text:
    Commonwealth v. Wilcox

      Melissa Kalaus, for Commonwealth.

      Michael Rudinski, for defendant.
    March 27, 2014
   LOVECCHIO, J.,

Defendant is charged with numerous offenses relating to his alleged sexual assault of a six year old female. The information filed on July 12, 2012 charges him with Statutory Sexual Assault, Aggravated Indecent Assault, Involuntary Deviate Sexual Intercourse with a Child, Indecent Assault, Corruption of Minors, Rape of a Child, Indecent Exposure and Unlawful Contact with a Minor.

On October 15, 2013, the Commonwealth filed a motion to admit hearsay statements of the alleged victim. On August 22,2013, the Commonwealth filed an amended motion to admit hearsay statements of the minor victim.

Hearings on the Commonwealth’s motion were held before the court on November 12, 2013 and March 20, 2014.

The Commonwealth seeks to admit hearsay statements that the minor child victim made to four separate individuals. These individuals include Melissa Dangle, Sherry Moroz, Lou Ann Ziegler and Kyle Mowrey.

Melissa Dangle testified at the November 12, 2013 hearing. She has been employed by Lycoming County Children and Youth for approximately 10 years.

A call was made to the agency in late February of 2012 regarding suspected abuse. Ms. Dangle traveled to the minor victim’s school and met with the minor victim on February 27, 2012. This meeting was very brief. It lasted for approximately one-half hour. The child was emotional and spoke very little about what allegedly occurred.

They met again the next day at the agency’s office. The minor victim was initially hesitant to talk about any alleged incident. As the meeting progressed, however, the child opened up. She talked about a “secret” that she was not allowed to talk about. She noted that her mother would be very mad. She disclosed that the secret was about “Chad.” She went on to describe two separate incidents in which she did not have any clothes on and “Chad” only had his shirt on. In response to a question about whether the secret involved body parts, she pointed to her mouth.

Ms. Dangle explained that the purpose of the meeting was to determine if the child was safe in her present environment. Based upon what the child told her, she decided that the environment was not safe.

In discussing the interview, she noted that the child’s statement was consistent in several particulars, that she could not “see” any motive to fabricate, that the child was not asked leading questions, that the answers the child supplied were voluntary and that no promises or inducements were made to the child in exchange for answers. She further had no concern about the child “not being truthful.”

Sherry Moroz also testified at the November 12, 2013 hearing. She is employed as a forensic interviewer with the Child Advocacy Center in Lewisburg. She met with the child on March 15, 2012 and conducted a forensic interview in which the child made numerous incriminating statements against defendant and described alleged sexual abuse. The child indicated that she thought it only happened two times and she was six years old when it happened.

One time the child was sleeping in her bed, and Chad came in and woke her up. It was nighttime and her mother was sleeping. He told her a “top secret.” He told her to take off her clothes and he took off his pants, then they did the “secret.” She was in the middle of the bed and he was doing the “secret” with her. The mouth, lady parts and man parts were involved. Chad touched hers and she touched his. His mouth touched her lady parts, and it didn’t feel comfortable. She was lying down and Chad was sitting in the middle of the bed. She counted to 60 in her head. She also said she had to put hers on his. It felt kind of weird. Chad was lying down and she was in the middle of the bed. He told her it was “top secret.” He also told her “how to do it.” Chad told her he was finished and he said, “Now go back to bed.” She also indicated that the man part got bigger, but nothing came out of it.

The second time, Chad told her to come into his room, the master bedroom. This room had a blue floor and a giant bed. Her mom was sleeping downstairs on the couch. They did the same thing as the last time. She had her clothes off; Chad had his pants off. He only had a tank top on. He didn’t even have his underwear on. Chad’s mouth touched her lady parts. It was only on top of her lady parts, and it felt weird. There was never anybody else that touched her like that.

The interview was videotaped and also simultaneously observed by Ms. Dangle and the affiant, Sergeant Taylor of the South Williamsport Police Department. The interview was also observed by other members of the Advocacy Center’s multi-disciplinary team. Following a portion of the interview, Ms. Moroz left the interview room and discussed with the “team” what issues, if any, needed to be further clarified or discussed.

Ms. Moroz indicated that the purpose of the interview was to determine if something happened to the child and if so, what specifically happened. She conceded that the purpose was to establish or prove past events potentially relevant to later proceedings.

While it was important to know what happened in connection with further treatment and safety planning, the purpose of the interview was not to address an immediate situation. It was “more like a step taken in an investigation after the action is over for purposes of aiding the investigation and potential prosecution.” The purpose of the video was to make sure that the child’s statement would be available at any “later proceedings.”

Lou Ann Ziegler also testified at the November 12, 2013 hearing. She was employed during the relevant time as an elementary school guidance counselor and gifted support teacher.

In late February of 2012, she was approached by a teacher and asked to speak with the child to “find out what was going on.” The child was brought to her office during lunch, and Ms. Ziegler and the child talked.

The child indicated that she had a “top secret,” that her mommy did not know about it and that her mommy would be mad. She indicated that it took place in her mother’s and “Chad’s room while her mother was sleeping downstairs on the couch.”

When asked if it involved touching, she indicated yes. When asked if it involved inappropriate touching, she also said yes. When she was asked if it involved anything other than hands, she pointed to her mouth.

Ms. Ziegler indicated that with respect to the child, she appeared relaxed and used “typical terminology.” She noted that she and the child had a rapport. The child was never in her office for any punitive issues and at the time did not think that she was in any trouble at all. The child appeared to be certain in her statements and, as best as possible, Ms. Ziegler tried to avoid leading questions. The discussion lasted about three to five minutes.

Kyle Mowrey also testified at the November 12, 2013 hearing. He is a teacher at the Central Elementary School in South Williamsport. On February 24,2012 at the end of the day the child, one of his students, approached him and said she had a “secret” with her “stepfather.” She could not tell him the secret.

The following Monday she approached him again about the “secret.” She indicated she was not allowed to tell teachers, her mom or her friends. She did not say anything about the specifics of the secret. Mr. Mowrey decided to contact Ms. Ziegler to have the child speak with her.

Josh Smeal, the child’s father also testified at the November 12, 2013 hearing. He indicated that the child recently turned eight on July 24. In February of 2012, she lived with her mother and defendant, her stepfather.

Since the incident and in connection with either recalling the incident or testifying about it, he has seen changes in the child’s behavior and demeanor. Generally, she is very outgoing and talkative, but that is not the case when it comes to talking about defendant, the incident or court hearings.

The child had recently gone to a conference in the district attorney’s office. The child was very active in discussions until the conversation turned to the alleged incidents. At that time, the child totally “clammed up.” When the discussion turned to defendant and a potential trial, the child’s “entire demeanor shifted.” She “totally closed down.” She refused and/or failed to respond to questions. She did a lot of shrugging and would not talk. When the conversation turned to other things, she “again spoke freely.”

Mr. Smeal has serious doubts that the child would be able to communicate in court. While she is very intelligent and has opened up before, such as to a physician, an attorney and even at the preliminary hearing, he does not believe she would be able to testify now.

The child was in counseling although not any longer because of the “home-living situation.” Mr. Smeal was instructed by the child’s counselors not to talk to the child about the incident.

Julie Welliver, who was employed by Wise Options, also testified at the November 12, 2013 hearing. Sergeant Taylor contacted her “as soon as it happened.” The child’s mother brought the child into Ms. Welliver to “prepare her for court.”

Ms. Welliver met with the child approximately five times before the preliminary hearing. During that time, she tried to prepare the child for the preliminary hearing and did a program called “Healthy Touch,” which is a five-week process. In the first two sessions, the child would talk about normal things, but would get nervous and start to freeze up when they would talk about the incident. In the third or fourth session, the child gave some limited information. Ms. Welliver and Sergeant Taylor also took the child to the District Justice’s office about a week before the preliminary hearing to do a “dry run.”

The child typically would give yes or no answers. Initially, she would say I don’t know. The child would identify body parts. They would go over books about appropriate and inappropriate touch. Ms. Welliver asked the child if anything like that happened to her. The child said yes, and she eventually said that she had to touch defendant’s private part with her hand.

Ms. Welliver did not see the child again until the child’s father brought her for three sessions between January and the end of February 2013. Ms. Welliver indicated that as of February 2013, the child got a terrified “deer in the headlights” look when Ms. Welliver tried to discuss the incident with her. Ms. Welliver opined that the child would not be able to communicate in court and that she “absolutely” thinks it would cause severe emotional distress to the child if she were put in the situation that she was required to testify in court.

The purpose of the meetings was to see how the child was doing “with her feelings, to see if she could still communicate what happened and in order to determine if other incidents happened.”

While the child could not communicate about the incident when Ms. Welliver last saw her, she was of the opinion that a referral to a therapist or clinical psychologist would be appropriate. In detailing what emotional distress the child may suffer if required to testify, Ms. Welliver indicated that she would clam up, her face would redden, her eyes would become real big, and she would refuse to talk and/or say she did not remember what happened to her. She elaborated that it could very well cause additional stress and behavioral problems. She indicated that it is in fact a “trigger for a lot of kids.” In explaining what the child’s motivation may be, Ms. Welliver noted that, once the child disclosed the incidents, her life became very disrupted. By the child “opening her mouth,” her life was turned upside down. She opined that the child may very well feel that if she keeps her mouth shut, her life may get back in order and she may be able to re-establish a relationship with her mother.

The court also interviewed the child in chambers. The child appeared bright and engaging and would willingly talk about different issues. The child indicated that she knew who Chad was and in fact liked him. She refused to say anything negative about Chad and refused to discuss anything about any alleged improper touching. Consistent with Ms. Welliver’s testimony, the child shrugged, changed the topic or simply avoided the question by becoming distracted with something else. In light of the conversation with the child and the court’s observations, the court had serious doubts that the child would even be competent to testify.

Sergeant James Taylor of the South Williamsport Police Department testified on March 20, 2014. He was present on March 5, 2013 when the child was interviewed by Ms. Moroz. He indicated that his purpose was as an “observer” in order to determine what took place. He does not recall what was discussed if anything during the interview between he and the others, including but not limited to, Ms. Moroz. He conceded that he was obviously there as a criminal investigator but that no one knew for sure what had happened.

He was also present at the defendant’s preliminary hearing on June 25, 2012. Prior to the hearing, the child met with him and the assistant district attorney for the purpose of preparing for testimony. Her father was also present.

She was very nervous and “unable to speak.” Her nervousness was “beyond regular nerves.” On the stand, he indicated that while she said enough to meet the prima facie standard, it was very difficult for her to testify. He described her as being quiet, “stunted,” not able to elaborate, and answering many questions through “nods and shakes” of her head.

Since that time, her demeanor and ability to discuss the incident has “gotten worse.” He described her as just being “frozen” when the incident is being discussed.

On October 14, 2013, she was brought to the district attorney’s office for an interview prior to a scheduled trial. Prior to discussing the incident, she was very chatty, friendly, outgoing and open with respect to “mundane or everyday conversations.” When he and the assistant district attorney tried to discuss the case, however, there was an immediate change in her demeanor. He indicated that she had a fixed stare, was not talking and “seemed incapable of discussing it.”

At the meeting were Sergeant Taylor, the victim’s father and the assistant district attorney assigned to the case. No one was able to get anything out of her with respect to defendant or the alleged incident. Despite their best efforts, they were unable to get her to speak “even about her feelings.”

Defendant called Amanda Wilcox to testify on his behalf. She is the victim’s mother. She was present at the June 25, 2012 preliminary hearing. Contrary to Sergeant Taylor, she indicated that when the victim testified at the preliminary hearing, she was able to answer questions, she was not nervous, she spoke “eloquently” and was not emotional. Generally speaking, she described her child as being very outgoing, very talkative, very friendly, very intelligent and relating well with adults.

On cross, she indicated that her child was “strong in what she said” at the preliminary hearing, that there was no difficulty in getting her to pay attention, she did not give any one-word answers, she was not distracted and answered in complete sentences. The court notes that it does not find Ms. Wilcox’s testimony to be credible with respect to how her child testified at the preliminary hearing and what her demeanor was at the preliminaiy hearing. Her testimony is contrary to all of the other testimony, contrary to the child’s behavior records at school and contrary to what the court observed when it met with the child.

Kyle Rude also testified on behalf of defendant. He is an attorney who previously represented defendant. A meeting was arranged at his office so that he could speak with the child.

He found her to be outgoing, talkative, friendly and intelligent. She related well with him.

Significantly, she indicated to him without any prompting or leading questions whatsoever that she made up the story regarding defendant and had in fact not been truthful. She indicated that nothing happened that was inappropriate and that her motive in doing so was because she was angry at her stepfather and wanted to live with her father.

The Commonwealth seeks admission of the statements to Ms. Dangle, Ms. Moroz, Ms. Ziegler and Mr. Mowry under the Tender Years Hearsay Act (TYHA), 42 Pa. C.S.A. § 5985.1.

Under the TYHA, an out-of-court statement of a child sexual assault victim who is twelve years old or younger, is admissible into evidence in a criminal or civil proceeding if two requirements are satisfied. First, the trial court must find that the evidence is relevant and that the time, content, and circumstances of the statement provide sufficient indicia of reliability. Second, the child must either (1) testify at the proceedings; or (2) be deemed unavailable as a witness.

Commonwealth v. Walter, — Pa. — (February 18, 2014); 42 Pa. C.S.A. §5985.1 (a) (2) (i), (ii). However, where a child’s hearsay statements are testimonial, the indicia of reliability standard has been rejected as violative of a defendant’s confrontation rights. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004); Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d 163, 175-76 (2012); In the interest of: N.C., 74 A.3d 271 (Pa. Super. 2013).

In determining whether a statement is testimonial, the court must determine the primary purpose of the interrogation.

[A] court must determine whether the primary purpose of the interrogation was to establish or prove past events relevant to a later criminal prosecution. In making the determination as to the primaiy purpose of an interrogation, a court first should detennine whether the interrogation occurred during the existence of an ongoing emergency, or what was perceived to be an ongoing emergency. Although the existence -— actual or perceived — of an ongoing emergency is one of the most important factors, this factor is not dispositive because there may be other circumstances, outside of an ongoing emergency, where a statement is obtained for a purpose other than for later use in criminal proceedings. In determining the primary purpose of an interrogation, a court must also objectively evaluate the circumstances surrounding the interrogation, including the formality and location, and the statements and actions of both the interrogator and the declarant.

Commonwealth v. Allshouse, 36 A.3d at 175-76 (citation omitted); In the Interest of: N.C., 74 A.3d at 277.

Further, “where testimonial evidence is at issue, the sixth amendment demands what the common law requires: unavailability and a prior opportunity for cross-examination.” In the Interest of: N.C., 74 A.3d at 275 (citing Crawford, 541 U.S. at 68).

Defendant argues that the statements to Ms. Dangle, Ms. Moroz, Ms. Ziegler and Mr. Mowry were all testimonial. Defendant argues that the primaiy purpose of each of the interrogations was to establish or prove past events relevant to a later criminal prosecution. While conceding that an initial purpose may have been to address a perceived emergency, the main purpose was to establish criminal events for later prosecution.

With respect to the statements made to Mr. Mowry and Ms. Ziegler, the court does not hesitate in finding that they were non-testimonial in nature. The discussions occurred during the existence of an actual or perceived emergency relating to allegations of abuse. While the statements, in retrospect, may be used in a later criminal proceeding, they were not obtained for that purpose. The discussions took place in a school setting that was familiar to the victim, the discussions were informal, no police officers were present and the actions of both the victim and the respective school personnel when evaluated objectively point to adults addressing an immediate concern for the health and safety of the child.

With respect to Ms. Dangle, defendant concedes that while the first interview at the school may have been non-testimonial, the second interview at the agency’s office clearly was testimonial. The court cannot agree.

The whole purpose of Ms. Dangle’s meeting and interviewing the child was to determine if an incident occurred and if so, whether the child was in danger. Clearly, it was an emergency situation. The first interview occurred at the school and immediately after the agency was contacted by school personnel. It was informal and clearly designed to protect the child’s interests. The second meeting had the same purpose. Indeed, it was incumbent on Ms. Dangle to conduct the second meeting because at the first meeting, the child was not entirely forthcoming, seemed to be particularly emotional and wasn’t willing or able to fully communicate all of the details. Again, while the court recognizes that the statements in retrospect are intended to be used at a future criminal proceeding, this does not mean that the initial interrogation was not for the primary purpose of addressing an emergency. Moreover, the court concludes that the primary purpose was not to establish or prove past events relevant to a later criminal prosecution.

With respect to Ms. Moroz, the Commonwealth argues that this was essentially a first responder interview. The Commonwealth contends that at “the point” of the interview no one had a clear picture of what happened, the child was not “talking enough,” that Children and Youth wanted to determine if anything else was going on, that the child only gave bits and pieces, and that the purpose was to determine what occurred to ensure the safety and welfare of not only the alleged victim, but also her one year-old sibling who apparently was still in the home.

While the court sees some merit to the Commonwealth’s argument, the test is whether the primary purpose of the interrogation was to establish or prove past events relevant to a later criminal prosecution. In this case, the interrogation did not take place during the existence of an ongoing emergency or what was perceived to be an ongoing emergency. The child was removed from the home and in a safe environment. While there may have been a dual purpose in obtaining the statement, it cannot be concluded that the primary purpose was for a purpose other than for later use in a criminal proceeding.

The father took the child to the Child’s Advocacy Center. Also present at the center were a children and youth representative, a member of the multi-disciplinary team, and a representative from law enforcement.

Ms. Moroz conducted a forensic interview of the alleged child victim. The purpose of the interview was to have a conversation with the child in a non-leading format to determine if something happened. Ms. Moroz indicated that there was not an ongoing emergency and that the purpose was to determine past events. She conceded that the purpose was to establish or prove these past events and that they may be potentially relevant to later proceedings.

Her interview of the child was not only being videotaped but also being simultaneously watched by the other members of the “team.” She acknowledged that during the interview, she “paused” or stepped out and consulted with the team members to see if there was anything that needed to be clarified or something else that needed to be asked.

The interview took place on March 5, 2012 approximately a week after the alleged most recent incident. There was no evidence that it took place during the existence of an ongoing emergency. There also is no evidence that the statements were obtained for a purpose other than later use in a criminal proceeding. There does not appear to be any evidence that the statements were used for treatment purposes.

The interview was conducted in an informal setting but it was conducted as part of a criminal investigation and in consultation with law enforcement officials.

It is clear that defendant did not have the opportunity to cross-examine the victim during the interview. It is further true that the forensic interview was testimonial in nature. Finally, the Commonwealth has indicated that it does not intend to call the victim as a witness at trial and therefore she is unavailable. Accordingly, the court concludes that the admission of the statements to Ms. Moroz would violate defendant’s right of confrontation and shall not be admitted. See, Interest of N.C., supra.

The court will next address the statements to Kyle Mowry. By its terms, the statute permits hearsay statements that describe certain enumerated offenses. The court finds that the statements to Mr. Mowry do not describe any enumerated offense. The victim simply told Mr. Mowry that she had a secret with her stepfather and that she could not tell him. She indicated that she was not allowed to tell teachers, her mother or friends.

While the Commonwealth argues that these statements described an offense, they have not provided the court with any case or statutory support. The Commonwealth alleges that the unlawful contact is of a sexual nature and that defendant intentionally contacted the child waking her up in the middle of the night and giving her verbal instructions for the purpose of engaging in sexual activity. The child, however, did not provide any of those details to Mr. Mowry; she only told him that she had a secret. Accordingly, the court will not permit the Commonwealth to admit the hearsay statements of the child to Kyle Mowry.

The court will next address the statements to Lou Ann Ziegler and Melissa Dangle. The court finds that certain statements were made to these individuals by the child describing certain enumerated offenses. The court further finds that these statements are relevant and that the time, content and circumstances of them provide sufficient indicia of reliability. The statements were spontaneous, there was consistency and repetition, the conversations took place between a child and trusted adults in a safe setting, the child used terms that would be expected in a child of her age, and there was no motive to lie or fabricate.

Relying upon the testimony of attorney Rude, defense counsel argues that because the child went to see Mr. Rude on May 18,2012 and told him that she was not really sure that the incident happened with the defendant and that she thought it may have been a dream or that it seemed “fake a little bit,” her reliability earlier is in question. A review of the testimony of Mr. Rude, as well as the transcript of the interview between him and the child, however, does not reveal any recantation by the victim or any clear statement that the incident never occurred. In fact, it is as likely that the child may have been manipulated and/or pressured from the date that she first made her statements to the date that she spoke with Mr. Rude. Moreover, subsequent to the meeting with Mr. Rude, the child testified at the preliminary hearing consistent with her prior statements.

The court also finds the testimony of Sherry Moroz credible. She testified again on March 20, 2014. She indicated that she reviewed the transcript of the interview between Mr. Rude and the victim, and that the interview technique was flawed. The questions were suggestive and leading. She indicated that it was a “perfect example of how not to interview a child.” Moreover, and perhaps determinatively, she clearly noted that the child’s statements to Mr. Rude cast no doubt on the reliability of what the child said to her and the others initially. She expounded that she had no concerns about whether the child was being truthful or whether the child’s reliability was at issue. She further testified that she had no concerns that the child may have been pressured previously.

Under all of the circumstances, the court finds that with respect to the statements to Ms. Ziegler and Ms. Dangle, there were “particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who [was] testifying.” Walter, supra at 16, citing Commonwealth v. Delbridge, 855 A.2d 27, at 45 (Pa. 2003).

The final issue to be detennined in connection with the statements made to Ms. Dangle and Ms. Ziegler is whether the child is deemed to be unavailable as a witness.

In order for the child to be deemed unavailable as a witness, “the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate.” 42 Pa. C.S.A. § 5985.1 (a. 1); Walter, supra at 18.

As provided in the statute, the court observed and questioned the child outside of the courtroom and heard testimony from the child’s parents, as well as others who have dealt with the child in a therapeutic setting. 42 Pa. C.S.A § 5985.1 (a.l) (1), (2). Clearly, the child exhibited an increased unwillingness to speak about the alleged incidents. Contrary to her normal gregarious, open, and fun-loving disposition, her demeanor dramatically changes when she is placed in a situation where she is requested to discuss the alleged incidents. In essence, she refuses to not only talk about the incident, but to even acknowledge the questions. She becomes completely non-verbal, shrugs her shoulders, ignores the questions, evades answering, and more or less shuts down. She experiences physical symptoms including nervousness, a reddened face, and blank, far away staring eyes.

While the situation involving the child is not exactly like the child in the Walter case, it is somewhat similar. The difficulties that both children have experienced include severe negative reactions and freezing up upon discussing the instances of abuse.

In light of the above referenced discussion, the court will enter the following order.

ORDER

And now, this 27th day of March 2014, following hearings and upon consideration of the relevant statutory and case law, the court grants in part the Commonwealth’s motion to admit certain statements.

The court will admit the hearsay statements that the child made to Lou Ann Ziegler and Melissa Dangle about Chad touching her and the child pointing to her mouth when she was asked if any other body parts were involved.

The court will not admit the hearsay statements that the child made to Kyle Mowry or Sherry Moroz.


source: Caselaw Access Project

author: HIGGINS, J.,

license: Public Domain

text:
    Markantonis v. Markantonis

      Barry J. Cohen, for plaintiff.

      Michael Mancuso, for defendant.
    March 27, 2014
   HIGGINS, J.,

On March 12, 1998, plaintiff, Michael Markantonis, (“husband”) and defendant Norma Gabriela Markantonis (“wife”) were married in New Rochelle, New York. There were no children born of the marriage. The parties separated and husband filed a complaint in divorce on December 5, 2011. Husband claims that the marriage is irretrievably broken and requests dissolution of the marriage. Husband also requests equitable distribution of property rights. A divorce master’s hearing was held on June 4,2013, and the master’s report and recommendation was filed on August 2, 2013. On August 18, 2013, wife filed exceptions to the master’s report and recommendations and, thereafter, on August 21, 2013, husband filed counter exceptions. Oral arguments were held on the parties’ exceptions and we are now prepared to dispose of the exceptions.

When evaluating the merit of any exceptions filed to a divorce master’s recommendation, this court must first examine the master’s report. In Pennsylvania, “a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly to the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Childress v. Bogosian, 12 A.3d. 448, 456 (Pa. Super. 2011) (citation omitted). However, the master’s report “is advisory only... and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome.” Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000) (citation omitted). In determining issues of credibility, the master’s findings must be given the greatest weight because “it is he who heard and observed the witnesses.” Mott v. Mott, 453 A.2d 1038 (Pa. Super. 1982). “[Although the master’s report is entitled to great weight, it is the responsibility of the court to make the final equitable distribution.” Trembach v. Trembach, 615 A.2d 33, 35 (Pa. Super. 1992) (citing Morschhauser v. Morschhauser, 516 A.2d 10 (Pa. Super. 1986)).

In her first two exceptions, wife complains that the master erred in his valuation of the marital residence, which included rental buildings, and that the master erred by reducing the net value of the marital residence by 3.5%. The parties own two parcels, one which is the marital residence (“residence”) located at 732 Gilbert Road, Gilbert, Monroe County, Pennsylvania, and the other is located at 735 Gilbert Road, Gilbert, Monroe County, Pennsylvania. Both properties have rental units, however, the 735 Gilbert Road property (“rental property”) has only rental units and was not used as the marital residence. At the beginning of the master’s hearing, the parties stipulated to the appraisal and updated appraisal offered by husband’s expert Thomas G. McKeown. Wife did not admit to the values set forth in that appraisal, however, she stipulated to having the McKeown appraisal received into evidence. Wife offered her own testimony about the values of the properties. The appraisal submitted by husband gives a market value for the residence of $300,000.00 with a mortgage balance of $206,112.00, leaving a gross net value of $93,888.00. The master deducted 3.5% of the market value leaving a net value of $83,388.00. Wife, on the other hand, submitted a packet of photographs showing the condition of the residence. In addition, wife submitted several pictures of various properties in the area to establish the value of the residence. However, wife never testified to a value for the residence and the photos she introduced did not have any details for the other properties or a summary to explain the comparison used to value the residence. The valuations submitted by husband had an appraiser certificate and set for the method (valuation process and direct sales comparison) for the appraisal. Husband’s appraisal also considered the rental buildings in determining a value. After reviewing all of the evidence submitted at hearing, we see no error in the master’s valuation of the residence and we accept his valuation of the residence. Kohl v. Kohl, 564 A.2d 222 (Pa. Super. 1989).

Wife also complains that the master reduced the value by 3.5% which was not based on an actual third party sale. We may consider all factors which are relevant to equitable distribution, including, “[t]he expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.” 23 Pa. C.S.A. §3502 (10.2). Husband testified that he expects to sell the residence in the future. [Notes of testimony, June 4,2013, atp. 70 (hereinafter referred to as “N.T.”).] We see no error in the master deducting expenses for the sale of the residence, even where such expense is not immediate or certain. This exception is denied.

Next, wife complains that the master erred in assigning a zero net distribution to her on the rental property. She argues that she should receive a credit for the negative value. Initially we note that the mortgage is in the wife’s name alone even though this is marital property. This is the primary reason for the master to award the rental property to wife. Furthermore, the equitable distribution scheme was determined by the honorable Jonathan Mark after a hearing in regard to a post-nuptial agreement entered into by the parties. Judge Mark held that the agreement was binding and that under its terms husband receives 80% and wife receives 20% of the marital assets. Although she complains that the rental property has a negative value, wife provides no legal authority for her proposition that she is entitled to anything except a zero net distribution for this asset. Further, the master assigned 90% of the credit card debt to husband which totals $20,841.87. We have broad discretion in fashioning an award of equitable distribution. Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009) (citation omitted). In this regard we are satisfied with the distribution determined by the master and we will, therefore, deny wife’s exception on this issue.

Similarly, wife complains that the master erred in failing to award her credit from husband’s share of the distribution for marital funds used by husband to pay his attorney. As we have stated above, husband was assigned 90% of the marital debt which includes the credit card charge for husband’s attorney. However, the postnuptial agreement (“agreement”) clearly provides that the parties will bear their own costs including attorney’s fees. Consequently, we will award a credit to wife for the amount of $1,500.00.

Next, wife claims she failed to receive credit for delinquent mortgage payments for the rental property. During the master’s hearing, husband testified that he used the rental proceeds to pay the residential mortgage [N.T., p.36]. Husband stated that he preferred to lose the rental property rather than his residence [N.T., p.36]. The master heard all of this testimony as well as the testimony from wife. The master’s determination, particularly to the question of credibility of witnesses, will be given the fullest weight since he had the opportunity to observe and assess the behavior and demeanor of the parties. We find that the record supports the master’s determination and we will not disturb it. This exception is denied.

In her next exception, wife complains that the master erred in assessing a retirement account at Mt. Airy Lodge for $900.00 when no such benefit existed. Husband testified that wife received a 40IK plan from Mt. Airy, however, despite numerous requests, wife failed to disclose any information about the retirement plan [N.T., p. 67-68]. Husband stated that wife indicated the account has a value of $900.00. A review of the record indicates that wife presented no evidence to rebut the existence of a Mt. Airy retirement account. We find no error in the master assigning a value of $900.00 for the Mt. Airy 40IK under these circumstances. This exception is denied.

Wife filed an exception to the master’s award of alimony which she argues is inadequate and unreasonably limited in duration. “Alimony” is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay. Teodorski v. Teodorski, 857 A.2d 194 (Pa. Super. 2004). The purpose of alimony “is to provide the receiving spouse with sufficient income to obtain the necessities of life.” Stamerro v. Sramerro, 889 A.2d 1251, 1259 (Pa. Super. 2005) (citing Wagoner v. Wagoner, 538 Pa. 265, 270, 648 A.2d 299, 301 (1994). Alimony is generally based upon reasonable needs in accordance with the parties’ standard of living established during the marriage, and the payor’s ability to pay. Id, (citation omitted).

In his report, the master correctly pointed out that the agreement fails to address “maintenance” or alimony. The agreement was deemed to be valid by the honorable Jonathan Mark and we will not disturb his finding on that issue. Wife argues that the alimony awarded will not provide her with sufficient income to obtain the necessities of life. We agree.

The master specifically reviewed the following factors in determining alimony:

(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(4)The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions).
(15) The federal, state and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under chapter 35 (relating to property rights), to provide for the party’s reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.

(Master’s report filed August 2, 2013, at p. 9-10). Specifically, the master found factors 1-3, 5,16 and 17 bear on wife’s need for alimony. In general we accept the master’s report, however, we conclude that the rental property is not capable of producing rental income if wife uses it as her primary residence. Wife submitted an expense sheet (defendant’s Exhibit 15) which sets forth her expenses. We find the expenses to be reasonable necessary to provide her with life’s basic needs.

Wife is currently 54 years of age with a limited work history. In ordering alimony the court shall determine the duration of the order, which may be for a definite or an indefinite period of time which is reasonable under the circumstances. 23 Pa.C.S.A. § 3701(c). Under the circumstances in this case, we believe that alimony in the amount of $2,700.00 per month for a period of 36 months is more appropriate than $600.00 for 30 months. Although we believe that wife is capable of working to support herself, the jobs she is capable of performing are lower paying entry level jobs with little room for advancement. On the other hand, husband is a handyman who has built up the residence to attract several commercial tenants. As such we believe that husband has a greater earning capacity as well as the potential for other income from rentals. We are called upon to achieve economic justice in the divorce code, which includes alimony. Alimony is also designed to be rehabilitative, leading to the self sufficiency of the recipient. Pacella v. Pacella, 492 A.2d 707 (Pa. Super. 1985). In modifying the master’s award of alimony, we believe that we are achieving economic justice while allowing wife to become more self-sufficient. Accordingly, we will grant wife’s exception.

Next, we must consider the counter exceptions filed by husband in this matter. Husband complains that the master erred in awarding alimony to wife which he believes was waived by wife in their agreement. As we stated above, the agreement is silent on the issue of maintenance or alimony. We have set forth our reasoning in this matter. We find that husband’s exception lacks merit and is, therefore, denied.

In his second and final counter exception, husband argues that the master erred in awarding the rental property to wife where she shows no capacity to pay the mortgages, taxes or utilities. We recognize that until we modified alimony, as set forth above, wife lacked the capacity to pay the necessary items for the rental property. However, we believe that wife is now capable of paying these bills. Additionally, husband stated that he was unable to make these payments and he had fallen behind in the mortgage payments [N.T., p. 68]. Since we believe that wife will now have the ability to pay the mortgage, taxes and utilities for the rental property, we find that this argument lacks merit. Moreover, husband failed to support his argument with citation to legal authority. This exception is denied.

ORDER

And now, this 27th day of March 2014, it is ordered and decreed as follows:

1. Michael Markantonis, plaintiff and Norma Gabriela Markantonis, defendant are divorced from the bonds of matrimony.

2. The recommendations of the master for equitable distribution of the parties’ marital property are approved and made part of this decree, with the following amendments:

a. Defendant’s exception that the master erred in failing to award her credit from husband’s share of the distribution for marital funds used by husband to pay his attorney is granted. The sum of $1,500.00 shall be added to the distribution to defendant pursuant to the master’s report and recommendation.

b. Defendant’s exception regarding Alimony is granted. Alimony shall be modified requiring plaintiff to pay alimony in the amount of $2,700.00 per month for a period of 36 months, the commencement of which is to begin on the first day following the entry of the divorce decree.

c. All remaining exceptions of defendant are denied.

3. The counter exceptions of plaintiff are denied.

4. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered.


author: NEALON, J.,

text:
    LSF8 Master Participation Trust v. Tanana

      Steven K. Eisenberg and Andrew J. Marley, for plaintiff.

      Raymond W. Ferrario, for defendants.
    April 2, 2014
   NEALON, J.,

An assignee mortgagee has filed a motion for summary judgment in this mortgage foreclosure proceeding, and seeks an in rem judgment against the borrowers for principal balance, accrued interest, insurance, taxes, counsel fees and expenses allegedly due under the mortgage. The assignee contends that the borrowers’ averments in their responsive pleading are mere general denials under Pa.R.C.P. 1029(b) and constitute binding admissions that the borrowers are in default and owe the amounts claimed. The assignee alternatively argues that the affidavit of the mortgage service’s “default service officer” conclusively establishes that there is no genuine issue of material fact and that the assignee is entitled to judgment as a matter of law.

In their answer to the complaint, the borrowers specifically denied the default and damages allegations of the mortgage assignor, and further averred that certain mortgage payments were not credited by the assignor and that other payments were rejected by the assignor with the intent to improperly precipitate a default and accelerate the remaining payments due under the mortgage. As such, the borrowers have denied their liability “specifically or by necessary implication” under Rule 1029(b), as a result of which their responsive averments cannot be deemed admissions of their default and alleged responsibility for the principal, interest, charges and counsel fees claimed. Furthermore, since the borrowers have renewed the foregoing affirmative defense in their response to the motion for summary judgment, triable issues of fact exist which cannot be decided as a matter of law based upon the testimonial affidavit of the movant’s representative. Consequently, the assignee’s motion for summary judgment will be denied.

I. FACTUAL BACKGROUND

On July 2, 2013, HSBC Mortgage Services, Inc. (“HSBC”) instituted this mortgage foreclosure action against defendants, Brandy Tanana and Timothy Tanana (the “Tananas”). (Docket entry no. 1 at ¶1; Docket entry no. 3 at ¶1). The parties admit that on August 31, 2006, Brandy Tanana executed a note with her original lender, Wilmington Finance, Inc., pursuant to which she promised to repay the sum of $335,000.00 in monthly payments of $2,790.02 beginning on October 1,2006, and concluding on September 1, 2036. (Id. at ¶3 & Exhibit A). In connection with that note, Brandy Tanana and Timothy Tanana provided a mortgage to Wilmington Finance, Inc., with respect to their property at 417 Varsity Drive, Throop, Pennsylvania. (Id. at ¶4 & Exhibit B). The mortgage identifies Wilmington Finance, Inc., as the lender and Mortgage Electronic Registration Systems, Inc. (“MERS”) as the “nominee” for the lender and “the mortgagee” under the mortgage instrument. (Id., Exhibit B at p. 2).

The original plaintiff, HSBC, asserts in the complaint that on October 26, 2010, MERS executed an assignment of the Tananas’ mortgage to HSBC. (Id., Exhibit C). The assignment of the Tananas’ mortgage to HSBC was duly recorded as Instrument No. 20102230 in the Office of the Recorder of Deeds of Lackawanna County on November 10, 2010. (Docket entry No. 11, Exhibit A2). The current plaintiff, LSF8 master participation trust (“LSF8”), contends in its motion for summary judgment that the Tananas’ mortgage was later assigned to LSF8 on October 10, 2013, and that “said assignment is in the process of being recorded.” (Docket entry no. 11 at ¶ 6).

The mortgage foreclosure complaint alleges that the Tananas’ mortgage is in default for non-payment since March 2010, and that a “combined notice under Act 6 and Act 91” was forwarded to the Tananas prior to the commencement of this suit on July 2, 2013. (Docket entry no. 1 at ¶¶ 7-8). The “combined notice under Act 6 and Act 91” is dated October 2, 2012, identifies both the “original lender” and the “current lender/servicer” as HSBC, and advises the Tananas that the “total amount past due” for unpaid principal, interest, late charges and other fees is $126,832.63. (Id., Exhibit E at pp. 1-2, 4-5). The complaint, however, alleges that “[a]s of June 6, 2013, there is due and owing amounts secured by the mortgage in the sum of $474,322.10.” (Docket entry no. 1 at ¶ 9). In that regard, it avers that the sum of $474,322.10 “may not include all fees currently due and owing under the note and secured by the mortgage, including certain late fees, inspection charges, property preservation expenses, and attorney’s fees, since plaintiff has decided to forgo collecting those fees....” (Id.).

In their answer to the compliant, the Tananas “specifically deny the principal and mortgage due and unpaid, and the interest in pursuing charges, as asserted in plaintiff’s complaint, to be correct.” (Docket entry no. 3 at ¶¶7-9). The Tananas maintain that “[sjpecific payments were either not credited or incorrectly credited,” and that “other payments by the [Tananas] were rejected.” (Id.). Furthermore, the Tananas aver “that plaintiff has taken intentional actions to force the default by rejecting payments of the [Tananas] and miscalculating payments that have been made.” (Id.). Additionally, the Tananas assert that “[t]he notices of intention to foreclose fail to comply with the requirements of Act 6 of 1974,41 Pa.C.S. § 403, in that said Notices were stale” and “failed to contain sufficient information for the [Tananas] to readily calculate the precise amount of monies due and owing to plaintiff in order to avoid sheriff’s sale and foreclosure.” (Id. at ¶14).

LSF8 has filed a motion for summary judgment, and argues that it is entitled to an in rem judgment against the Tananas for the principal balance, interest, late charges, counsel fees and costs and “for foreclosure and sale of the mortgaged property.” (Docket entry no. 11 at p. 4). Although the complaint that was filed by LSF8’s purported assignor specifically alleges that the Tananas’ mortgage has been delinquent since “the March 2010 payment and all payments thereafter,” (Docket entry no. 1 at ¶7), LSF8 now contends that there is no genuine issue of material fact that the Tananas’ mortgage is due and owing “for the March 1, 2011 payment.” (Docket entry no. 11 at ¶¶7, 9). In support of that factual allegation, LSF8 attaches the affidavit of Melinda Girardeau who is identified as a “default service officer of Caliber Home Loans, Inc.” (Id. at ¶7 & Exhibit B). Ms. Girardeau attests in her affidavit that the amount due for principal balance, accrued interest, insurance and taxes is $481,480.49. (Id., Exhibit B at ¶7).

LSF8’s case dispositive motion avers that “[i]n their answer, [the Tananas] effectively admitted all the averments of the complaint as is further explained in Plaintiff’s brief.” (Docket entry no. 11 at ¶ 13). Citing New York Guardian Mortgage Corp. v. Dietzel, 362 Pa. Super. 426, 524 A.2d 951 (1987), LSF8 argues in its brief that the Tananas’ “answers appear to be general denials or denials improperly based upon conclusions of law,” and that those purported “general denials in their answer to the complaint must be considered admissions.” (Plaintiff’s memorandum of law at p. 5). Notwithstanding the fact that the complaint expressly avers that “plaintiff has decided to forgo collecting” any “late fees, inspection charges, property preservation expenses, and attorney’s fees,” (Docket entry no. 1 at ¶ 9), LSF8 also seeks the entry of judgment for “its attorney’s fees and costs” in its summary judgment motion. (Docket entry no. 11 at ¶ 18). Neither LSF8’s motion, nor its supporting brief, quantifies the amount of the counsel fees being sought, and the affidavit of Melinda Girardeau does not include any attorney’s fees and costs in the computation of the aggregate amount allegedly owed by the Tananas. (Id. Exhibit B at pp. 2-3).

In opposing LSF8’s motion for summary judgment, the Tananas assert that “[throughout this process, [they] have attempted to make payment arrangements to bring the loan absolutely current,” but that LSF8 “will not accept any monthly payments or any other type of payment.” (Docket entry no. 12 at p. 1). The Tananas submit that there are legitimate disputes regarding the alleged “amount that is outstanding, proper credits in terms of payments, the assessment of attorney’s fees and costs...and the Notices that were provide pursuant to Act 6 and Act 91.” (Id.). Specifically, they argue that “the notices under Act 6 and Act 91 were sent approximately one (1) year before the actual service of the foreclosure complaint,” and were “stale” and “by no means gave [the Tananas] the proper idea of what was necessary to bring the account current” at the time that suit was filed. (Id. at pp. 2-3). The parties’ have stipulated to submit this matter for a decision without the necessity of oral argument, and upon the filing of the Tananas’ opposing brief on February 24,2014, this matter became ripe for disposition.

II. DISCUSSION

(A) STANDARD OF REVIEW

“A motion for summary judgment should only be granted if there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law.” Smith v. Township of Richmond, 82 A.3d 407, 414-415 (Pa. 2013). The party seeking summary judgment bears the burden of proving the absence of a genuine issue of fact and the movant’s entitlement to judgment as a matter of law. Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 554, 981 A.2d 145, 154 (2009). In making that determination, the record must be viewed in the light most favorable to the nonmoving party, with all doubts as to the existence of a genuine issue of material fact being resolved against the movant. Lance v. Wyeth, 2014 WL 260309, at * 12 (Pa. 2014); Kinney-Lindstrom v. Medical Care Availability & Reduction of Error Fund, 73 A.3d 543, 551 (Pa. 2013).

Summary judgment may be entered in a mortgage foreclosure action “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.” Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998), app. denied, 557 Pa. 653, 734 A.2d 861 (1999); Sovereign Bank v. Gawron, 13 Pa. D. & C. 5th 71, 77 (Lacka. Co. 2010). Under the Nanty-Glo rule enunciated in Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163 A. 523 (1932), the party moving for summary judgment may not rely solely upon its own testimonial affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine issues of material fact. Shamis v. Moon, 81 A.3d 962, 965 (Pa. Super. 2013); Dearmitt v. New York Life Insurance Company, 73 A.3d 578, 595 (Pa. Super. 2013). “Our Supreme Court recently cautioned that ‘the function of the summary judgment proceedings...is not, and cannot, be used to provide for trial by affidavits or trial by depositions.” Coleman v. Wyeth Pharmaceuticals, Inc., 6 A.3d 502, 509 (Pa. Super. 2010) (quoting Stimmler. 602 Pa. at 554, 981 A.2d at 154), app. denied, 611 Pa. 638, 24 A.3d 361 (2011). Moreover, summary judgment should only be granted “where the right to such judgment is clear and free from all doubt.” Lynn v. Nationwide Insurance Company, 70 A.3d 814, 818 (Pa. Super. 2013) (quoting Toy v. Metropolitan Life Insurance Company, 593 Pa. 20, 34, 928 A.2d 186,195 (2007)).

(B) SUFFICIENCY OF BORROWERS’ DENIALS

LSF8 first argues that the Tananas have conclusively admitted the lender’s allegations that the subject mortgage is in default and that the claimed principal, interest and fees are owed since their responses to the relevant averments of the complaint constitute general denials under Pa.R.C.P. 1029(b). (Plaintiff’s brief at pp. 4-5). Rule 1029(b) states that factual “[ajverments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication,” and that except as provided in Rule 1029(e) governing actions for bodily injury, death or property damage, a “general denial...shall have the effect of an admission.” Pa.R.C.P. 1029(b). See also Swift v. Milner, 371 Pa. Super. 302, 308, 538 A.2d 28, 31 (1988) (stating that since “paragraphs three through ten of appellant’s answer merely contain the single word ‘Denied’..., these general denials effectively manifested appellant’s admission to the facts averred in paragraphs three through ten of appellee’s complaint”). In determining whether an answer “is a general denial under 1029(b), the court must examine the pleadings as a whole,” and remain mindful of “the fundamental principle that the plaintiff has the obligation of proving the defendant’s liability, and that the defendant does not become liable by failing to deny in exculpating detail the plaintiff’s incriminating allegations.” Com. by Preate v. Rainbow Associates. Inc., 138 Pa. Cmwlth. 56, 61 & n. 4, 587 A.2d 357, 360 & n. 4 (1991).

As LSF8 has noted in its brief, summary judgment may be entered in a mortgage foreclosure action if the borrowers admit their default under the mortgage and generally aver that they “are without information sufficient to form a belief as to the truth of the lender’s averment as to the principal and interest due by virtue of that default, even though the borrowers are clearly “parties who would have sufficient knowledge on which to base a specific denial.” Dietzel, 361 Pa. Super. at 429, 524 A.2d at 952. Accord First Wisconsin Trust Company v. Strausser, 439 Pa. Super. 192, 199-200, 653 A.2d 688,692 (1995). Flowever, if the borrowers admit their original default but further aver that they “have made repeated tenders of the full amount due and owing” and that their “tenders have been refused” by the lender, such a response is tantamount “to a denial ‘by necessary implication’ of any default” and cannot be considered an admission under Rule 1029(b). Mellon Bank. N.A. v. Joseph, 267 Pa. Super. 307,312 & n. 5,406 A.2d 1055, 1057 & n. 5 (1979) (quoting Pa.R.C.P. 1029(b)). Therefore, an answer by a borrower in a mortgage foreclosure proceeding, which acknowledges a default but alleges attempted tenders of the amount due, states a valid defense in the foreclosure action. Id. at 313, 406 A.2d at 1058 (holding that the borrower’s alleged tender of the amount due and owing is “relevant as a defense in the foreclosure action”).

Unlike the borrowers in Dietzel and Strausser, the Tananas have not generally denied the allegations of the complaint, nor have they claimed that they are without infonnation sufficient to form a belief as to the truth or falsity of those allegations. To the contrary, the Tananas specifically deny that the principal and interest alleged to be owed under the mortgage are due and unpaid, and further assert that LSF8’s assignor refused to accept the Tananas’ payments and failed to properly credit payments that were made. In addition, the Tananas aver that the predecessor lender took “intentional actions to force the default by rejecting payments...and miscalculating payments that have been made.” (Docket entry no. 3 at ¶¶ 7-9).

The Tananas’ responsive averments cannot be considered admissions under Rule 1029(b). Rather, they qualify as specific denials or denials “by necessary implication” under Joseph, supra. See 7 Summ. Pa. Jur. 2d Property § 21:92 (2d. ed) There is no merit to LSF8’s contention that the Tananas’ responsive averments should be deemed admissions for purposes of summary judgment. Hence, LSF8’s request for summary judgment on that basis will be denied.

(C) BORROWERS’ASSERTION OF COGNIZABLE DEFENSE

“In actions for in rem foreclosure due to the defendant’s failure to pay a debt, summary judgment is proper where the defendant [1] admits that [s]he had failed to make the payments due and [2] fails to sustain a cognizable defense to the plaintiff’s claim.” Gateway Towers Condominium Association v. Krohn, 845 A.2d 855, 858 (Pa. Super. 2004) (citing Strausser, supra). As discussed in Section 11(B) above, the Tananas have expressly denied their liability for the principal and interest claimed by LSF8. Moreover, the Tananas have asserted a valid, affirmative defense by maintaining that their tendered payments of the amounts due were rejected by LSF8’s assignor who intended “to force the default by rejecting payments.” See Joseph, 267 Pa. Super, at 313,406 A.2d at 1058.

LSF8 is not entitled to summary judgment based upon the affidavit of a “default service officer of Caliber Home Loans, Inc.” attesting that $481,480.49 is allegedly due and owing for principal balance, accrued interest, insurance and taxes. “Pennsylvania courts long have disapproved of trial by affidavit.” Murray, 63 A.3d at 1267. It is well settled in this Commonwealth that “testimonial affidavits of the moving party or [its] witnesses, even if uncontroverted, will not afford sufficient basis for the entry of summary judgment, because the credibility of the testimony is still a matter for the jury.” Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 472, 926 A.2d 899, 907 (2007); Wells Fargo Equipment Finance. Inc. v. Knitney Lines. Inc., 2013 WL 5768196, at * 2 n. 2 (Lacka. Co. 2013).

The fact-finder in this case must ultimately determine whether LSF8’s assignor attempted to intentionally trigger a default and corresponding acceleration of payments due by affirmatively rejecting mortgage payments that were allegedly tendered by the Tananas. If the fact-finder concludes that the predecessor lender engaged in such conduct, the Tananas may secure a verdict in their favor. See Joseph, supra. As a result, LSF8 has not satisfied its burden of establishing the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Accordingly, LSF8’s motion for summary judgment will be denied.

ORDER

And now, this 2nd day of April, 2014, upon consideration of “plaintiff’s motion for summary judgment” and the exhibits and memoranda of law submitted by the parties, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that the motion for summary judgment of plaintiff, LSF8 master participation trust by Caliber Flome Loans, Inc., solely in its capacity as servicer, is denied.

      . “Pennsylvania law requires that mortgage assignments must be in writing and filed with the counties’ recorders of deeds within six months of origination, 21 P.S. §621....” County of Washington. PA v. U.S. Bank N.A., 2012 WL 3860474, at * 2 (W.D. Pa.2012). The Tananas do not raise any argument based upon LSF8’s lack of a duly recorded assignment at the time that it filed the instant motion for summary judgment. Compare U.S. Bank, N.A. v. Mallory, 982 A.2d 986, 994 (Pa. Super. 2009) (holding that recording of assignment of mortgage was not prerequisite to mortgage assignee’s standing to institute mortgage foreclosure action, where assignee averred in its complaint that it was the “legal owner” of the mortgage and the holder of the mortgage’s note and was in the process of formalizing the assignment) with J. P. Morgan Chase Bank. N.A. v. Murray, 63 A.3d 1258, 1263 (Pa. Super. 2013) ('“Mallory does not stand for the proposition that a party that avers, but never substantiates, its entitlement to prosecute a foreclosure action due to assignment or succession is entitled to judgment thereupon”), and Wells Fargo Bank. N.A. v. Lupori, 8 A.3d 919,922(Pa. Super. 2010) (concluding that purported mortgagee lacked standing to prosecute foreclosure action, distinguishing holding in Mallory, and finding that “[sjince the complaint contains no mention of the alleged assignment from [First Franklin Financial] Corporation to Wells Fargo or any allegation that Wells Fargo was the owner of the Lupori’s mortgage, the complaint does not comply with Rule 1147(a)(1)”). See also David R. Greenberg, Neglected Formalities in the Mortgage Assignment Process and the Resulting Effects on Residential Foreclosures, 83 Temp. L. Rev. 253 (Fall 2010). It bears noting that on September 9, 2013, counsel for plaintiff filed a “praecipe for voluntary substitution of party plaintiff pursuant to Pa.R.C.P. 2352” which was captioned Household Mortgage Services. Inc. v. Brandy Tanana and Timothy Tanana, No. 13 CV 3556, and sought to “substitute VOLT 2012-RPL2 Asset Holdings Trust, as successor plaintiff for the originally named plaintiff.” (Docket entry no. 7). To compound matters further, approximately one month later, counsel for plaintiff filed another “praecipe for voluntary substitution of party plaintiff pursuant to Pa.R.C.P. 2352” on October 11, 2013, which bore the caption VOLT 2012-RPL2 Asset Holdings Trust v. Brandy Tanana and Timothy Tanana, No. 13 CV 3556, sought to “substitute LSF8 master participation trust, as successor plaintiff for the originally named plaintiff,” and averred that “[a]n assignment transferring the mortgage to LSF8 master participation trust is in the process of being recorded in the office of the recorder of deeds for Lackawanna County.” (Docket entry no. 8). The summary judgment record is devoid of any documented proof of an assignment from “Household Mortgage Services, Inc.” or HSBC Mortgage Services, Inc. to VOLT 2012-RPL2 Asset Holdings Trust, or a subsequent assignment from VOLT 2012-RPL2 Asset Holdings Trust to LSF8.

      . LSF8 has not claimed that its right to recover in this case is unaffected by the actions of the assignor(s). In previously rejecting such an argument and finding that a mortgage assignee’s rights against mortgagors are subject to any affirmative defenses that the mortgagors could assert against the assignor, we reasoned:
      Under the law of assignment, the assignee stands in the shoes of the assignor and “succeeds to no greater rights than those possessed by the assignor.” Crawford Central School District v. Com., 585 Pa. 131, 137, 888 A.2d 616, 619-620 (2005). “Conversely, an assignee’s right against the obligor is subject to all of the limitations of the assignor’s right, to all defenses thereto, and to all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” Smith v. Cumberland Group. Ltd., 455 Pa. Super. 276,286, 687 A.2d 1167, 1172 (1997) (citing Peoples Pittsburgh Trust Company v. Com., 359 Pa. 62, 627-28,60 A.2d 53, 56 (1948)). Accord, American Lumber Corp. v. National R.R. Passenger Corp., 886 F.2d 50, 55 (3d Cir. 1989) (“[A]n assignee of a chose of action takes it subject to all defenses...existing at the time of the assignment” (quoting General Electric Credit Corp. v. Security Bank, 244 A.2d 920, 923 (D. C. App. 1968))); E-Time System. Inc. v. Voicestream Wireless Corp.,
        2002 WL 1917697, at * 9 (E.D. Pa. 2002) (“Importantly, it is a universal and uncontroversial tenet of contract law that an assignee of a claim takes the same subject to all defenses that could validly have been raised by the defendant against the assignor at the time of the assignment.”) (citing North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U.S. 596 (1894)); Restatement (Second) of Contracts §336(2) (“The right of an assignee is subject to any defense... of the obligor which accrues before the obligor receives notification of the assignment....”).

        Gawron, 13 Pa. D. & C. 5th at 81-82.

      . In light of the denial of LSF8’s case dispositive motion on that basis, it is unnecessary to address the Tananas’ alternate argument that the “combined notice under Act 6 and Act 91” was “stale” and invalid since it was dated nine months prior to the institution of this suit. Section 403 of the Act of January 30, 1974, P.L. 13, No. 6 (“Act 6”), 41 P.S. § 403, and section 403-C of the Act of December 23,1993, P.L. 385, No. 91 (“Act 91”), 35 P.S. § 1680. 403c, require a lender to notify the borrower of its intent to accelerate the maturity of any mortgage obligation or to commence any legal action to recover that obligation, and to advise the mortgagor of the debtor’s right to cure the default and resolve any arrearages in order to avoid foreclosure. See Fish v. Pennsylvania Housing Finance Agency, 931 A.2d 764,767 (Pa. Cmwlth. 2007); Bankers Trust Co. v. Foust, 424 Pa. Super. 89,92-93, 621 A.2d 1054, 1056 (1993), app. denied, 535 Pa. 635, 631 A.2d 1007 (1993). A federal bankruptcy judge has reasoned that an Act 91 notice, which is not provided to the borrower in the same year that foreclosure litigation is filed, is ineffective. See In re Miller, 90 B.R. 762, 769 (Banker E.D. Pa. 1988) (“We therefore conclude that the plaintiff’s failure to dispatch an Act 91 notice during the year 1987, in these circumstances, also constituted a meritorious defense to the Complaint, and possibly deprived the state court of jurisdiction to enter the default judgment presently under attack”). But see Beneficial Consumer Discount Co. v. Vukman, 11 A.3d 547, 553 (Pa. 2013) (“Accordingly, we find the provision of a defective Act 91 notice does not deprive the courts of subject matter jurisdiction, and we remand this case to the trial court”). Former Lackawanna County (now Senior U.S. District) Judge James M. Munley similarly denied a lender’s motion for summary judgment on the ground that its statutory notices were “stale” since they were furnished ten months prior to the commencement of suit and “the amount of the alleged default surely changed by that time.” PNC Bank. N.A. v. Bibalo, No. 95 CV 5491 at p. 7 (Lacka. Co. Apr. 21, 1997). Although not raised by the parties in this case, it is noteworthy that an Act 6 Notice is required only where the principal amount due is $217,873.00 or less, 41 P.S. §§ 101,403, whereas an Act 91 notice is unnecessary if the mortgagor is more than twenty-four months in arrears or the aggregate amount of arrearages due exceeds $60,000.00. 35 P.S. § 1680.403c(f)(l)-(2). According to the complaint, the sum of $126,832.63 was due at the time of the Act 6 notice on October 2, 2012, but $474,322.10 was allegedly owed as of the date that this mortgage foreclosure action was instituted. If, as the complaint alleges, the Tananas have not made a mortgage payment since March 2010, the mortgage was thirty-one months in arrears when the Act 91 notice was furnished. However, if the mortgage is delinquent since March 2011, as asserted in the motion for summary judgment, the mortgage was only nineteen months in arrears as of October 2, 2012.