author: PER CURIAM,

text:
    In the Matter of Hall

      Disciplinary Board,
    No. 171 DB 2006
    March 17, 2015
   PER CURIAM,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, The Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

By order of November 30, 2006, the Supreme Court of Pennsylvania disbarred Robert Eric Hall on consent based on his conviction of homicide by vehicle/DUI and related offenses. Mr. Hall filed a petition for reinstatement on October 30, 2013. Office of Disciplinary Counsel filed a response on April 11, 2014.

A reinstatement hearing was held on July 9 and September 5, 2014, before a District II Hearing Committee comprised of Chair Daniel J. Rovner, Esquire and Members Timothy R Brennan, Esquire and Patrick J. Murphy, Esquire. Petitioner was represented by Samuel C. Stretton, Esquire. Petitioner testified on his own behalf and presented the testimony of twelve witnesses.

Following the submission of a brief by petitioner, the hearing committee filed a report on January 6, 2015 and recommended that the petition for reinstatement be granted.

No briefs on exception were filed by the parties.

This matter was adjudicated by the disciplinary board at the meeting on January 15, 2015.

II. FINDINGS OF FACT

The board makes the following findings:

1. Petitioner is Robert Eric Hall. He was bom in 1959 and was admitted to practice law in Pennsylvania in 1984. His attorney registration address is 7052 Bell Gate Rd., Coopersburg, PA 18036. Petitioner is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

2. Petitioner was disbarred on consent by order of the Supreme Court dated November 30, 2006, as a result of his criminal conviction for homicide by vehicle and related offenses.

3. Petitioner began his legal career working as an associate in the law firm of White and Williams in Philadelphia. He subsequently founded and became the managing partner of the Allentown office of that law firm in 1989. Petitioner concentrated his practice in insurance defense work as a trial lawyer but subsequently began representing professional athletes in the area of sports law and founded that department within the law firm. (9/5/14 NT. 15-17)

4. Petitioner tried approximately 70 cases to jury verdict and hundreds of cases to arbitration. He also tried many non-jury, asbestos related cases in Philadelphia County. (9/5/14 N.T. 18)

5. Petitioner argued approximately 25-30 times in the Superior Court of Pennsylvania. (9/5/14 N.T. 19)

6. Petitioner opened his own law firm in 2001, which was called R.E. Hall & Associates and was located in Bethlehem, Pennsylvania. (9/5/14 N.T. 19-21)

7. Petitioner credibly testified about his alcohol problem. Petitioner did not drink in excess as a young man, but began drinking with more regularity at the time of his first divorce in 1992. (9/5/14 N.T. 22,23)

8. Petitioner’s drinking also increased when he began representing professional athletes. Petitioner noted that part of representing such athletes involved recruiting and getting to know them. For petitioner, this involved drinking alcohol as part of the recruiting process. Petitioner, as a result, became a problematic drinker by the year 2000. (9/5/14 N.T 24-27)

9. Petitioner had a driving under the influence arrest in the year 2002, which he resolved with A.R.D. disposition. (9/5/14 N.T. 31, 32)

10. Petitioner described the circumstances of the automobile accident, which resulted in his criminal conviction. He indicated that on November 23, 2005, he was drinking at a bar in Allentown. Petitioner was driving a sports car, which he wanted to show off to a man he just met at the bar. (9/5/14 N.T. 38-40)

11. Petitioner was driving too fast while showing off his car when someone pulled out in front of him and he swerved to avoid hitting that car. He missed that car, but his car fishtailed and his tires spun out and he struck the car of a young man, a cadet at the United States Military Academy at West Point, who was driving in the other lane. The victim’s name was Anthony Severo and he died as a result of the accident. (9/5/14 NT. 41,42)

12. Petitioner entered a guilty plea to homicide by vehicle, a felony of the third degree; homicide by vehicle — DUI related, a felony of the second degree; driving under the influence, a misdemeanor of the second degree, second offense; recklessly endangering another person, a misdemeanor of the second degree; and, reckless driving, a summary offense. Petitioner’s total sentence was 6 to 12 years of incarceration.

13. Petitioner noted that, after reading comments of the victim’s parents in a newspaper, petitioner asked to revoke his bail and begin serving his jail sentence early because he realized he had to go to jail for what he did. This was against the advice of petitioner’s attorney. Petitioner felt this was the only thing he could do to take away some of the pain of the victim’s parents, and he did not want to set a bad example for his four children by failing to take responsibility. (9/5/14 NT. 45-47,194-198)

14. While incarcerated, petitioner was subjected to violence due to his status as a lawyer and the fact that he refused to do legal work for fellow inmates. (/5/14 NT. 61-66, 71,72)

15. Petitioner was released from prison on June 19, 2012, after serving six years of incarceration. He is currently on parole. (9/5/14 NT. 45-47, 194-198)

16. Petitioner was injured in the accident and his feet were fractured. Once he left the hospital on November 24, 2005, he entered inpatient alcohol rehabilitation at Caron Foundation until the end of December of 2005. (9/5/14 NT. 51,52)

17. After completing the Caron program, petitioner went to Livingrin in Allentown for three months, where he attended outpatient therapy three times per week and began the Twelve Step program. (9/5/14 N.T. 52-54)

18. During his incarceration, petitioner completed alcohol related programs that were provided at the institutions. (9/5/14 N.T. 55-57)

19. Following his release from incarceration, petitioner began attending Alcoholics Anonymous on a regular basis, and intends to continue his participation. (9/5/14 N.T. 74-79)

20. Petitioner’s last drink of alcohol was on November 23, 2005, the day of the accident. He has been sober since that time. (9/5/14 N.T. 47,48)

21. In July of 2012, petitioner obtained employment as a legal assistant at the law firm of Gross McGinley, LLP in Allentown. He works as an hourly employee approximately 40 hours per week. (9/5/14 N.T. 800

22. Both petitioner and the law firm notified the disciplinary board of his work as a legal assistant. (Pet. Exhibits 1-A and B; 9/5/14 N.T. 81, 82)

23. Petitioner as a legal assistant has had no client contact. His employment entails researching and drafting pleadings. (9/5/14 N.T. 94, 95)

24. Petitioner has complied with Pennsylvania Rules of Disciplinary Enforcement 217(j) and all other requirements of a disbarred lawyer, while working as a legal assistant. (9/5/14 N.T. 94)

25. Petitioner has no driving privileges at this time due to his criminal conviction and rides to his job on his bike, which is approximately 13 to 14 miles each way. (9/5/14 N.T. 85)

26. Petitioner had a serious bike accident on September 28, 2012. He was hospitalized for bleeding on the brain and received numerous stitches. He went back to work as soon as he was able. (9/5/14 86-90, 91-93)

27. Petitioner has a passion for biking and he and his wife, a professional bicyclist, own a bike shop in the Allentown area. (9/5/14 N.T. 82,83)

28. Petitioner has taken all the requisite Continuing Legal Education courses for reinstatement. He also reads the Legal Intelligencer, the Lehigh Law Journal, and conducts research on West Law to maintain his currency in the law. (9/5/14 N.T. 96, 97)

29. Since petitioner’s release from prison, he has volunteered with organizations in Bucks County and Lehigh County involved with alcohol rehabilitation. He works with the Lehigh County Probation Department assisting with repeat DUI offenders. He speaks regularly at forums on behalf of Mothers Against Drunk Driving (“MADD”). He has given presentations at area community colleges and high schools. (9/5/14 N.T. 98-102)

30. Petitioner intends to continue his volunteer efforts for as long as he is able. (9/5/14 N.T. 103, 104)

31. If reinstated, petitioner would like to work with Lawyers Concerned for Lawyers to help other lawyers who have problems with alcohol addiction. (9/5/14 105,106)

32. Petitioner cooperated fully with office of disciplinary counsel in its investigation and supplemented his reinstatement questionnaire on two occasions with tax information. (9/5/14 N.T. 109-111)

33. Petitioner owes taxes for the year 2005, which he has been contesting with the IRS. Petitioner is current in his taxes for all other years. (9/5/14 N.T. 112-115)

34. Petitioner has two collection lawsuits against him for matters he fell behind on while incarcerated. (Exh. P-5; 9/5/14 N.T. 120-125)

35. Petitioner attempted to get all those who owed money to him to pay, which he turned over to his family. He settled a bad faith case regarding his insurer and has a lawsuit against the Commonwealth related to a road defect and his bike accident, which is pending. (9/5/14 N.T. 116, 120-122, 123)

36. Petitioner has been sued for malpractice. He noted that the case is pending and he is vigorously defending. (9/5/14 N.T. 127-129,130)

37. Petitioner credibly testified that he is prepared to handle the stress of practicing law. He indicated that he never found law to be stressful and enjoyed his practice. No evidence was presented to raise doubts as to petitioner’s competency and ability to handle the rigors of law practice. (9/5/14 N.T. 132, 133)

38. Petitioner has spent considerable time reflecting on his actions and accepts full responsibility for his misconduct, which caused the death of Anthony Severo, and expressed profound and genuine remorse for his misconduct. (9/5/14, N.T. 141, 142)

39. Petitioner noted several turning points during the course of coming to terms with his actions, including a moment he began believing in a higher power, reading about the accident and realizing he needed to go to jail, explaining his decision to his children and his realization that he needed to show how he has changed through his current acts. (9/5/14 N.T. 134-140, 194, 201)

40. Petitioner testified as follows:

“I try to show my remorse through the speaking that we all know about. I try to show my remorse as much as I possibly can because I’d like Anthony to be proud of the way I handled myself. I think about that a lot. So the things I tend to think about and that motivate me go well beyond practicing law and other things. These are things that, when you talk about, people get queasy. I understand that. If you want to know what’s in my heart, that’s what’s in my heart. I want to do good so bad and I want to help people. I do not want my story to become other people’s story. That’s what I tell them because sometimes people take it the wrong way.” (9/5/14 N.T. 199-200)

41. In his personal life, petitioner has become very active with the Catholic Church and has made strides to repair fractured relationships with his four children, three of whom are adults and one still a teenager. (9/5/14 N.T. 9-12, 140, 141)

42. Petitioner introduced the testimony of 13 witnesses, which included Rebecca Hall, his wife; Frank Smolinsky, his parole agent; Sandra Lacovino, a volunteer for MADD; Martin Nothstein, an Olympic gold medalist bike racer; six attorneys from the Lehigh Valley area, including his current supervisor, Victor Cavacini, Esquire; Cari Doughty, a parole officer; and two individuals who attend AA with petitioner. (See 7/9/14 Notes of Testimony)

43. These witnesses credibly testified to petitioner’s remorse for his actions and the fact that he has taken full responsibility. The attorney witnesses testified to petitioner’s excellent work product and his diligence in handling his tasks. These witnesses overwhelmingly credibly testified to petitioner’s excellent reputation in the community and fully support petitioner’s reinstatement to the bar. {See 779/14 Notes of Testimony)

44. If reinstated, petitioner intends to practice law with his current employer, Gross McGinley, LLP in the areas of personal injury and insurance litigation.

45. Office of Disciplinary Counsel does not oppose reinstatement.

III. CONCLUSIONS OF LAW

1. The misconduct for which petitioner was disbarred is not so egregious as to preclude reinstatement. Office of Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa. 1986)

2. Petitioner has demonstrated by clear and convincing evidence that a sufficient period of time has passed since the misconduct. In re Verlin, 731 A.2d 600 (Pa. 1999)

3. Petitioner has demonstrated by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required to practice law in Pennsylvania, and his resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Pa.R.D.E. 218(c)(3).

IV. DISCUSSION

Petitioner seeks reinstatement to the bar of the Supreme Court of Pennsylvania following his disbarment on consent by order of the Supreme Court of Pennsylvania dated November 30,2006.

Petitioner’s request for readmission is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa. 1986). The Keller standard provides that when reinstatement is sought by a disbarred attorney, the threshold question must be whether the magnitude of the breach of trust would permit resumption of practice without a detriment effect upon the integrity and standing of the bar or the administration of justice nor be subversive of the public interest. This inquiry recognizes that some forms of misconduct are so egregious that they will bar the attorney from successfully gaining reinstatement. As a threshold matter, therefore, the Board must determine whether petitioner’s breach of trust was so egregious as to preclude his reinstatement. See In re Verlin, 731 A.2d 600 (Pa. 1999): Office of Disciplinary Counsel v. Costigan, 664 A.2d 518 (Pa. 1995).

We note from the outset that there is no exact case on point for the crimes for which petitioner pled guilty that resulted in the reinstatement of that attorney. However, many attorneys who have been disbarred for very serious misconduct have been reinstated after meeting the Keller threshold.

There are numerous examples of cases where the threshold question has been met involving conversion of substantial client funds and other criminal conduct. See In re Greenberg, 749 A.2d 434 (Pa. 2000) (misappropriation of $2 million and commission of perjury in bankruptcy proceeding); In re Costigan, 664 A.2d 518 (Pa. 1995) (conviction for theft offenses); In re Perrone, 777 A.2d 413 (Pa. 2001) (filing false fee petitions with the court); Office of Disciplinary Counsel v. Milton Raiford, 50 DB 1994 (Pa. 2010) (criminal convictions for perpetrating fraud on the criminal justice system of Allegheny County). In the recent case of Office of Disciplinary Counsel v. Michael K. Simon, 149 DB 2005 (Pa. 2014), Mr. Simon converted and embezzled nearly half a million dollars of clients’ funds: His actions were not so egregious as to bar reinstatement.

The above cases are examples of serious and deplorable criminal acts by lawyers, all of whom were able to meet the threshold standard and achieve reinstatement. Although the instant matter regrettably involves the death of a young man caused by petitioner’s use of alcohol and reckless driving, these crimes do not have the intentional aspect which might weigh against reinstatement. The board concludes that petitioner’s acts were not so egregious as to prevent reinstatement.

A related question in reinstatement from disbarment matters is whether petitioner has met his burden of proving by clear and convincing evidence that his resumption of the practice of law will not have a detrimental impact of the integrity and standing of the bar, the administration of justice or the public interest. Office of Disciplinary Counsel v. Keller, supra. The board must consider the quantity of time that has passed since petitioner was disbarred and his efforts at a qualitative rehabilitation, in order to determine whether the detrimental impact of the misconduct on the public trust has dissipated. In re Verlin, 731 A.2d 600 (Pa. 1999).

Petitioner was disbarred on consent on November 30, 2006. Petitioner has been removed from the practice of law for approximately seven and a half years as of the date of the reinstatement hearing. The only firm timetable set by the Supreme Court in reinstatement from disbarment matters is the five year waiting period after disbarment. Pa.R.D.E. 218(b). Whether sufficient time has passed must be determined by the unique circumstances of each case. The record in this case demonstrates that the period of disbarment has been qualitative and meaningful to petitioner’s rehabilitation and has dissipated the impact of the original misconduct on the public trust.

Petitioner has made substantial changes to his life, including serious alcohol rehabilitation which has helped him to abstain from alcohol and stay sober. Immediately following the tragic accident, he entered inpatient treatment, followed by a lengthy outpatient treatment. While incarcerated, he availed himself of alcohol programs provided by the institutions. Upon release, he began attending AA meetings, where he remains active. Not content to simply attend meetings, petitioner has demonstrated a desire to give back and to work with others who have alcohol problems. He has done that repeatedly through his assistance to the Lehigh County Probation Department and through MADD. He has given presentations at schools and other community events concerning the topic of alcoholism.

Petitioner’sdisbarmenthasprovidedhimtheopportunity for reflection. He accepts complete responsibility for his misconduct and has expressed deep and genuine remorse. He carries the heavy weight of his knowledge that his actions caused the death of another person. He recognizes the need to make amends and has done so at every opportunity.

Petitioner’s character witnesses testified to his current excellent reputation in the community and had no hesitation in recommending his reinstatement to the practice of law. Attorneys who testified on his behalf lauded his legal skill and competence.

Petitioner has been employed as a legal assistant at the law firm of Gross McGlnley, LLP since July of 2012. He has been properly supervised and has not engaged in the unauthorized practice of law. Petitioner has maintained his knowledge in the law through his work as a legal assistant, his review of legal periodicals and newspapers, and the completion of his CLE credits. In addition to his legal employment, petitioner and his wife followed their shared passion for biking and opened a bike shop in the Allentown area.

The evidence of record demonstrates that petitioner’s seven and a half years of disbarment have been a time of genuine rehabilitation. See Office of Disciplinary Counsel v. Gerard Emmett Evans, 10 DB 2001 (Pa. 2008); Office of Disciplinary Counsel v. Mark Allen Kovler, 172 DB 2002 (Pa. 2009). Petitioner has met the requirements of Pa.R.D.E. 218(c)(3) by showing he is morally qualified, competent and learned in the law, and of equal importance, that his reinstatement will not be detrimental to the public or to the profession. For all of the above reasons, we recommend that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Robert Eric Hall, be reinstated to the practice of law.

The Board further recommends that, pursuant to Rule 218(f), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

ORDER

And now, this 17th day of March, 2015, upon consideration of the report and recommendations of the Disciplinary Board dated February 19, 2015, the petition for reinstatement is granted.

Petitioner is directed to pay the expenses incurred by the Board in the investigation and processing of the petition for reinstatement. Pa.R.D.E. 218(f).


source: Caselaw Access Project

author: SMYTH, J.,

license: Public Domain

text:
    PHH Mortgage Corp. v. Ahmed

      C.P. of Montgomery County,
    Nos. No. 12-05205; 2967 EDA 2014

      Pro se appellant.

      Mario J. Hartyon, for appellee.
    March 31, 2015
   SMYTH, J.,

Defendant/appellant, the mortgagor, has appealed to the Superior Court of Pennsylvania from an order of this lower court granting plaintiff’s motion for summary judgment in rent in foreclosure upon a mortgage. The mortgagor’s appeal somewhat surprised the court; the parties had not orally argued the motion for summary judgment, having both waived argument under our local rule, Montg.Co.R.C.P. 1035.2(a); see generally Pa.R.C.P. 239.7 (“Every court shall promulgate a local rule, numbered Local Rule 1035.2(a), which describes the court’s procedures for the disposition of motions for summary judgment and which (1) shall set forth the manner in which motions for summary judgment are scheduled, argued[,] and decided . ...”), and the mortgagor’s written opposition to the motion for summary judgment had been desultory — perfunctory at best.

We discovered that, after we entered our order granting summary judgment, the mortgagor’s counsel withdrew and was replaced by new counsel, who filed the appeal. The copy of the notice of appeal served on the undersigned issuing judge did not fully comply with the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 904(c)-(d), and Pa.R.A.P. 906(a)(3)-(4), but we dismissed these violations of the rules as de minimis and proceeded to order the mortgagor, pursuant to Pa.R.A.P. 1925(b), to file and serve a concise statement of the errors complained of on appeal.

The mortgagor, through new counsel, responded to our 1925(b) order by filing a statement raising four issues with our order granting plaintiff’s motion for summary judgment.

The issues are devoid of merit; this opinion addresses them in the context of our grant of judgment.

The general standards that guide decisions on motions for summary judgment appear in the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1035.2:

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 could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion ... 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.

Also,

[T]he adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.

Pa.R.C.P. 1035.3(a).

“Summary judgment may be granted only in cases where the record demonstrates beyond any doubt the absence of a genuine issue of material fact and that on the facts adduced, the moving party is entitled to judgment as a matter of law.” Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d 855, 858 (Pa. Super. Ct. 2004) (affirming summary judgment in mortgage foreclosure). “In actions for in rem foreclosure due to the defendant’s failure to pay a debt, summary judgment is proper where the defendant admits that he had failed to make the payments due and fails to sustain a cognizable defense to the plaintiff’s claim.” Id. (citing First Wis. Trust Co. v. Strausser, 439 Pa. Super. 192, 204, 653 A.2d 688, 694 (1995)); accord Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct. 1998); N.Y. Guardian Mortg. Corp. v. Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (1987). “The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion.” Strausser, 439 Pa. Super, at 198, 653 A.2d at 691 (citing Hetrick v. Apollo Gas Co., 415 Pa. Super. 189, 608 A.2d 1074 (1992)); accord, e.g., Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585-86, 812 A.2d 1218, 1221-22 (2002) (“Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment” (citations omitted)); Cunningham, 714 A.2d at 1056.

The first issue raised in the statement of matters complained of on appeal contesting the grant of summary judgment posits “that there was a genuine issue as to the material fact of whether the mortgage loan was in default as plaintiff alleged.” (Errors Complained para. 1.) We presume from the statement’s placing this issue first that it is the mortgagor’s strongest or most persuasive issue on appeal, pursuant to the maxim of appellate advocacy, “Give the best argument first,” Lynn Bahrych, Legal Writing in a Nutshell 20, 224 (4th ed. 2009). If so, we are convinced even more than we were previously that this appeal lacks merit, because none is present in this issue.

Plaintiff’s and defendant’s pleadings on the issue of whether the mortgage was in default framed the issue thusly: Plaintiff’s complaint averred,

The mortgage is in default because monthly payments of principal and interest upon said mortgage due 02/01/2010 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of [Mortgagor to make such payments after a date specified by written notice sent to mortgagor, the entire principal balance and all interest due thereon are collectible forthwith.

(Compl. para. 5.) The entirety of the mortgagor’s corresponding response to this averment in his answer to the complaint states that it is “[djenied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment of this paragraph and demands proof thereof.” (Ans. para. 5.)

Initially, we observe that the mortgagor’s answer itself was not timely filed. The Pennsylvania Rules of Civil Procedure provide, generally, “[Ejvery pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading.” Pa.R.C.P. 1026(a). Here, plaintiff served the complaint on defendant on May 24, 2012. (Aff. Service, June 12, 2012.) Twenty-nine days later, on June 22, 2012, defendant filed (untimely) preliminary objections to the complaint, see generally Pa.R.C.P. 1028, to which plaintiff responded on June 28,2012. On November 2,2012, defendant withdrew the preliminary objections, but then did not file the answer to the complaint until more than two months later, on January 10, 2013. The timing of defendant’s pleadings alone suggests he may have interposed them mainly for purposes of delaying final judgment. We did not cite the lateness of his pleadings as grounds for granting summary judgment, but have raised the lateness here as a preface to our analysis of whether defendant’s untimely answer properly pled a defense to the complaint in mortgage foreclosure. Cf Peters Creek Sanitary Auth. v. Welch, 545 Pa. 309, 681 A.2d 167 (1996) (finding no abuse of discretion in trial court’s grant of plaintiff’s oral motion to strike answer to complaint filed on eve of trial as late under Pa.R.C.P. 1026(a) despite plaintiff’s failure to move for judgment by default and establishing that party filing late pleading must show just cause for delay before opponent must show prejudice from lateness); Vision Serv. Plan v. Pa. AFSCME, 326 Pa. Super. 474, 474 A.2d 339, appeal after remand, 331 Pa. Super. 217, 480 A.2d 322 (1984) (affirming refusal to open default judgment entered against defendant who tried to file preliminary objections without a supporting brief one day beyond extension granted by plaintiff’s counsel); Delgrosso v. Gruerio, 255 Pa. Super. 560, 389 A.2d 119 (1978) (upholding order reinstating default judgment and dismissing preliminary objections filed one day beyond period trial court had allowed under Pa.R.C.P. 1003 in prior order opening judgment).

We turn to examine the merits of the pleadings. The complaint’s allegation that the mortgage was in default complied with the Rules of Civil Procedure, which provide, in an action in foreclosure, that the complaint shall include “a specific averment of default.” Pa.R.C.P. 1147(a)(4). However, defendant’s denial of default did not comply with the Rules of Civil Procedure, which establish these general requirements for responsive pleadings:

(a) A responsive pleading shall admit or deny each averment of fact in the preceding pleading or any part thereof to which it is responsive. . . . Admissions and denials in a responsive pleading shall refer specifically to the paragraph in which the averment admitted or denied is set forth.
(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. 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.
(c) A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.

Pa.R.C.P. 1029(a)-(c) (emphasis added). (Subdivision (e) of the rule relates solely to actions in tort and is not applicable to this action in foreclosure.) The note to subdivision (c) of the rule explains further that, “Reliance on subdivision (c) does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true or false. See Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978).” Pa.R.C.P. 1029(c) note.

Applying this rule and the Cercone decision interpreting it, the Superior Court in Dietzel, on appeal from an order granting summary judgment in foreclosure, stated:

With regard to the first issue raised by [AJppellants, we find that the trial court did not err in granting summary judgment as to all issues raised in [Ajppellee’s motion. It is clear that the court was correct in granting summary judgment as to the liability issue. Appellants, in their answer to [Ajppellee’s complaint, admitted that they were behind in their mortgage payments. Likewise, [Appellants’ general denial that they “are without information sufficient to form a belief as to the truth of’ [Appellee’s averment as to the principal and interest due is to be considered an admission of those facts. See Pa.R.C.P. 1029(c); Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978). Unquestionably, apart from [Appellee, [Appellants are the only parties who would have sufficient knowledge on which to base a specific denial.

362 Pa. Super, at 429, 524 A.2d at 952.

In Strausser, the Superior Court followed Dietzel in holding an answer’s general denials of the allegations of a complaint in mortgage foreclosure likewise, under the Rules of Civil Procedure, constituted admissions of those allegations, warranting the trial court’s grant of summary judgment in foreclosure. The Strausser court stated,

In First Wisconsin’s mortgage foreclosure action against Strausser, the trial court held that there was no genuine issue as to any material fact and that First Wisconsin was entitled to judgment as a matter of law. In reaching this conclusion, the trial court found that Strausser’s responsive pleading was deficient under Pa.R.C.P. 1029....
The trial court found that Strausser’s answers to the allegations in First Wisconsin’s [cpmplaint amounted to nothing more than general denials and demands for proof under Pa.R.C.P. 1029(c). As such, the purported denials are deemed admissions pursuant to the provisions of 1029(b) and [Cercone]. After a review of the record, we agree.
For example, First Wisconsin alleged in paragraph six of its complaint that the total amount due on the mortgage was $349,829.96. Strausser simply denied this as a conclusion of law. This court has held, however, that, in mortgage foreclosure actions, general denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts. [Dietzel, 362 Pa. Super, at 429, 524 A.2d at 952]. Our rationale in Dietzel is applicable to the present case. In Dietzel we stated, “[unquestionably, apart from appellee, appellants are the only parties who would have sufficient knowledge on which to base a specific denial.” Id. at 429, 524 A.2d at 952. Further support for this approach is found in the note to subsection (c) of Rule 1029 which provides that “reliance upon subsection (c) does not excuse a failure to deny or admit factual allegations when it is clear that the pleader must know if the allegations are true or not.” We agree with the trial court that this particular denial by Strausser, as well as her remaining general denials to First Wisconsin’s complaint, essentially constituted admissions.

Strausser 439 Pa. Super, a 199-200, 653 A.2d at 691-92 (citation omitted) (quoting City of Phila. v. Hertler, 114 Pa.Commw. 475, 482, 539 A.2d 468, 472 (1988)). The Strausser court addressed the arguments of another mortgagor who had also suffered summary judgment in the court below in similar fashion:

Perlberger contends that the trial court erred when it found that his responsive pleading to First Wisconsin’s [cjomplaint was deficient under Pa.R.C.P. 1029. After a review of the record, we agree with the trial court that Perlberger’s responses amounted to nothing more than general denials which are considered admissions under Pa.R.C.P. 1029(b), the note to Rule 1029(c), and [Cercone].
In addition, Perlberger, in his answer to appellee’s [cjomplaint, admitted that he was delinquent in the mortgage payments. Paragraph six of the [cjomplaint alleges that the total amount due on the mortgage is $349,829.96. Perlberger’s response provides:
6. Admitted in part, denied in part. While the Note requires said payment, answering defendant has been unable to perform his obligations because of the actions of [StrausserJ, and the bad[-J faith actions taken by additional defendant....
Summary judgment is properly granted in mortgage[-J foreclosure actions where the mortgagor admits that he is delinquent in mortgage payments. Dietzel, 362 Pa. Super, at 429, 524 A.2d at 952. Perlberger’s response clearly reveals that he is delinquent in mortgage payments and that the total amount due on the mortgage is $349,829.96. Therefore, the trial court did not err in granting summary judgment against Perlberger.

Strausser, 439 Pa. Super, at 204, 653 A.2d at 694; accord Bank of Am. v. Gibson, 102 A.3d 462, 466-67 (Pa. Super. Ct. 2014) (“Appellant responded with general denials to the material portions of Bank of America’s complaint. General denials constitute admissions where — like here — specific denials are required. Furthermore, ‘in mortgage foreclosure actions, general denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing [on the mortgage] must be considered an admission of those facts.’ By his ineffective denials and improper claims of lack of knowledge, appellant admitted the material allegations of the complaint, which permitted the trial court to enter summary judgment on those admissions.” (citations omitted) (quoting Strausser, 439 Pa. Super, at 199, 653 A.2d at 692)).

Plaintiff, in its motion for summary judgment and supporting brief, argued that defendant’s general denials of default on the mortgage and the amounts due thereunder constituted admissions of those allegations under Cercone, Dietzel, Hertler, and Strausser, among other authorities. (Mot. Summ. J. paras. 12-13; Pl.’s Br. Supp. Mot. Summ. J. pt. IV. A.) The motion also supported the complaint’s allegations by incorporating an affidavit of an assistant vice president of plaintiff attesting to the facts that defendant had been in default on the mortgage since February 1,2010, and an itemized breakdown of the amounts due and owing (Mot. Summ. J. para. 6 & Ex. B) as well as defendant’s loan history (Mot. Summ. J. para. 7 & Ex. C). These documents also revealed that defendant’s last payment on the mortgage had been applied in June 2010 to the delinquent January 2010 payment, and provided an itemized breakdown of how that last payment had been allocated to principal, interest, and escrow. (Mot. Summ. J. para. 8 & n. 1.)

In his response to the motion for summary judgment, rather than carry his burden to adduce “evidence in the record controverting the evidence cited in support of the motion,” Pa.R.C.P. 1035.3(a)(1), or “evidence in the record establishing the facts essential to the [defense that] the motion cites as not having been produced,” Pa.R.C.P. 1035.3(a)(2), defendant offered mere boilerplate to counter the motion’s arguments that defendant’s general denials of default and amounts due on the mortgage constituted uncontroverted admissions of those facts, stating only “[d]enied[;] defendant’s answer and new matter specifically denied allegations of default” (Ans. Mot. Summ. J. para. 12) and “[d]enied as a conclusion of law to which no response is required” (Ans. Mot. Summ. J. para. 13).

Confronted with a motion for summary judgment setting forth evidence establishing the moving party’s right to relief, “the adverse party may not rest upon the mere allegations or denials of the pleadings,” Pa.R.C.P. 1035.3(a), but must identify evidence controverting the evidence cited in support of the motion or establishing the facts essential to the defense that the motion cites as not having been produced, Pa.R.C.P. 1035.3(a)(l)-(2). “[Pjarties seeking to avoid the entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, answers to interrogatories, admissions[,j or affidavits, that there is a genuine issue for trial.” Wash. Fed. Sav. & Loan Ass ’n v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986) (affirming summary judgment in mortgage foreclosure). As defendant’s response to the motion for summary judgment failed to adduce such evidence on the questions of default on the mortgage and the amounts due thereunder, and the general denials of his pleadings constituted judicial admissions of those facts under Strausser, Dietzel, and the other authorities we have cited, this court properly found no genuine issue of material fact as to these questions and entered summary judgment against him.

In attempting to manufacture belatedly on appeal a genuine issue of material fact as to whether the mortgage was in default, defendant’s statement of matters complained of on appeal states,

Defendant denied being in default of his mortgage loan in his answer to the complaint. Plaintiff argued in its motion for summary judgment that defendant’s denials were general and thus deemed admissions. Defendant assumes the court agreed with [plaintiff’s] arguments in granting the motion. Defendant respectfully maintains that this ruling was in error and that his answers should not have been deemed an admission that he was in default, since his denial of being in default was based on his lacking information on how [plaintiff] was applying mortgage payments he had made.

(Errors Complained para. 1.)

This claim advanced in defendant’s statement of matters complained of on appeal improves only negligibly, if at all, upon the boilerplate in defendant’s answer to the complaint that this court properly deemed general denials, and hence admissions, under Pa.R.C.P. 1029, Strausser, and Dietzel, by adding the assertion defendant was “lacking information on how plaintiff was applying mortgage payments he had made.” This assertion does not save the denial of default on the mortgage set forth in paragraph 5 of defendant’s answer to the complaint from being deemed a general denial of the complaint’s specific allegation of default and hence an admission of that fact under Pa.R.C.P. 1029(b) (“A general denial or a demand for proof, except as provided by subdivision (c)... of this rule, shall have the effect of an admission”). Subdivision (c) of the rule provides an exception to subdivision (b)’s prescription that a general denial is deemed an admission only under the following circumstances: “A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.” Pa.R.C.P. 1029(c) (emphasis added). Defendant did not assert in paragraph 5 of the answer to paragraph 5 of the complaint that after “reasonable investigation” he was still in the dark about whether he was in default due to “lacking information on how plaintiff was applying mortgage payments he had made.”

Moreover, even had paragraph 5 of defendant’s answer pled the requisite “reasonable investigation” (which it did not) the purported “[lack of] information on how plaintiff was applying mortgage payments he had made” still would have had nothing to do with whether, as the corresponding paragraph of the complaint alleged, “The mortgage is in default because monthly payments of principal and interest upon said mortgage due 02/01/2010 and each month thereafter are due and unpaid . . . .” (Compl. para. 5.) How plaintiff may have applied previous mortgage payments defendant had made was irrelevant to whether he was in default on the mortgage for failing to make payments for any months since February 1, 2010, and his answer’s general denial of the complaint’s specific allegation of that fact admitted it. Defendant has still not to this day specifically denied plaintiff’s assertion, supported in the motion for summary judgment with the affidavit of plaintiff’s officer and defendant’s loan history, that defendant had not made payments on the mortgage for any months after January 2010. This court properly found that defendant had failed to show any genuine issue of material fact as to whether he was in default on the mortgage, and defendant’s claim to the contrary in his statement of matters complained of on appeal that this court erred in granting summary judgment because there was a genuine issue of material fact as to whether the loan was in default is frivolous.

The second issue raised in defendant’s statement of matters complained of on appeal claims that the order granting summary judgment was in error because defendant denied that his mortgage had been properly assigned to plaintiff, plaintiff had not yet proven a valid assignment at the time summary judgment was granted, and thus there was a genuine issue of material fact as to plaintiff’s “standing to sue.” (Errors Complained para. 2.) This issue too is frivolous; it is also waived.

In paragraph 3 of the complaint, plaintiff specifically pled the parties to and date of the original mortgage, as well as its assignment to plaintiff, and cited the specific place of recordation of both the mortgage and the assignment in the Office of the Recorder of Montgomery County. Plaintiff’s pleading fully complied with the Pennsylvania Rules of Civil Procedure, which provide that, in an action to foreclose upon a mortgage, “The plaintiff shall set forth in the complaint: (1) the parties to and the date of the mortgage, and of any assignments, and a statement of the place of record of the mortgage and assignments . . .” Pa.R.C.P. 1147(a)(1). Moreover, and consequently, as the complaint itself properly pointed out, “The mortgage and assignment(s) ... are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves [plaintiff] from its obligations to attach documents to pleadings if those documents are of public record.” (Comp, para. 3.) The complaint thus supplied its own unassailable interpretation of the rule it invoked, which provides, in pertinent part,

A party may incorporate by reference [in a pleading] any matter of record in any State or Federal court of record whose records are within the county in which the action is pending, or any matter which is recorded or transcribed verbatim in the office of the prothonotary, clerk of any court of record, recorder of deeds [,] or register of wills of such county.

Pa.R.C.P. 1019(g); cf. US Bank v. Mallory, 982 A.2d 986, 992-94 (Pa. Super. Ct. 2009) (Stevens, J.) (holding Pa.R.C.P. 1019 and Pa.R.C.P. 1147 did not require that a pre-formalized assignment of a mortgage be recorded or attached to the complaint and assignee did not have to have recorded assignment to have standing to seek enforcement of mortgage in foreclosure action).

In response to the specific pleading in paragraph 3 of the complaint of plaintiff’s status as assignee of the mortgage, and of the place where the assignment was officially recorded, defendant’s answer pled nothing but the following boilerplate: “Denied. The allegations contained in this paragraph characterize the contents of written documents and no further response is required. The written documents are the best evidence of the contents thereof and speak for themselves.” (Ans. para. 3.) Thus, unless the written documents referred to recorded in the office of the recorder (and later attached to the motion for summary judgment) do not establish plaintiff as the beneficiary of an assignment of the mortgage — an argument not made in this court — the pleadings themselves create no genuine issue of material fact for trial about whether plaintiff had standing as assignee of the mortgage to seek its enforcement in an action in foreclosure.

Plaintiff’smotionforsummaryjudgmentanddefendant’s response thereto did nothing to create a genuine issue of material fact on this issue where none had existed before. Plaintiff’s motion repeated the complaint’s valid pleading that plaintiff was an assignee of the mortgage by virtue of an assignment recorded in the Montgomery County Office of the Recorder (Mot. Summ. J. paras. 3-4) and went a step further by attaching the recorded assignment as an exhibit (Mot. Summ. J. Ex. A2). The motion added only the fact that since the filing of the complaint plaintiff had recorded a corrective assignment, which was also attached to the motion (Mot. Summ. J. para. 5 & Ex. A3). In response to these statements of fact in the motion, defendant’s answer to the motion simply repeated the same tired lines he had offered up in his answer to the complaint, “denying” the allegations as to the recorded mortgage and assignments on the grounds the written documents were the “best evidence” of their contents and “speak for themselves.” (Ans. Mot. Summ. J. paras. 3-5.)

Moreover, in his brief in response to the motion, filed under the mandate of our local rule, Montg. Co. R.C.P. 1035.2(a), as specifically authorized by the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 239.7(2)(iii), defendant failed to argue that plaintiff’s lack of “standing to sue” or failure to “prove[] [a] valid assignment” was a genuine issue of material fact precluding summary judgment. The entire argument in his brief in opposition to summary judgment as to the genuine issues of material fact that allegedly made summary judgment improper was as follows: “In the case sub judice, defendant, Rafeeq Ahmed, specifically denied the itemization of default and denied receipt of the notice of intention to foreclose and/ or notice of default. Therefore, genuine issues of material facts exist concerning the default of the mortgage and statutory notice of foreclosure.” (Mem. Law Opp’n Mot. Summ. J. 2.)

“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). In particular, “[Arguments not raised initially before the trial court in opposition to summary judgment cannot be raised for the first time on appeal.” Rohrer v. Pope, 918 A.2d 122,128 (Pa. Super. Ct. 2007) (Gantman, J.) (quoting Devine v. Hutt, 863 A.2d 1160, 1169 (Pa. Super. Ct. 2004) (alternative holding) (finding argument not raised in brief in opposition to summary judgment waived on appeal)); cf., e.g., Bombar v. W. Am. Ins. Co., 932 A.2d 78, 91-92 (Pa. Super. Ct. 2007) (Stevens, J.) (finding issue waived under Pa.R.A.P. 302(a) where it was not raised in a pretrial memorandum and appellant cited to no other places in the record where issue was preserved). The Superior Court thoroughly reviewed the rationale for this rule of waiver in Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1104-05 (Pa.Super.Ct. 2000) (citations omitted) (quoting Dollar Bank v. Swartz, 540 Pa. 369, 375, 657 A.2d 1242, 1245 (1995)), quoted in Devine, 863 A.2d at 1169 (Gantman, J.):

Our Supreme Court has admonished that “[a]n appellate court does not sit to review questions that were neither raised, tried, nor considered by the trial court.” Although ... the Superior Court has in the past made exceptions to this general rule in appeals from summary judgment, the basis upon which we made such exceptions appears to have been negated by our Supreme Court’s amendment of the summary judgment rules in 1996....
... In cases preceding the promulgation of Rules 1035.2 and 1035.3, we allowed presentation of arguments for the first time on appeal where the non-moving party had failed to file a response to the motion for summary judgment and the trial court granted the undefended motion without conducting an independent review of the record....
... By contrast, under Rule 1035.2 and its corollary, Rule 1035.3, the non-moving party bears a clear duty to respond to a motion for summary judgment. See Pa.R.C.R 1035.3(a)(1), (2) (requiring non-moving party to file a response “within thirty days after service of the motion identifying . . . one or more issues of fact arising from evidence in the record controverting the evidence cited [by the movant] in support of the motion or . . . evidence in the record establishing the facts essential to the cause of action [or defense]”). If the non-moving party does not respond, the trial court may grant summary judgment on that basis. . . . Accordingly, the trial court’s failure to scour the record for every conceivable ground on which to deny summary judgment cannot serve as a basis for appellate review. See Pa.R.C.P. 1035.3(d). Because, under Rule 1035.3, the non-moving party must respond to a motion for summary judgment, he or she bears the same responsibility as in any proceeding, to raise all defenses or grounds for relief at the first opportunity. A party who fails to raise such defenses or grounds for relief may not assert that the trial court erred in failing to address them. . . . The Superior Court, as an error-correcting court, may not purport to reverse a trial court’s order where the only basis for a finding of error is a claim that the responsible party never gave the trial court an opportunity to consider....
. . . More recently, we have reaffirmed the proposition that a non-moving party’s failure to raise grounds for relief in the trial court as a basis upon which to deny summary judgment waives those grounds on appeal. Our application of the summary judgment rules in [Payton v. Pennsylvania Sling Co., 710 A.2d 1221, 1226 (Pa. Super. Ct. 1998),] establishes the critical importance to the non-moving party of the defense to summary judgment he or she chooses to advance. A decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not. This proposition is consistent with our Supreme Court’s efforts to promote finality, and effectuates the clear mandate of our appellate rules requiring presentation of all grounds for relief to the trial court as a predicate for appellate review. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).

Accord, e.g., Walsh v. Borczon. 881 A.2d 1, 4-6 (Pa. Super. Ct. 2005); see also, e.g., State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super. Ct. 2015) (en banc) (“On appeal, we will not consider assignments of error that were not brought to the tribunal’s attention at a time at which the error could have been corrected or the alleged prejudice could have been mitigated.”), petition for allowance of appeal filed, No. 69 EAL 2015 (Pa. Feb. 11, 2015).

The proposition is also well settled that a party may not raise for the first time an argument not previously made to a lower court by inserting the issue into a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). “A party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order.” Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 444 (Pa. Super. Ct. 2003) (holding under Pa.R.A.P. 302(a) issue not raised until after summary judgment was granted and then only in a statement of matters complained of on appeal was waived for purposes of appeal), aff’d per curiam, 584 Pa. 129, 870 A.2d 318 (2005).

A Rule 1925(b) statement of matters complained of on appeal is not a vehicle in which issues not previously asserted may be raised for the first time. It is, instead, the vehicle by which an appellant advises the trial court of the previously preserved issues that the appellant will advance on appeal so that the trial court may determine if it needs to write an opinion and to direct the trial court to the issues for which an opinion is needed.

Id. (emphasis added); accord Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287-89 (Pa. Super. Ct. 2004) (en banc) (unanimous opinion) (holding defendant who fails to object timely and specifically before trial court cannot preserve the issue for appellate review by including the issue in a concise statement of matters complained of on appeal), followed in Commonwealth v. Tejada, 107 A.3d 788 (Pa. Super. Ct. 2015).

There was no genuine issue of material fact for trial as to whether plaintiff had standing to sue in foreclosure as the assignee of the mortgage; plaintiff satisfactorily proved the assignment under the Rules of Civil Procedure, and defendant failed to carry his burden under Pa.R.C.P. 1035.3 to rebut the evidence of the assignment. Moreover, because defendant never asked this lower court to find (until new counsel filed the Pa.R.A.P. 1925(b) statement) that whether plaintiff had proven a valid assignment was a genuine issue of material fact for trial, he waived that issue, and it cannot provide grounds for relief on appeal.

The third issue raised in the Pa.R.A.P. 1925(b) statement is as follows:

Defendant denied plaintiff’s assertion in its motion for summary judgment that he had failed to comply with the requirements of the Homeowner’s Emergency Mortgage Assistance Program (HEMA), and said denial should have been sufficient to establish a genuine issue of a material fact as to whether or not the action was stayed. Defendant respectfully maintains that the court erred in awarding [sjummary [jjudgment while this issue of material fact was in dispute.

(Errors Complained para. 3.) The motion for summary judgment and response filed in this lower court belie this claim as well.

The motion asserted, “The [tjemporary [sjtay as provided by the Homeowner’s Emergency Mortgage Assistance Program, [Act 91 of 1983, 35 P.S. § 1680.403(a), (e),] has terminated because [defendant] has failed to meet with an authorized credit-counseling agency in accordance with Plaintiff’s written notice to him.” (Mot. Summ. J. para. 10.) Plaintiff’s supporting brief set forth and analyzed the statutory authority for the legal consequences attendant upon this factual assertion. (Pl.’s Br. Supp. Mot. Summ. J. pt. D.)

Defendant’s response to the motion, in his typical rote, replied simply, “Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment of this paragraph and demands proof thereof.” (Ans. Mot. Summ. J. para. 10.) Defendant’s brief in support of his response to the motion for summary judgment, as quoted above in our discussion of the second issue raised on appeal, made no mention of the temporary stay of the Homeowner’s Emergency Mortgage Assistance Program as creating a genuine issue of material fact precluding summary judgment.

We respectfully suggest to the honorable Superior Court that defendant’s belated reference in his Pa.R.A.P. 1925(b) statement to the temporary stay of the HEM A program is but one more red herring thrown up after the fact of this lower court’s order granting summary judgment in foreclosure to delay further the consequences of his undeniably defaulting on his mortgage loan. By failing to argue in his brief before this lower court that there was any issue of fact about whether such a stay was in effect or precluded summary judgment, defendant, under the holding of Judge (now President Judge) Gantman in the Devine case and the cases cited in her opinion, has waived any claim that the temporary stay of the HEMA program somehow constituted a genuine issue of material fact rendering our award of summary judgment premature or erroneous. Accord, e.g., Bombar, 932 A.2d at 92-93 (affirming summary judgment); see also, e.g., In re Estate of Whitley, 50 A.3d 203, 209-10 (Pa. Super. Ct. 2012) (Gantman, J.) (“’This court will not consider the merits of an argument which fails to cite relevant case or statutory authority.’ Failure to cite relevant legal authority constitutes waiver of the claim on appeal.” (citation omitted) (quoting Iron Age Corp. v. Dvorak, 880 A.2d 657, 665 (Pa. Super. Ct. 2005))).

Fourthly and finally, defendant claims that the amount of damages awarded in our order granting summary judgment ($177,360.36 plus interest and costs) was improper because the amount of such damages was a material fact in dispute despite the in rem nature of the proceedings in mortgage foreclosure. (Errors Complained para. 4.) Our discussion of the first issue — whether there was a genuine issue of material fact about defendant’s being in default on the mortgage — serves to dispose of this issue as well. Defendant’s denial of the itemized amounts plaintiff’s complaint claimed to be due and owing on the mortgage (Compl. para. 6) was nothing but a general denial (Ans. para. 6) that, under Gibson, Strausser, Dietzel, and Pa.R.C.P. 1029(b), (c) & note, constituted a judicial admission that the amount claimed to be due was correct. Defendant was no more specific in denying the amounts claimed due in his answer to the motion for summary judgment (Ans. Mot. Summ. J. paras. 1,13) and thus also effectively admitted the amount of damages sought in the motion as set forth in plaintiff’s proposed order and attached affidavit of plaintiff’s officer (Mot. Summ. J. Ex. B) (the amount our order awarded), which had been revised and updated to reflect additional interest and charges that had accumulated in the two-plus years between the filing of the complaint and the filing of the motion for summary judgment.

Moreover, as our Pennsylvania Supreme Court explained in Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971) (unanimous opinion), which we cited in our order granting summary judgment, even where mortgagors never admit in their pleadings the amount of indebtedness in a mortgage-foreclosure action, there is no genuine issue as to damages and summary judgment for a sum certain is proper where it is admitted that the mortgage was in default, that the mortgagors had failed to pay their interest on the obligations since a specified date, and that the recorded mortgage was in a specified amount. 445 Pa. at 225-26, 282 A.2d at 340. “The debt owed on the mortgage changed and can be expected to change from day to day .... Judgment in a mortgage^] foreclosure action must be entered for a sum certain or no execution could ever issue on it.” Id., followed in Cunningham, 714 A.2d at 1057 (affirming summary judgment in mortgage foreclosure).

The four issues raised in the mortgagor’s statement of matters complained of on appeal to contest our grant of plaintiff’s motion for summary judgment in mortgage foreclosure provide no valid arguments for overturning the summary judgment, and/or are waived for purposes of appeal. We respectfully suggest the honorable Superior Court should affirm our order entering summary judgment.


author: MINORA, J.,

text:
    Scranton Cultural Center at Masonic Temple v. Philadelphia Indemnity Insurance Co.

      C.P. of Lackawanna County,
    No. 2012-CV-4490

      Paul R. Walker and Matthew Clayberger, for plaintiffs.

      Edward J. Stolarski, Jr. and Daniel L. Petrilli, for defendants.
    April 13, 2015
   MINORA, J.,

INTRODUCTION

Before the court is defendant Philadelphia Indemnity Insurance Company’s (hereinafter “defendant”) de novo appeal of Special Trial Master (STM) for discovery, attorney Henry P. Burke’s order dated November 24, 2014. STM Burke entered an order denying defendant’s motion to compel plaintiffs Scranton Cultural Center at the Masonic Temple and OneBeacon America Insurance Company (hereinafter “plaintiffs”) to produce certain documents withheld as privileged. In that order, STM Burke refused to compel plaintiff to produce various documents that were designated on its privilege log. For the reasons that follow, defendant Philadelphia’s de novo appeal of the STM’s order is denied.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises out of a request for declaratory relief and contractual indemnity claim of plaintiffs against defendant as insurer for non-party the Jewish Community Center (hereinafter “JCC”). On August 25, 2009, plaintiff Scranton Cultural Center and the JCC entered into contract that permitted the JCC to hold its 100th anniversary celebration at plaintiff Scranton Cultural Center’s Masonic Temple as a licensee. For the event, the JCC hired S&B Catering for catering purposes. Prior to the event, an employee of S&B Catering, Patrick Barrett, fell down an elevator shaft at the Masonic Temple. Mr. Barrett filed a Civil Action Complaint asserting negligence claims against plaintiff Scranton Cultural Center and an employee seeking compensatory damages for alleged personal injuries.

On July 24, 2012, plaintiffs commenced the current action via complaint asserting claims against defendant for breach of contract and bad faith. Plaintiffs also requested a declaratory judgment that defendant owes them indemnification and/or coverage under the terms of a commercial general liability insurance policy issued to the JCC. On October 9, 2013, plaintiffs filed an amended complaint in the matter.

On December 26, 2013, plaintiffs filed a motion to compel defendant’s response to plaintiffs’ request for production of documents. STM Burke entered an order granting plaintiffs motion to compel, requiring defendant to provide a response within twenty-one (21) days of the date of the order. On January 30, 2014, defendant filed a motion to strike plaintiffs’ amended complaint for failure to join an indispensable party and for lack of subject matter jurisdiction. On March 25, 2014, the Honorable Richard Saxton, S.J. entered an order denying said motion.

On May 14,2014, defendant filed a motion for leave to file an amended answer with new matter and counterclaim, and the Honorable Judge Robert Mazzoni entered a rule to show cause upon all parties. On June 26, 2014, the Honorable Judge Richard Saxton, S.J. entered an order denying defendant’s motion to amend.

During the course of discovery, defendant served interrogatories and request for production of documents upon plaintiffs. The plaintiffs objected to certain categories of the documents, asserting attomey/client privilege, documents prepared in anticipation of litigation by or for plaintiff OneBeacon Insurance, and documents that purportedly contained the mental impressions, conclusions and/or opinions or legal theories of an attorney or other representative with respect to the value or merit of a claim or defense.

On November 24, 2014, STM Burke entered an order denying defendant’s motion to compel plaintiff to produce certain documents withheld as privileged. On December 2, 2014, defendant Philadelphia filed the current de novo appeal of the November 24,2014 order of STM Burke. On January 6,2015, plaintiffs filed their brief in opposition to defendant Philadelphia’s motion to compel production of documents identified as privileged by the plaintiffs.

II. LEGAL ARGUMENTS OF THE PARTIES

I. Defendant’s Argument

Defendant argues in their caption that “The documents sought in discovery are governed by subject matter waiver of the attorney-client privilege and of the plaintiffs’ Mental Impressions of the Instant Litigation.” See defendant Philadelphia Indemnity Insurance Company’s brief in support of its de novo appeal of the Special Trial Master’s Ruling, at 4. Specifically, defendant argues “[t]he documents produced by the [pjlaintiff in discovery that relate to its communication with its counsel, Gary Nau, Esq. waive any privileges asserted by [pjlaintiff as to the documents requested. Id. Defendant further argues “[ajs [pjlaintiff has disclosed its attorney-client communications relative to the propriety and viability of this instant lawsuit and has also disclosed its mental impressions regarding the same, [pjlaintiff OneBeacon Insurance should be required to produce those documents that it has withheld and has asserted a privilege. Id.

II. Plaintiffs’ Argument

Plaintiffs first argue that defendant’s motion to compel should be denied because the appeal from STM Burke’s order was untimely as defendant did not appeal STM Burke’s decision until fourteen (14) days after the entry of the order. See plaintiffs’ brief in opposition to defendant Philadelphia Indemnity Insurance Company’s motion to compel production of documents identified as privileged by plaintiff, at 4. Next, plaintiffs argue that the documents that defendant relies on in support of its motion to compel constitute, at most, inadvertent disclosures. Id., at 6. In their third argument, plaintiffs contend that the OneBeacon Case conference form that contains a hearsay statement regarding the purported opinion of attorney Gary Nau does not waive the attomey/client privilege because the document is not covered by the privilege and, even if the document were privileged, its inadvertent disclosure does not waive the privilege under the circumstances of this case. Id., at 8. Next, plaintiffs argue that the inadvertent production of the email between two OneBeacon claim adjusters does not waive any privilege, to the extent that such communication is even privileged in the first place. Id., at 13. Lastly, plaintiffs argue that the email from Erin Verdi to a member of the OneBeacon underwriting team does not waive any protection with respect to the underwriting file of OneBeacon in this matter. Id., at 14.

DISCUSSION

Lacka.Co.R.C.P. 4000.1 provides in relevant part:

(b) An order of the Special Trial Master may be appealed de novo by presentation of an appeal motion to the designated motions court judge in accordance with Lacka.Co.R.C.P. 206.4(c), together with proof of payment to the clerk of judicial records of an appeal cost in an amount to be set by the court from time to time. The appeal motion shall be filed within ten days of the order of the Special Trial Master and shall be considered by the court pursuant to Lacka. Co. R.C.P. 4000.

See Lacka.Co.R.C.P. 4000.1(b). Timeliness of an appeal is a jurisdictional question, regardless of whether it is an appeal to an appellate court or a de novo appeal in common pleas court. Lee v. Guerin, 735 A.2d 1280, 1281 (Pa. Super. 1999). “Where a statute fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence or grace.” Id.

STM Burke issued the order denying defendants’ motion to compel to produce certain documents on November 24, 2014. See stipulation of counsel, at 1. Defendants filed with the court its de novo appeal on December 2, 2014, eight (8) days after STM Burke’s order. Id. Lacka. Co.R.C.P. 4000.1(b) requires a party’s appeal motion to be filed within ten (10) days of the STM’s order. In their brief, plaintiffs argue “[defendant] presented its appeal of discovery master Burke’s order to this honorable court on December 8, 2014, fourteen [(14)] days after the date of the order.” See plaintiffs’ brief in opposition to defendant Philadelphia Indemnity Insurance Company’s motion to compel production of documents identified as privileged by plaintiff, at 5. However, the record reflects that defendant filed the current de novo appeal on December 2, 2014, eight (8) days after STM Burke issued his order. Under Lacka.Co.R.C.P. 4000.1(b), defendant’s appeal is timely and plaintiffs’ argument must fail because it was filed within ten (10) days of STM Burke’s order denying defendant’s motion to compel to produce certain documents.

Defendants next argue that the documents sought in discovery are governed by subject matter waiver of the attorney-client privilege and of the plaintiffs’ mental impressions of the instant litigation. See defendant Philadelphia Indemnity Insurance Company’s brief in support of its de novo appeal of the Special Trial Master’s ruling regarding defendant’s motion to compel production of documents identified as privileged by plaintiff, at 5. Specifically, defendant argues that “[t]he documents produced by the [p]laintiff in discovery that relate to its communication with its counsel, Gary Nau, Esq. waive any privileges asserted by [p]laintiff as to the documents requested.” Id. Pa.R.C.P. 4003.1 provides that “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Pa.R.C.P. 4000.1(a).

“Whether attorney-client privilege protects a particular communication from disclosure is a question of law.” Nationwide Mutual Insurance Company v. Fleming, 924 A.2d 1259, 1263 (Pa. Super. 2007), citing In re Estate of Wood, 818 A.2d 568, 571 (Pa. Super. 2003). “In Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attomey or attomey-to-client communications made for the purpose of obtaining or providing professional legal advice.” Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 (Pa. Super. 2012); Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011). Our judicial code states the following regarding the application of the attorney client privilege: “[i]n a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” 42 Pa.C.S.A. § 5928. Four elements must be satisfied in order to successfully invoke the protections of attorney-client privilege:

1) The asserted holder of the privilege is or sought to become a client.
2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.

Nationwide, 924 A.2d at 1264, quoting Commonwealth v. Mzroek, 657 A.2d 997, 998 (Pa. Super. 1995); Custom Designs, 39 A.3d at 376. Therefore, “attorney-client privilege protects from disclosure only those communications made by a client to his or her attorney which are confidential and made in connection with the providing of legal services or advice.” Nationwide, 924 A.2d at 1264 (emphasis added).

Pursuant to 42 Pa.C.S.A. § 5928, counsel cannot testify as to confidential communications unless the client has waived the privilege. Id. There are multiple ways that a client can waive the protection afforded by attorney-client privilege. For purposes of our case, we are going to focus on subject matter waiver of the attorney client privilege. Subject matter waiver refers to the “voluntary disclosure of a communication protected by attorney-client privilege [that] result[s] in waiver of the privilege for all communications pertaining to the same subject matter.” Id., at 1265. “Subject matter waiver of attorney-client privilege is based on considerations of fairness, which preclude a party from disclosing only those privileged materials that support its position, while simultaneously concealing as privileged those materials that are unfavorable to its position.” Id., citing Katz v. AT & T Corp., 191 F.R.D. 433, 439 (E.D. Pa. 2000).

A two-part inquiry is used to resolve disputes over the disclosure of communications for which attorney-client privilege has been asserted. Nationwide, 924 A.2d at 1265. “The first part of the inquiry is whether the attorney-client privilege does indeed apply to a particular communication.” Id. If the court determines that the attorney-client privilege does apply, the court must then “engage in the second part of the inquiry: whether an exception or waiver applies, thereby overcoming the privilege and permitting disclosure.” Id., at 1265-1266.

In the present case, defendant alleges that plaintiffs’ disclosure ofthe Case Conference Sheet/Major Injury Form waives the attorney-client privilege because the document shows that “in-house counsel for [plaintiff] OneBeacon did not believe that the contract [between] the parties at issue would require the [JCC] to indemnify [plaintiff Scranton Cultural Center] for the settlement entered into on behalf of Mr. Barrett.” See defendant Philadelphia Indemnity Insurance Company’s brief in support of its de novo appeal of the Special Trial Master’s Ruling, at 5. Plaintiffs contend that the case conference sheet is not a communication between an attorney and client relating to the provision of legal services, and therefore the document is not a privileged communication and the disclosure of the document cannot waive the attorney-client privilege. See plaintiffs’ brief in opposition to defendant Philadelphia Indemnity Insurance Company’s motion to compel, at 9. After a careful analysis of the case conference sheet/major injury form, we agree with plaintiffs’ contention, for the reasons set forth below.

The case conference sheet is an intra-office memorandum prepared by an unknown employee of plaintiff OneBeacon detailing the description of the loss and liability in the underlying claim. See defendant Philadelphia Indemnity Insurance Company’s brief in support of its de novo appeal of the Special Trial Master’s ruling, at Exhibit B. Defendant relies on two sentences contained in the case conference sheet to support its argument that plaintiffs waived their attorney-client privilege. These sentences state: “defense counsel Gary Nau reviewed the agreement and he advised that the licensed areas were the ballroom and stage and not the elevators. He felt that a tender might not be successful but that it was worth a try and that we might want to consider a dec action if not accepted.” Id. The remainder of the document outlines the policy information and description of the events involved in the insurance claim. Applying the analysis contained in Nationwide, there is no indication that the information contained in the case conference sheet was a communication between client plaintiff OneBeacon and former attorney Gary Nau for the purpose of providing legal services or advice because the author of the document is an unknown employee of plaintiff OneBeacon and not former attorney Gary Nau. Nationwide, 924 A.2d at 1264. Therefore, we accept plaintiffs’ argument and conclude that the case conference sheet/major injury form does not satisfy the requirements for protection under attorney-client privilege. For that reason, we must further conclude that, since this document is not privileged, it cannot form the basis for subject matter waiver of the attorney-client privilege. Id., at 1268.

Furthermore, in the interest of thoroughness, even if the case conference sheet/major injury form were found to be privileged, plaintiffs’ inadvertent disclosure of the document would not waive the attorney-client privilege. There is a five (5) factor balancing test to be considered to determine whether an inadvertent disclosure amounts to waiver of the attorney-client privilege:

(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its errors.

Carbis Walker, LLP v. Hill, Barth and King, LLC, 930 A.2d 573, 582 (Pa. Super. 2007), quoting Fidelity & Deposit Co. v. McCulloch, 168 F.R.D. 516, 522 (E.D. Pa 1996).

Applying the Carbis Walker factors to this case, the inadvertent disclosure of the case conference sheet/ major injury form would not waive plaintiffs’ attorney-client privilege even if the document was privileged. First, with respect to the first prong of the test, in their brief plaintiffs indicate that they “conducted a thorough review of ... over three-thousand pages of documents” and “[a]s part of that thorough review, plaintiffs redacted information to guard against inadvertent disclosure.” See plaintiffs’ brief in opposition to defendant Philadelphia Indemnity Insurance Company’s motion to compel, at 10-11. Plaintiffs also prepared an extensive privilege log for the purpose of safeguarding against privileged documents being disclosed. Id., at 11; See also defendant Philadelphia Indemnity Insurance Company’s brief in support of its de novo appeal of the Special Trial Master’s ruling, at Exhibit A. Second, with respect to the second and third prongs, defendant is relying on two sentences in the case conference sheet to support its argument that there was a waiver of the attorney-client privilege. In their brief, plaintiffs indicate that they produced over three-thousand pages of documents. See plaintiffs’ brief in opposition to defendant Philadelphia Indemnity Insurance Company’s motion to compel, at 11. Given this information, one document containing two sentences would amount to a very minor inadvertent disclosure. These facts clearly weigh in plaintiffs’ favor.

The fourth factor is any delay and measures taken to rectify the disclosure. Carbis Walker, 930 A.2d at 582. Plaintiffs sent a letter to defense counsel less than forty-eight (48) hours after receiving notice of the alleged disclosure. See plaintiffs’ brief in opposition to defendant Philadelphia Indemnity Insurance Company’s motion to compel, at 11, Exhibit A. In this letter, plaintiffs’ counsel stated “[hjaving received notice of the inadvertent disclosure...we are respectfully requesting that you return this document as soon as possible.” Id., at Exhibit A. Plaintiffs ’ counsel further explained that once the document was returned, he would be more than happy to produce a redacted copy of the case conference sheet. Id. Lastly, with regard to the fifth and final factor, Pennsylvania courts have held that “[t]he attorney-client privilege exists to foster a confidence between attorney and client that will lead to a trusting and open dialogue.” Carbis Walker, 930 A.2d at 578; Custom Design, 39 A.3d at 376; Nationwide, 924 A.2d at 1263; Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (Pa. Super. 2003). To find that plaintiffs waived their privilege over two sentences contained in one document among over three-thousand pages of documents would not serve the interests of justice. For the reasons discussed above, we find that the Carbis Walker analysis weighs in the plaintiffs’ favor.

In its motion to compel, defendant contends that the inadvertent disclosure by plaintiffs of an e-mail between Mammon Kahn to Thomas Conlon, both plaintiff OneBeacon claim adjusters, renders the requested documents discoverable because it “contains the mental impressions of representatives of [plaintiff] OneBeacon with regard to the viability/propriety of the instant litigation.” See defendant Philadelphia Indemnity Insurance Company’s motion to compel, at 5, Exhibit C. Defendant further contends that an e-mail from Erin G. Verdi, identified as plaintiff OneBeacon’s claims examiner, renders the requested information discoverable because it “may reveal inspections of the areas which are the subject matter of the instant litigation, which may lead to the discovery of admissible evidence at trial.” Id., at 7. Defendant fails to neither cite to any legal authority in support of these arguments nor develop these arguments in its attached brief. Plaintiff argues that defendant has not proffered any legal authority to support these arguments. See plaintiffs’ brief in opposition to defendant Philadelphia Indemnity Insurance Company’s motion to compel, at 13-15. Therefore, we agree with plaintiffs and find that these unsupported legal arguments lack merit.

CONCLUSION

In sum, defendant’s contention that plaintiffs’ inadvertent disclosure of the case conference sheet/ major injury form constitutes as a subject matter waiver of plaintiffs’ attorney client privilege fails. Before determining whether there was a subject matter waiver, the document that is inadvertently disclosed must first satisfy the requirements for protection under attorney-client privilege. Here, the case conference sheet/major injury form is not a privileged communication pursuant to the analysis contained in Nationwide because it is not a communication between client plaintiff OneBeacon and fonner attorney Gary Nau for the purpose of providing legal services or advice. Nationwide, 924 A.2d at 1264. Rather, the document is an intra-office memorandum outlining the facts and circumstances of the underlying insurance claim. Therefore, the disclosure of the case conference sheet/major injury form cannot qualify as a subject matter waiver of the attorney-client privilege and defendant’s de novo appeal of STM Burke’s August 21, 2014 order is denied. An appropriate order follows.

ORDER

And now, this 13th day of April 2015, upon consideration of the motions, responsive pleadings and briefs and the able verbal and written arguments of counsel for the parties regarding defendants’ de novo appeal of the November 24, 2014 order of special trial master denying defendants’ motion to compel plaintiffs to produce certain documents withheld as privileged, it is hereby ordered and decreed that defendants’ de novo appeal of the special trial master’s discovery order of November 24,2014 is denied.

      . Gary Nau is the attorney who formerly served as in-house counsel for plaintiff OneBeacon.