J-A10009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
LSF9 MASTER PARTICIPATION : IN THE SUPERIOR COURT OF TRUST : PENNSYLVANIA
Vv. NORMAN ROSETSKY AND DIANE ROSETSKY A/K/A DIANA ROSETSKY A/K/A DIANE GOCHIN
APPEAL OF: DIANE GOCHIN : No. 471 EDA 2017
Appeal from the Judgment Entered January 18, 2017 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2013-21495
BEFORE: GANTMAN, P.J., MCLAUGHLIN, J., and RANSOM*, J. MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 21, 2018
Appellant, Diane Rosetsky a/k/a Diana Rosetsky a/k/a Diane Gochin, appeals pro se from the judgment entered in the Montgomery County Court of Common Pleas, in favor of Bayview Loan Servicing, LLC (“Bayview”), predecessor in interest to Appellee, LSF9 Master Participation Trust (“Trust”),? in this mortgage foreclosure action.2 We affirm.
In its opinion, the trial court sets forth the relevant facts and
procedurally history. Therefore, we have no need to restate them. We add
1 On September 19, 2017, Bayview filed in this Court an application to substitute Trust as plaintiff-appellee per Pa.R.C.P. 2352(a), which this Court granted on October 10, 2017.
2 Norman Rosetsky did not file a notice of appeal, and he is not a party to this appeal.
* Retired Senior Judge assigned to the Superior Court. J-A10009-18
Appellant filed an answer to the amended complaint on March 16, 2015. Bayview filed a motion for summary judgment on May 6, 2015. On May 24, 2015, Appellant filed counterclaims, to which Bayview filed preliminary objections on June 10, 2015. The court sustained Bayview’s preliminary objections and dismissed Appellant’s counterclaims with prejudice on September 17, 2015.
On January 3, 2017, the court entered summary judgment in favor of Bayview. On January 16, 2017, Appellant filed a premature pro se notice of appeal. Bayview subsequently filed a praecipe to enter judgment and assess damages, which the court entered on January 18, 2017.2 The court did not order Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises two issues for our review:
DID THE TRIAL COURT FAIL TO ESTABLISH JURISDICTION AND THE STANDING OF [APPELLEES]?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN THE GRANTING OF THE SUMMARY JUDGMENT, DENIAL OF A JURY TRIAL AND OBSTRUCTING THE SUBMISSION OF A COUNTERCLAIM?!4]
3 Appellant’s premature notice of appeal relates forward to January 18, 2017. See Pa.R.A.P. 905(a)(5) (stating notice of appeal filed after court’s determination but before entry of appealable order shall be treated as filed after such entry and on date of entry).
4 To the extent Appellant raises an issue concerning her counterclaims, we interpret Appellant’s claim as a challenge to the court’s order sustaining Bayview’s preliminary objections to Appellant’s counterclaims and dismissing J-A10009-18
(Appellant’s Brief at 8). Initially we observe:
Our scope of review of an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered.
Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of [its] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to ajury. Thus, a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions. The appellate Court may disturb the trial court’s order only upon an error of law or
the counterclaims with prejudice. The record indicates Appellant did not file her counterclaims with her answer to the amended complaint. Rather, Appellant filed her counterclaims separately more than two months after she filed her answer and after Bayview had filed its motion for summary judgment. Appellant’s counterclaims were procedurally improper when filed. Therefore, the trial court properly dismissed her counterclaims. See Pa.R.C.P. 1031(a) (stating: “The defendant may set forth in the answer under the heading ‘Counterclaim’ any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing the answer”). Thus, we give this particular matter no further attention.
-3- J-A10009-18
an abuse of discretion.
Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge bears a heavy burden.
It is not sufficient to persuade the appellate court that it might have reached a_ different conclusion if...charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused. Lineberger v. Wyeth, 894 A.2d 141, 145-46 (Pa.Super. 2006) (internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas C. Branca, we conclude Appellant’s issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed July 3, 2017, at 6-11) (finding: in her answer to amended complaint, Appellant admitted she had sole legal possession of
mortgaged property and admitted her status as mortgagor in mortgage J-A10009-18
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J-A10009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
LSF9 MASTER PARTICIPATION : IN THE SUPERIOR COURT OF TRUST : PENNSYLVANIA
Vv. NORMAN ROSETSKY AND DIANE ROSETSKY A/K/A DIANA ROSETSKY A/K/A DIANE GOCHIN
APPEAL OF: DIANE GOCHIN : No. 471 EDA 2017
Appeal from the Judgment Entered January 18, 2017 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2013-21495
BEFORE: GANTMAN, P.J., MCLAUGHLIN, J., and RANSOM*, J. MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 21, 2018
Appellant, Diane Rosetsky a/k/a Diana Rosetsky a/k/a Diane Gochin, appeals pro se from the judgment entered in the Montgomery County Court of Common Pleas, in favor of Bayview Loan Servicing, LLC (“Bayview”), predecessor in interest to Appellee, LSF9 Master Participation Trust (“Trust”),? in this mortgage foreclosure action.2 We affirm.
In its opinion, the trial court sets forth the relevant facts and
procedurally history. Therefore, we have no need to restate them. We add
1 On September 19, 2017, Bayview filed in this Court an application to substitute Trust as plaintiff-appellee per Pa.R.C.P. 2352(a), which this Court granted on October 10, 2017.
2 Norman Rosetsky did not file a notice of appeal, and he is not a party to this appeal.
* Retired Senior Judge assigned to the Superior Court. J-A10009-18
Appellant filed an answer to the amended complaint on March 16, 2015. Bayview filed a motion for summary judgment on May 6, 2015. On May 24, 2015, Appellant filed counterclaims, to which Bayview filed preliminary objections on June 10, 2015. The court sustained Bayview’s preliminary objections and dismissed Appellant’s counterclaims with prejudice on September 17, 2015.
On January 3, 2017, the court entered summary judgment in favor of Bayview. On January 16, 2017, Appellant filed a premature pro se notice of appeal. Bayview subsequently filed a praecipe to enter judgment and assess damages, which the court entered on January 18, 2017.2 The court did not order Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises two issues for our review:
DID THE TRIAL COURT FAIL TO ESTABLISH JURISDICTION AND THE STANDING OF [APPELLEES]?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN THE GRANTING OF THE SUMMARY JUDGMENT, DENIAL OF A JURY TRIAL AND OBSTRUCTING THE SUBMISSION OF A COUNTERCLAIM?!4]
3 Appellant’s premature notice of appeal relates forward to January 18, 2017. See Pa.R.A.P. 905(a)(5) (stating notice of appeal filed after court’s determination but before entry of appealable order shall be treated as filed after such entry and on date of entry).
4 To the extent Appellant raises an issue concerning her counterclaims, we interpret Appellant’s claim as a challenge to the court’s order sustaining Bayview’s preliminary objections to Appellant’s counterclaims and dismissing J-A10009-18
(Appellant’s Brief at 8). Initially we observe:
Our scope of review of an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered.
Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of [its] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to ajury. Thus, a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions. The appellate Court may disturb the trial court’s order only upon an error of law or
the counterclaims with prejudice. The record indicates Appellant did not file her counterclaims with her answer to the amended complaint. Rather, Appellant filed her counterclaims separately more than two months after she filed her answer and after Bayview had filed its motion for summary judgment. Appellant’s counterclaims were procedurally improper when filed. Therefore, the trial court properly dismissed her counterclaims. See Pa.R.C.P. 1031(a) (stating: “The defendant may set forth in the answer under the heading ‘Counterclaim’ any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing the answer”). Thus, we give this particular matter no further attention.
-3- J-A10009-18
an abuse of discretion.
Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge bears a heavy burden.
It is not sufficient to persuade the appellate court that it might have reached a_ different conclusion if...charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused. Lineberger v. Wyeth, 894 A.2d 141, 145-46 (Pa.Super. 2006) (internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas C. Branca, we conclude Appellant’s issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed July 3, 2017, at 6-11) (finding: in her answer to amended complaint, Appellant admitted she had sole legal possession of
mortgaged property and admitted her status as mortgagor in mortgage J-A10009-18
agreement; as result of Appellant’s failure to respond to certain other averments in amended complaint, Appellant was deemed to have admitted she had been in default since November 1, 2010, amount due on principal balance, and that she was sent requisite foreclosure notices; Appellant’s bald claims that MERS lacked authority to transfer note and mortgage and that Freddie Mac is owner of note have no merit; Appellant failed to cite supporting authority for claim MERS lacked authority to assign mortgage; also, when Appellant executed mortgage, she expressly granted MERS authority to transfer mortgage; Appellant’s claim that proper service had not been effectuated upon Norman Rosetsky also fails, because Appellant lacks standing to assert such claim on Mr. Rosetsky’s behalf; in her response to motion for summary judgment, Appellant failed to establish existence of issue of material fact; rather, Appellant repeated meritless claims from her answer to amended complaint and failed to attach or reference any evidence; even though court granted Appellant leave to conduct additional discovery after Bayview filed its summary judgment motion, Appellant failed to incorporate any such discovery into record to demonstrate genuine issue of material fact). The record supports the trial court’s rationale, and we see no reason to disturb it. See Lineberger, supra. Accordingly, we affirm.
Judgment affirmed. J-A10009-18
Judgment Entered.
Joseph D. Seletyn, Es Prothonotary
Date: 6/21/18