First Wisconsin Trust Co. v. Strausser

• Decision Date: 27 January 1995
• Parties: FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP. Appeal of Diane J. STRAUSSER. FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP. Appeal of Norman PERLBERGER. FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP. Appeal of Norman PERLBERGER.
• Court: Pennsylvania Superior Court

Page 688

653 A.2d 688

439 Pa.Super. 192

FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP.

Appeal of Diane J. STRAUSSER.

FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP.

Appeal of Norman PERLBERGER.

FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP.

Appeal of Norman PERLBERGER.

Superior Court of Pennsylvania.

Submitted Nov. 15, 1994.

Filed Jan. 27, 1995.

James C. Schwartzman, Philadelphia, for Diane J. Strausser.

Norman Perlberger, pro se.

Mark J. Udren & Francis S. Hallinan, Philadelphia, for First Wisconsin Trust Co.

Before WIEAND, CIRILLO and TAMILIA, JJ.

CIRILLO, Judge.

Presently before this court are three separate appeals, all of which concern the same facts, parties and issues. Consequently, for reasons of judicial economy, we will consolidate these actions for purposes of this decision pursuant to Pa.R.A.P. 513. ¹

On November 30, 1987, Appellants, Norman Perlberger (Perlberger) and Diane J. Strausser (Strausser), executed and delivered a promissory note to Appellee's predecessor-in-interest, Midlantic Home Mortgage Corporation (Midlantic), in the principal sum of of $310,000.00. This amount was to be paid in equal, consecutive monthly installments of principal and interest over a thirty (30) year term commencing January 1, 1988. The rights under the note were eventually assigned to Plaintiff-Appellee, First Wisconsin Trust Company.

On the same date, Defendant-Appellants executed a mortgage on the premises at 309 Milford Road, Lionville, Pennsylvania ("mortgaged premises") as security for the note. The mortgage was also assigned to Plaintiff-Appellee. Less than four years after executing the note and mortgage, Appellants defaulted in the payment of the monthly installments, as payments due May 1, 1991, and each month thereafter, remain unpaid.

Subsequently, Plaintiff-Appellee notified Appellants of their default and its intention to foreclose on the mortgage. Since the Appellants failed to cure the default and reinstate their mortgage, or pay off the outstanding balance of the loan, Appellee instituted a mortgage foreclosure action against Appellants on March 16, 1992. Appellee also instituted a separate action on the promissory note against Appellants on March 24, 1992 in order to obtain an in personam judgment against Appellant mortgagors so as to cover a possible mortgage foreclosure deficiency.

Strausser appeals from the order entered in the Court of Common Pleas of Chester County (No. 92-02583) granting summary judgment for Plaintiff-Appellee, First Wisconsin Trust Company (First Wisconsin), in the mortgage foreclosure action instituted by First Wisconsin (No. 03870 PHL 93). Strausser raises one issue for our review:

Whether the trial court erred in granting Summary Judgment for Appellee, finding that Appellant [Strausser] had no legal defenses, where Appellant had submitted her verified Complaint against co-defendant [Perlberger] in Appellant's Answer and New Matter which set forth defenses that struck to the validity of the Mortgage?

When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, the appellate court's scope of review is well-settled: summary judgment is properly granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). 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. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

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. Rule 1029 provides in part:

(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 subdivision (c) 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.

Note

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).

The trial court found that Strausser's answers to the allegations in First Wisconsin's Complaint 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, supra. 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. New York Guardian Mortgage Corp. v. Dietzel, 362 Pa.Super. 426, 429, 524 A.2d 951, 952 (1987). Our rationale in Dietzel is applicable to the present case. In Dietzel we stated, "[u]nquestionably, 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." City of Philadelphia v. Hertler, 114 Pa.Commw. 475, 482, 539 A.2d 468, 472 (1988) (emphasis added). 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.

In addition, Strausser, in her New Matter to First Wisconsin's Complaint, refers to her Complaint against Perlberger and admits that she signed an agreement to purchase the mortgaged premises and that on November 30, 1987, she "closed on the Lionville house." Strausser Complaint, pp 28-29. This directly contradicts her denial of these facts which were asserted by First Wisconsin in paragraphs three and four of First Wisconsin's Complaint.

In Strausser's New Matter, she claimed that her civil action against Perlberger provided an affirmative defense to First Wisconsin's mortgage foreclosure action. Specifically, Strausser alleges that, at the time she executed the note and mortgage, Perlberger had taken advantage of her while the two were involved in a romantic relationship and who, through manipulation, fraud and deceit, pressured her into purchasing the mortgaged premises.

The trial court dismissed Strausser's affirmative defense because it concluded that counterclaims and affirmative defenses in a mortgage foreclosure action can only be brought if they are a part of, or incident to, the creation of the mortgage. The trial court cited Chrysler First Bus. Credit Corp. v. Gourniak, 411 Pa.Super. 259, 601 A.2d 338 (1992). The trial court's conclusion was only partially correct.

While it is true that Pa.R.C.P. 1148 and Gourniak provide that a defendant in a mortgage foreclosure action can only plead a counterclaim which arises from the same transaction or occurrence from which the plaintiff's action arose, we specifically stated in Gourniak that Rule 1148 only governs counterclaims in mortgage foreclosure actions and does not govern the pleading of a new matter. Gourniak, 411 Pa.Super. at 267, 601 A.2d at 342. Nevertheless, we find that Strausser's affirmative defense raised in her New Matter is without merit as it pertains to this case.

Strausser claims that the defenses of duress, fraud and unjust enrichment, resulting from Perlberger's alleged influence over her, "strike at the validity of the Mortgage." The cases relied on by Strausser to support this position, however, are inapposite.

Appellant Strausser refers this court to Fleet Real Estate Funding v. Smith, 366 Pa.Super. 116, 530 A.2d 919 (1987) and First Federal Sav. & Loan Ass'n. of Pittston v. Reggie, 376 Pa.Super. 346, 546 A.2d 62 (1988). In Fleet, this court reversed the granting of summary judgment in favor of a mortgagee and found that a genuine issue of material fact, concerning the mortgagee's alleged failure to adequately service the mortgage in compliance with the Federal Housing Administration, precluded summary judgment. Fleet, supra, 366 Pa.Super. 116, 530 A.2d 919. In Reggie, this court vacated an entry of summary judgment in favor of the mortgagee where there existed a material fact as to whether the mortgagee made material misrepresentations in order to induce the debtors to...