Mellon Bank, N.A. v. Joseph
| Decision Date | 27 June 1979 |
| Citation | 406 A.2d 1055,267 Pa.Super. 307 |
| Parties | MELLON BANK, N.A. v. James H. JOSEPH and Carol H. Joseph Appeal of James H. JOSEPH. |
| Court | Pennsylvania Superior Court |
Submitted Oct. 26, 1978.
John R. Friedlander, Pittsburgh, for appellant.
Donald S. Mazzotta, Pittsburgh, for appellees.
Before VAN der VOORT, SPAETH and MONTGOMERY, JJ.
This is a mortgage foreclosure case. The complaint, filed December 6 1976, by appellee Mellon Bank, named appellant and his former wife, Carol Joseph, as defendants. The bank got a default judgment against Carol Joseph, but appellee filed an answer new matter, and three counterclaims. Upon the bank's preliminary objections, the lower court struck the answer, new matter, and counterclaims, without leave to amend. This appeal followed. [1]
In striking appellant's answer the lower court said, without further elaboration:
The defendant's Answer herein fails to conform with the letter or spirit of Rule 1029. [2] In reviewing the defendant's Answers it has become apparent to this court that the Answers are non-responsive and irrelevant to the issues of fact involved in the case herein. The defendant's Answers do not comply with the demand for clear, concise and summary form and therefore the defendant's Answers must be stricken.
Lower court opinion at 2.
Paragraph 3 of the complaint alleged that appellant's former wife resided at 254 Tremont Avenue in Greensburg, Pa. Appellant answered that after reasonable investigation he was without sufficient information to admit or deny the averment, and said, "If relevant, strict proof thereof is demanded at trial." While the lower court has some discretion in deciding the sufficiency of a pleading United Refrigerator Co. v. Applebaum, 410 Pa. 210, 189 A.2d 253 (1963), we do not know the reason for the court's impatience with this answer. Perhaps the court regarded the answer as dilatory in the sense that it pleaded ignorance of a fact that the pleader must, or should, know. It seems to us, however, that a man might not know where his former wife resided. In any case, given the default judgment against appellant's former wife, the relevance of her residence so far as concerns the action against appellant is not apparent.
Paragraph 5 of the complaint alleged that appellant and his former wife were the record owners of the mortgaged premises. The answer admitted ownership, but it denied that appellant and his former wife constituted all the record owners, stating that appellant's current wife, Barbara S. Joseph, was also a record owner. The bank argues that this answer was insufficient to alert it and the lower court to a matter at issue between the parties, and that the answer failed to allege either the source of Barbara Joseph's interest or where the record of her interest was located. The bank also argues that Barbara Joseph was not an indispensable party to the action, and even if she were, by failing to file preliminary objections, appellant waived any objection to her non-joinder. However, Pa.R.C.P. 1144 [3] requires that record owner be named in a mortgage foreclosure action, and Rule 1032 [4] provides that an objection to failure to join an indispensable party is Not waived. Appellant's answer thus was not irrelevant. If it was not sufficiently pleaded, the remedy was not to strike the entire answer without leave to amend. In Otto v. American Mut. Ins. Co., 482 Pa. 202, 393 A.2d 450 (1978), our Supreme Court has held that where a complaint fails to state a cause of action, it is usually error to dismiss the complaint without leave to amend. While acknowledging that "(t)here may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile," 482 Pa. at 205, 393 A.2d at 451, the Court said that the right to amend "should not be withheld where there is some reasonable possibility that the amendment can be accomplished successfully (citations omitted)," Id. The Court rejected the appellees' argument, which this court had found dispositive, Otto v. American Mut. Ins. Co., 241 Pa.Super. 423, 361 A.2d 815 (1976), that the appellants had not requested leave to amend.
Paragraph 6 of the complaint alleged that appellant had been in default since August 1, 1976. The answer admitted the default but alleged:
The averments of the 6th numbered paragraph are denied insofar as they allege or imply that the Defendant, James H. Joseph, has failed and refused to pay in full the mortgage obligation beginning from on or about August 1, 1976 and continuing through August of 1977. On the contrary, however, it is specifically alleged that the Defendant, James H. Joseph, individually and on behalf of his wife, Barbara S. Joseph, and individually and through his counsel, have made repeated tenders of the full amount due and owing under the aforesaid mortgage obligation, which tenders have been refused by the Plaintiff, Mellon Bank, N.A.
The bank argues that this answer was insufficient because it failed to inform it and the lower court of what matters were at issue. [5] However, the Act of May 4, 1927, P.L. 710, § 1, 21 P.S. § 733, provides that:
It shall be lawful for any person or persons, natural or artificial, holding lands encumbered by a mortgage, judgment, recognizance, or other security, after the same shall become due and payable, his or their agent, attorney, or terre tenant, to tender to the owner or owners of such mortgage, judgment, recognizance, or other security, the full sum of money due thereon, including interest and any other charges due, and, upon such tender, to require the owner or owners to assign and transfer to such person or persons as the owner of the encumbered property may name, such mortgage, judgment, recognizance, or other security. Such assignment shall create no personal liability on the part of the assignor, by way of implied warranty, or otherwise, and any such assignment shall be without recourse.
We see no reason why appellant's alleged tender of the amount of the mortgage is not relevant as a defense in the foreclosure action. Possibly tender should have been pleaded as an affirmative defense, under new matter; if so, this error is not substantive. Lachner v. Swanson, 251 Pa.Super. 561, 380 A.2d 922 (1977). The allegation of tender does appear insufficiently specific, in particular as regards the amount offered and the date of tender. Again, however, appellant should have been given leave to amend, to make the allegation more specific.
Finally, paragraph 7 of the complaint alleged an amount due, and broke the amount down into principal, escrow deficiency, late charges, interest, and attorney's fee. Appellant answered that after reasonable investigation, he was without sufficient information to admit or deny the averments. The bank argues that this allegation of ignorance is unsupportable for several reasons: because appellant pleaded that he had tendered the full amount, and therefore must know it; because appellant is an attorney who " negotiated, executed and made (the) payments," Brief for Appellee at 5; and because a reasonable investigation would have disclosed the amount due. It is true that a defendant may not rely on Rule 1029(c)(1) to excuse a failure to make a specific denial when it is clear that he must know whether a particular allegation is true or false. Scales v. Sheffield Fabricating & Machine Co., 258 Pa.Super. 568, 393 A.2d 680 (1978); Cercone v. Cercone, supra. Here, however, without amortization tables, a mortgagor even an attorney is not likely to know the exact amount of principal due. Late charges, escrow payments, interest, and attorney's fees could well be similarly beyond the mortgagor's knowledge; they will in any event be better known to the mortgagee. The mere fact, if it be a fact, that appellant tendered a certain amount should not bind him in court; his cooperation was as likely to have been based on a desire to settle the matter, as on the knowledge of the correctness of the figures.
In short, we find no such flouting of Rule 1029 as the lower court apparently did. Appellant's answers were relevant and if inartfully pleaded, should have been subject to amendment. Otto v. American Mut. Ins. Co., supra; see Medusa Portland Cement Co. v. Marion Coal & Supply Co., 204 Pa.Super. 5, 201 A.2d 285 (1974).
Appellant's new matter alleged that the bank "failed to comply with all of the requirements of the Act of January 30, 1974 respecting the foreclosure of or enforcement of obligations secured by real property . . . ." We agree that this allegation was insufficiently specific, but for the reasons just discussed, appellant should have been permitted to amend it. Otto v. American Mut. Ins. Co., supra.
Only two of appellant's three counterclaims are subjects of this appeal, one of them having been abandoned below. Brief for Appellant at 10. In one of the two remaining counterclaims appellant alleged that the bank had refused his tender of the mortgage obligation and his demand for assignment of the mortgage. Appellant asked the lower court to compel the assignment and to award damages for the bank's refusal. The compelled assignment would have been by virtue of the Act of May 4, 1927, P.L. 710, § 2, 21 P.S. § 734, which provides:
In case the holder of any such mortgage, judgment, recognizance, or other security, shall fail or refuse, on such tender being made, to execute an assignment or transfer as required, it shall be the duty of the court of common pleas of the county in which said mortgage, judgment, recognizance, or security is entered, or of the county in which the holder thereof resides, such court sitting in equity, to enforce, by...
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