (requesting
documentation that their signatures were forged), the Appellants aver that
9
documentation was destroyed in two house fires; that they are in the process of
10
obtaining a forensic signature expert; and that a witness was present with Appellant
5
Defendants’ Answer with New Matter, filed April 29, 2011.
6
In Answer to New Matter, the Appellants averred that Appellees’ claims were barred by res judicata,
pursuant to Pa.R.C.P. 1030 and 1032.
7
Plaintiff’s First Request for Production of Documents Directed to Defendants Howard A. Hay, Sr. and
Kimberly Hay, page 4, ¶4, ¶5 ¶11.
8
Defendant’s [sic] Objections and Production of Documents to Plaintiff’s First Request to Production of
Documents, file December 6, 2011
9
Appellate record pages 119, 121
10
Appellate record page 120
3
11
Kimberly Hay when she was told the signature page was missing. The only
12
documents produced were credit reports for both Howard Hay, Sr. and Kimberly Hay.
Following a hearing on Plaintiff’s Motion for Sanctions, The Honorable Edward E. Guido
ordered Appellants to provide affidavits from Lynn Szymoniac and/or Stephen Conklin
13
within thirty days.
On May 10, 2012, Appellants filed an affidavit for Stephen Conklin. On June 2,
2012, following an extension, the Appellants filed a document titled Discovery Pursuant
to Court Order. Attached to this document was Stephen Conklin’s Affidavit and a letter
from Frank Garo, a “forensic handwriting examiner”.
On March 8, 2012, the Appellee filed its Motion for Partial Summary Judgment
requesting the following: a) the Court find that the copy of the Executed Mortgage is
valid and authentic; and b) the Court direct the Office of the Recorder of Deeds of
Cumberland County to accept and record the copy of the Executed Mortgage in place of
14
the Recorded Mortgage. On June 4, 2012, following briefs and oral argument, the
court found for the Appellee, granting partial summary judgment.
On June 20, 2012, the Appellants filed a timely Notice of Appeal. On July 13,
2012, the Appellants filed a Concise Matter Complained of on Appeal averring the
following:
11
Appellate record, page 121
12
Appellate record, page 267
13
Everhome Mortgage Company v. Howard Hay, Jr., et al., 11-2585 Civil Term, Transcript of
Proceedings, In Re: Motions for Sanctions, Guido, J., page 17.
14
Plaintiff’s Motion for Partial Summary Judgment, filed March 8, 2012.
4
1. Whether the court abused its discretion when it ignored indubitable
evidence of fraud/forgery, as supported by expert affidavit submitted by
defendant.
2. Whether the court abused its discretion when it accepted plaintiff’s
unauthenticated evidence.
3. Whether the evidence submitted by plaintiff that this Court relied on is
not lawfully acknowledged.
4. Whether plaintiff was ever entitled to bring an action against
defendants where plaintiff never had the original promissory or mortgage
note.
5. Whether the Court by having a hearing on June 1, 2012 ignored
substantial additional evidence timely submitted by defendants on June 1,
2012 as previously directed by the court.
6. Whether the Court violated judicial canons and/or otherwise acted
with extreme bias and prejudice against defendants.
7. Whether the Court abused its discretion in granting summary
judgment where genuine issues of material fact in dispute exist.
8. Whether evidence of forgery as supported by expert affidavit was
sufficient to require presentment to a jury.
9. Whether the lower court is covering up fraud.
10. Whether the Court acted with extreme bias and prejudice, violating
defendants [sic] Constitutional rights by attempting to deny, pursuant to
court order, defendants [sic] rights to due process, equal protection and
access to the courts in redress of grievances.
DISCUSSION
All of Appellants’ claims are barred by the doctrine of res judicata.
Pursuant to Pa. C.S.A. 1035.2, after the relevant pleadings are closed, a
party may move for summary judgment in two instances:
(1) 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, 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
5
of action or defense which in a jury trial would require the issues to be
submitted to a jury.
Pa. R.C.P. 1035.2.
The Court may grant summary judgment only when the right to such
judgment is clear and free from doubt. Sebast v. Kakouras, 915 A.2d 1147,
1153 (Pa. 2007). A Court shall enter judgment whenever there is no genuine
issue of any material fact as to a necessary element of cause of action that
could be established by additional discovery. Swords v. Harleysville Ins. Co.,
883 A.2d 562, 566 (Pa. 2005). Summary judgment is proper where the
pleadings, depositions, answers to interrogatories, admissions and affidavits on
file demonstrate that there exists no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1),
Weiner v. American Honda Motor Co., 718 A.2d 305 (Pa. Super. 1998). The
adverse party may not rest upon the mere allegations or denials in their
pleadings. Pa.R.C.P. 1035.3(a). In deciding whether summary judgment is
proper, the Court must construe the facts on the record in a light that is most
favorable to the non-moving party. The Court must also resolve all doubts and
reasonable inferences as to the existence of a genuine issue of material fact in
favor of the non-moving party. Telega v. Security Bureau, Inc., 719 A.2d 372
(Pa. Super. 1998). Summary judgment is meant to eliminate the waste of time
and resources of both litigants and the courts in cases where a trial would
simply be a useless formality. Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super.
1989).
6
It is proper to enter summary judgment where an action is barred by res judicata
or collateral estoppel. Hopewell Estates, Inc. v. Kent, 646 A.2d 1192, 1194 (Pa. Super.
1994) citing Grant v. GAF Corp., 608 A.2d 1047, 1053-1054 (Pa. Super. 1992), aff'd,
536 Pa. 429, 639 A.2d 1170 (1994).
In order for technical res judicata to apply, there must be: “(1) identity of the thing
sued upon or for; (2) identity of the cause of action; (3) identity of the persons and
parties to the action; and (4) identity of the quality or capacity of the parties suing or
sued.” Henion v. Workers' Compensation Appeal Board (Firpo & Sons, Inc.) 776 A.2d
362, 366 (Pa. Cmwlth. 2001). Technical res judicata may be applied to bar “claims that
were actually litigated as well as those matters that should have been litigated.” Id.
(emphasis added). “Generally, causes of action are identical when the subject matter
and the ultimate issues are the same in both the old and the new proceedings.” Weney
v. W.C.A.B. (Mac Sprinkler Sys., Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008) quoting
Henion at 366.
In determining whether res judicata should apply, a court may consider whether
the factual allegations of both actions are the same, whether the same evidence is
necessary to prove each action and whether both actions seek compensation for the
same damages. Hopewell Estates, Inc. 646 A.2d at 1194-95 citing Mintz v. Carlton
House Partners, Ltd., 595 A.2d 1240, 1246 (Pa. Super. 1991). “’The thing which the
court [should] consider is whether the ultimate and controlling issues have been decided
in a prior proceeding in which the present parties actually had an opportunity to appear
and assert their rights.’” Id. Stevenson v. Silverman, 208 A.2d 786, 788 (Pa. 1965),
7
cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965) (emphasis omitted),
quoting Hochman v. Mortgage Fin. Corp., 137 A. 252, 253 (Pa. 1927).
In the present case, the Appellee filed a complaint requesting that this
court order the Recorder of Deeds office to accept the filing of the Executed
Mortgage in place of the Recorded Mortgage to cure a defect in the Recorded
Mortgage. The defect was that the signature page was missing from the
Recorded Mortgage. The Appellants answered, averring that they never signed
the Executed Mortgage (or the Recorded Mortgage) and that the signature
page is forged.
At docket 06-4729, in Appellants’ Petition to Strike the Judgment and/or
Open the Judgment, they averred the same defense; that they should not be
liable for the mortgage because they never signed for it; that any signature
purporting to be theirs was forged. At docket 06-4729, the Appellee filed a
complaint seeking damages from the Appellants for failing to pay the mortgage.
The Appellants failed to answer Appellee’s complaint in mortgage foreclosure.
A default in rem judgment was entered along with assessment of damages.
Over one year passed before Appellants filed a petition to strike or a petition to
open the record. The lower court issued a rule to show cause on the Appellee
and subsequently gave the Appellants 49 days to create an evidentiary record
in support of their allegation that they did not execute the mortgage in question.
The Appellants never conducted discovery and never created an evidentiary
record in support their defense.
8
The lower court found that “the record at the time the judgment was
entered did not show … that the mortgage in question was a forgery as to
15
Appellants …” Furthermore, the Court found that the “Appellants did not take
advantage of the procedure set forth in the rule issued by the court to make a
record by deposition in support of their contentions as to a meritorious
16
defense.”
The Superior Court affirmed the lower court’s decision and no further appeal was
taken.
In the present case, the Appellants have asserted the defense of forgery/fraud;
the exact defense that was asserted at 06-4729; the exact defense that was rejected by
the lower court and affirmed by the Superior Court. Therefore, Appellants’ defense to
the Appellee’s complaint to Quiet Title and to the court’s granting of the summary
1718
judgment motion is barred by res judicata.
By the Court,
M. L. Ebert, Jr., J.
15
1925 Opinion, page 9.
16
1925 Opinion, page 10.
17
It should be noted that the Appellants failed to file an Answer to the Appellee’s Motion for Summary
Judgment at Count 1.
18
The Appellee asserts an alternate defense of collateral estoppel. However, collateral estoppel is not
applicable because the defense of forgery has not been actually litigated, given the default judgment and
the court’s denial of Appellants’ petition to strike/petition to open judgment because they never created an
evidentiary record upon which the court could find the mortgage was or was not forged. Collateral
estoppel acts to foreclose litigation in a subsequent action where issues of law or fact were actually
litigated and necessary to a previous final judgment. J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936,
939 (Pa. Cmwlth. 2002). Res judicata will bar subsequent claims that could have been litigated in the
prior action, but which actually were not. Matternas v. Stehman, 642 A.2d 1120, 1125 (Pa. Super. 1994).
9
Marian A. Kornilowicz, Esquire
Steven M. Williams, Esquire
Attorneys for Plaintiff
th
240 North Third Street, 7 Floor
Harrisburg, PA 17101
Howard A. Hay, Jr., Defendant
907 Chester Road
Apt. D
Enola, PA 17025
Howard A. Hay, Sr.
Kimberly Hay, Defendants
11 Gettysburg Pike
Mechanicsburg, PA 17055
10