Rolnik, J. v. Prout, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JANICE ROLNIK AND WILLIAM : IN THE SUPERIOR COURT OF
SYDNES, HUSBAND AND WIFE : PENNSYLVANIA
:
Appellants :
:
v. :
:
ARTHUR GARNETT PROUT :
:
Appellee : No. 1158 EDA 2021
Appeal from the Judgment Entered May 10, 2021
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2018-22516
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED JUNE 28, 2022
Appellants, Janice Rolnik and William Sydnes, husband and wife, appeal
from the judgment entered in the Montgomery County Court of Common
Pleas, in favor of Appellee, Arthur Garnett Prout, in this ejectment action
seeking possession of real property following mortgage foreclosure
proceedings against Appellee. We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows:
A. The Foreclosure Action
On March 27, 2012, an action was filed in this [c]ourt
against [Appellee] to foreclose on a mortgage (“the
Mortgage”) on his residence, located at 48 Prospect Avenue,
Bryn Mawr, Pennsylvania, in Lower Merion Township (“the
Mortgaged Premises” or “the Premises”). The action was
docketed at No. 2012-08077 (“the Foreclosure Action.”)
The plaintiff was named as “U.S. Bank National Association
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as Trustee for RASC 2005KS9” (hereinafter referred to as
“Original Foreclosure Plaintiff”). The Complaint named the
Mortgaged Premises as [Appellee’s] last-known address.
On April 16, 2012, two Orders for Service with Sheriff’s
Returns were filed, purporting to show service of the
Complaint on [Appellee]. One Order for Service directed the
Sheriff to make service on [Appellee] at 46 Prospect Avenue
in Bryn Mawr, presumably next door to the Mortgaged
Premises at 48 Prospect Avenue. The Sheriff’s Return stated
the date of service as April 10, 2012; the time of service as
“0735”; the person served as Lynette Sears; her
relationship as “Sister”; and the place of service “As Given”
(i.e., at the address of 46 Prospect Avenue set forth in the
Order for Service). The other Order for Service directed the
Sheriff to make service on [Appellee] at 48 Prospect Avenue
(the Mortgaged Premises). On this Order, the Sheriff’s
Return stated the same date and time of service; the same
person served and her same relationship; and the place of
service as 46 Prospect Avenue. Thus, the only Returns of
Service filed of record show that service of process was
purportedly made on [Appellee] by handing a copy to his
sister at 46 Prospect Avenue.
On December 28, 2012, upon praecipe of the Original
Foreclosure Plaintiff, a default judgment was entered
against [Appellee] in the amount of $275,343.25 for failure
to file an answer to the Complaint. Two Praecipes for Writ
of Execution were subsequently filed, on May 13, 2013, and
October 23, 2014, but Original Foreclosure Plaintiff did not
proceed with a Sheriff’s Sale on the basis of those Writs.
Several motions to reassess damages were also filed and
granted.
On June 30, 2016, two related (and somewhat inconsistent)
Praecipes were filed. First, a “Praecipe for Voluntary
Substitution of Party Plaintiff Pursuant to Pa.R.C.P. 2352”
directed the Prothonotary to substitute U.S. Bank National
Association, as Trustee for Residential Asset Securities
Corporation, Home Equity Mortgage Asset-Backed Pass-
Through Certificates, Series 2005-KS9 (hereinafter, “U.S.
Bank, Trustee”) as successor Plaintiff, on the basis of a
purported assignment of the Mortgage to U.S. Bank,
Trustee, recorded May 12, 2015. Second, a “Praecipe to
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Mark Judgment to Use Plaintiff” directed the Prothonotary to
mark the judgment to the use of U.S. Bank, Trustee.
A new Praecipe for Writ of Execution was filed on October
24, 2017. Pursuant to that Writ, a Sheriff’s sale of the
Mortgaged Premises was held on January 31, 2018; U.S.
Bank, Trustee, was the successful bidder.
At no time during any of the proceedings in the Foreclosure
Action did [Appellee] defend against the foreclosure claim,
seek relief from the foreclosure judgment or the Sheriff’s
sale, or take any other action in the case.
B. The Ejectment Action
The present action was brought in this [c]ourt against
[Appellee] by [Appellants], on September 20, 2018,
docketed at No. 2018-22516 (“the Ejectment Action”).
[Appellants’] Complaint averred that they had purchased
the Premises from “U.S. Bank National Association” on
August 17, 2018, following “a Sheriff’s Sale as a result of a
foreclosure by U.S. Bank National Association.” Attached as
Exhibit A to the Complaint was a copy of a Special Warranty
Deed for the Premises dated August 17, 2018, with U.S.
Bank, Trustee, named as Grantor and [Appellants] named
as Grantee. The Complaint averred that [Appellee] had
refused to enter into a lease for the Premises or to pay rent
and had further refused to vacate the Premises. The
Complaint sought judgment for possession and unpaid back
rent.
[Appellee], acting pro se, filed an Answer to the Complaint,
asserting that he remained the owner of the Premises. The
Answer included a counterclaim against [Appellants],
alleging that they had engaged in threats and harassment
against him.
Pursuant to an Arbitration Praecipe filed by [Appellants] on
January 21, 2019, an arbitration hearing was held on May
14, 2019. An Arbitration Award was entered that date in
favor of [Appellee] on [Appellants’] claim. [Appellants] filed
a timely Notice of Appeal from the Arbitration Award on May
16, 2019.
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A nonjury trial was held before this [c]ourt [by
videoconference] on January 6, 2021. [Appellants’]
evidence established that [Appellee] had granted a
Mortgage on the Mortgaged Premises to Mortgage Electronic
Registration Systems, Inc. (“MERS”), as nominee for
Homecomings Financial Network, Inc. (“Homecomings”), by
an instrument dated August 12, 2005; that an Assignment
of Mortgage from Homecomings to U.S. Bank, Trustee, was
recorded on December 3, 2013; that a separate Corporate
Assignment of Mortgage (apparently as a corrective
instrument) from MERS, as nominee for Homecomings, to
U.S. Bank, Trustee, was recorded on May 12, 2015; that a
Sheriff’s Deed for the Premises, referencing the Foreclosure
Action and conveying the Premises to U.S. Bank, Trustee,
was executed and acknowledged on March 5, 2018, and
recorded on March 19, 2018; and that U.S. Bank, Trustee,
conveyed the Premises to [Appellants] by Special Warranty
Deed dated August 17, 2018, and recorded on August 30,
2018. Ms. Rolnik testified that [Appellee] refused to vacate
the Premises. The matter of back rent was not pursued.
On cross-examination by [Appellee], Ms. Rolnik testified
that [Appellants] had a “bringdown” title search conducted
before purchasing the Premises. After obtaining title to the
Premises, she had the locks changed but [Appellee] then
changed them again. Ms. Rolnik also testified to an
altercation that occurred between her and [Appellee]
outside the Premises.
[Appellee] testified on his own behalf. His testimony was
rambling and difficult to follow and consisted to a large
extent of lengthy readings from unidentified documents.
Much of the testimony asserted that the Mortgage was
fraudulent, that MERS’s involvement in the mortgage
process was improper, that MERS had acted unlawfully in
connection with other mortgages on other properties, and
that the mortgage foreclosure proceedings against him were
defective.
On January 13, 2021, the [c]ourt rendered its Decision. In
Findings of Fact, the Decision recited the history of the
Foreclosure Action, including the entry of judgment, the
Sheriff’s sale, and the Sheriff’s Deed to U.S. Bank, Trustee.
The [c]ourt found that Ms. Rolnik had the locks changed on
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the Premises without [Appellee’s] consent and that this
conduct caused [Appellee] some concern for his safety and
the safety of his property. In Conclusions of Law, the
Decision stated:
In an action to eject an occupant from property after
a mortgage foreclosure and sheriff’s sale of the
property, the occupant cannot collaterally attack the
judgment of foreclosure or the sheriff’s sale except on
grounds that the judgment is “void” and not merely
“voidable.”
The [c]ourt noted that there were apparent “procedural
irregularities” in the Foreclosure Action but that these
irregularities did not render the foreclosure judgment “void”
rather than “voidable” and therefore could not be raised as
a defense to ejectment. The [c]ourt further held that the
Sheriff’s sale divested [Appellee] of any ownership interest
in the Premises and that [Appellants] were thus entitled to
possession. On [Appellee’s] counterclaim, the [c]ourt
determined that Ms. Rolnik’s unauthorized changing of the
locks constituted a trespass and awarded [Appellee]
damages of $250.
On January 28, 2021, [Appellee] filed a document titled
“Motion for Post Trial Relief 227.1.” Although lengthy and
prolix, the Motion included a statement that post-trial relief
should be granted on grounds of “improper serving process
of legal paper—Jurisdiction.” [Appellants] filed a Response
on February 9, 2021. On the same date, the [c]ourt entered
an order referring to [Appellee’s] jurisdictional objection
based on improper service and directed as follows:
[Appellants] may file a supplemental brief, limited to
the following issues:
(a) whether service of the Complaint on [Appellee]
in the underlying mortgage foreclosure case was
defective;
(b) whether [Appellee] may properly raise the issue
of defective service in the underlying mortgage
foreclosure case as a defense to ejectment in the
present case.
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In a footnote, the [c]ourt elaborated on the potential defect
in service as follows: “The docket in the underlying
mortgage foreclosure case indicates that service of the
Complaint was purportedly made on [Appellee’s] sister at
46 Prospect Avenue, which does not appear to be
[Appellee’s] residence.”
[Appellants] filed a supplemental Memorandum of Law on
February 17, 2021. … [The court subsequently joined U.S.
Bank, Trustee as a party defendant in this action].
* * *
[N]o response was filed by U.S. Bank, Trustee. On May 10,
2021, the [c]ourt issued an Order that recited the lack of
response, granted [Appellee’s] Motion for Post Trial Relief,
and entered judgment in favor of [Appellee] on [Appellants’]
Complaint. In an explanatory footnote, the [c]ourt stated
that [Appellee] had not been properly served with the
Complaint in the Foreclosure Action, that the foreclosure
judgment was therefore void, and that the ejectment claim
by [Appellants], who trace their title to that foreclosure
judgment, must fail. [The Order also entered judgment in
favor of Appellee and against Ms. Rolnik (but not Mr.
Sydnes) for $250 on his counterclaim.]
[Appellants] filed a timely Notice of Appeal from the
judgment on June 2, 2021, and U.S. Bank, Trustee, filed a
timely Notice of Appeal on June 9, 2021.[1] [Appellants’]
Concise Statement of Errors Complained of on Appeal…was
filed on June 18, 2021, and U.S. Bank, Trustee, filed a
Concise Statement of Errors Complained of on Appeal…on
June 30, 2021.
(Trial Court Opinion, filed September 13, 2021, at 1-10) (internal citations
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1 Appellants’ notice of appeal was docketed in this Court at No. 1158 EDA 2021
(the current appeal). U.S. Bank, Trustee’s notice of appeal was docketed in
this Court at No. 1497 EDA 2021. On October 21, 2021, U.S. Bank, Trustee
filed a praecipe to withdraw the appeal, and this Court withdrew and
discontinued the appeal that day.
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and footnotes omitted).
Appellants raise the following issues for our review:
Did the trial court err in concluding that service of the
complaint on [Appellee] in the underlying mortgage
foreclosure case … was defective?
Did the trial court err in that [Appellee] neither [pled]
pursuant to Pa.R.C.P. 1032 nor submitted any evidence at
the time of trial in this matter and did not raise defective
service to support his claim that he was not served or had
no notice of the underlying mortgage foreclosure action?
Did the trial court err in that it failed to follow Hollinger v.
Hollinger, 416 Pa. 473, 206 A.2d 1 (1965) and Liquid
[Carbonic] Corp. v. Cooper and Reese, Inc., 416 A.2d
549 (Pa.Super. 1979), in that both of those cases found
that, absent fraud, a sheriff’s return is conclusive and
immune from attack as to the facts stated therein of which
the sheriff presumably had personal knowledge?
Did the trial court err in failing to conclude that the sheriff’s
return of service was conclusive and immune from attack?
(Appellants’ Brief at 7).
We combine Appellants’ issues.2 Appellants argue that Appellee failed
to raise an issue concerning improper service in the foreclosure action at the
current ejectment trial. Appellants insist that Appellee could not raise the
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2 Notwithstanding Appellants’ presentation of four issues in their statement of
questions presented, Appellants’ brief contains only one argument section, in
violation of Pa.R.A.P. 2119(a) (stating argument shall be divided into as many
parts as there are questions to be argued; and shall have at head of each
part—in distinctive type or in type distinctively displayed—particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent). Nevertheless, Appellants’ failure to conform to Rule
2119(a) does not impede our review, as the single argument section
addresses all four issues raised in the statement of questions presented.
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issue of defective service in the foreclosure action for the first time in post-
trial motions following the ejectment trial. Appellants assert that the cases
on which the trial court relied are distinguishable because the defendants in
those cases raised the defects at issue at or before the time of trial.3
Even if Appellee is permitted to challenge service in the foreclosure
action for the first time in post-trial motions in the ejectment action,
Appellants contend the returns of service in the foreclosure action show
service was proper. Specifically, Appellants claim the two returns of service
at issue showed service at (1) 46 Prospect Avenue; and (2) “As Given.”
Appellants suggest the second return of service stating “As Given” means
service was properly effectuated at 48 Prospect Avenue (the mortgaged
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3 Appellants also maintain Pa.R.C.P. 1032 precluded Appellee from asserting
improper service for the first time in post-trial motions. Rule 1032 states:
A party waives all defenses and objections which are not
presented either by preliminary objection, answer or reply,
except a defense which is not required to be pleaded under
Rule 1030(b), the defense of failure to state a claim upon
which relief can be granted, the defense of failure to join an
indispensable party, the objection of failure to state a legal
defense to a claim, the defenses of failure to exercise or
exhaust a statutory remedy and an adequate remedy at law
and any other nonwaivable defense or objection.
Pa.R.C.P. 1032(b). Nevertheless, Appellants did not cite to or rely on Rule
1032 in their memorandum in opposition to Appellee’s post-trial motion, or in
their Rule 1925(b) statement. Thus, Appellants cannot raise any argument
concerning Rule 1032 for the first time on appeal. See Pa.R.A.P. 302(a)
(stating issues not raised in trial court are waived and cannot be raised for
first time on appeal).
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premises) and accepted by Appellee’s sister. Appellants conclude that
“[w]ithout [Appellee] raising the issue of defective service of process in the
underlying mortgage foreclosure during the ejectment action by way of
pleading or presenting any evidence at trial, he has waived this as a defense
in the ejectment action and the [trial c]ourt’s [d]ecision should be reversed.”
(Appellants’ Brief at 18). For the following reasons, Appellants have waived
their claims.
As a preliminary matter, we recognize:
The fundamental tool for appellate review is the official
record of the events that occurred in the trial court. To
ensure that an appellate court has the necessary records,
the Pennsylvania Rules of Appellate Procedure provide for
the transmission of a certified record from the trial court to
the appellate court. The law of Pennsylvania is well settled
that matters which are not of record cannot be considered
on appeal. Thus, an appellate court is limited to considering
only the materials in the certified record when resolving an
issue. In this regard, our law is the same in both the civil
and criminal context because, under the Pennsylvania Rules
of Appellate Procedure, any document which is not part of
the officially certified record is deemed non-existent—a
deficiency which cannot be remedied merely by including
copies of the missing documents in a brief or in the
reproduced record. The emphasis on the certified record is
necessary because, unless the trial court certifies a
document as part of the official record, the appellate
judiciary has no way of knowing whether that piece of
evidence was duly presented to the trial court or whether it
was produced for the first time on appeal and improperly
inserted into the reproduced record. Simply put, if a
document is not in the certified record, the Superior
Court may not consider it.
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete
certified record. This requirement is not a mere
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“technicality” nor is this a question of whether we are
empowered to complain sua sponte of lacunae in the record.
In the absence of an adequate certified record, there
is no support for an appellant’s arguments and, thus,
there is no basis on which relief could be granted.
* * *
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any
transcript necessary to permit resolution of the issues raised
on appeal. Pa.R.A.P.1911(a). … When the appellant or
cross-appellant fails to conform to the requirements
of Rule 1911, any claims that cannot be resolved in
the absence of the necessary transcript or transcripts
must be deemed waived for the purpose of appellate
review. It is not proper for either the Pennsylvania
Supreme Court or the Superior Court to order
transcripts nor is it the responsibility of the appellate
courts to obtain the necessary transcripts.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa.Super. 2006), appeal
denied, 591 Pa. 663, 916 A.2d 632 (2007) (most internal citations omitted)
(emphasis added).
Instantly, there is no transcript of the January 6, 2021 ejectment trial
in the certified record. Upon informal inquiry from this Court, we discovered
that Appellants did not order or pay for the trial transcript. Appellants’ chief
complaint on appeal is that Appellee was required to, but did not, preserve his
challenge to improper service in the underlying mortgage foreclosure during
or before the current ejectment action trial. In his pro se brief, Appellee
disputes this contention, claiming that he testified about defective service at
the ejectment trial. (See Appellee’s Brief at 6, 9, 10). Although the trial court
opinion suggests Appellee did not assert improper service until he filed post-
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trial motions, we have no way to confirm whether Appellee raised this issue
during the ejectment trial in the absence of the trial transcript. Appellants’
failure to ensure that the certified record contained the relevant trial transcript
constitutes waiver of Appellants’ claim that Appellee did not preserve the issue
of improper service.4 See Preston, supra.Additionally, the certified record does not contain the docket entries
from the underlying mortgage foreclosure action or the returns of service from
that action verifying service of the mortgage foreclosure complaint. The trial
court explains in its opinion that it took judicial notice of the underlying
mortgage foreclosure action, without objection from any party. Nevertheless,
this Court may not consider documents which are not part of the certified
record. See id. See also Pa.R.A.P. 1921, Note (stating: “An appellate court
may consider only the facts which have been duly certified in the record on
appeal”). Further, “this Court will not ordinarily take judicial notice of records
in another case…” Richner v. McCance, 13 A.3d 950, 956 n.2 (Pa.Super.
2011). In the absence of the returns of service from the underlying mortgage
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4 In some instances, remand might be appropriate if there was an error in
transmitting a portion of the certified record to this Court, as “[a]n appellant
should not be denied appellate review if the failure to transmit the entire
record was caused by an extraordinary breakdown in the judicial process.”
Preston, supra at 8 (internal citation omitted). “However, if the appellant
caused a delay or other problems in transmitting the certified record, then he
or she is not entitled to relief and the judgment of the court below should be
affirmed.” Id. Here, it was Appellants’ failure to order and pay for the trial
transcript that caused the incomplete record. Thus, we decline to remand in
this case.
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foreclosure action included in the record before us, we cannot review
Appellants’ argument that the “As Given” notation on the second return of
service demonstrates service was properly made at the mortgaged premises.5
Appellants’ failure to ensure that the certified record contained the docket
entries and returns of service from the underlying mortgage foreclosure action
similarly constitutes waiver of Appellants’ alternative argument that service
was not defective, even if Appellee had properly preserved his claim. See
Preston, supra. Accordingly, Appellants’ issues are waived on appeal, and
we affirm.
Judgment affirmed.
Judge Olson joins this memorandum.
Judge McCaffery joins the memorandum and files a concurring
statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2022
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5 Although a public docket search of the underlying mortgage foreclosure
action at No. 2012-08077 reveals two entries showing the mortgage
foreclosure complaint was served on April 10, 2012 (docketed on April 16,
2012), the actual documents (presumably, the returns of service) are not
viewable without payment.
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