J-S37023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BANK OF AMERICA, N.A., SUCCESSOR 

BY MERGER TO BAC HOME LOANS 

SERVICING, LP,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HARRY DARBY,

Appellant No. 2042 EDA 2014

Appeal from the Order June 10, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): No. 2010-02778

BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 07, 2015

Appellant Harry Darby (“Darby”) appeals from the June 10, 2014 order 

from the Court of Common Pleas of Montgomery County denying Darby’s 

second petition to open a default judgment. Bank of America, N.A. (“BANA”) 

is the Appellee/Mortgagee. For the following reasons, we affirm. 

The trial court described the procedural history of this matter, as 

follows:

On February 2, 2010, [BANA] filed its mortgage 

foreclosure complaint. The Montgomery County Sheriff’s 

Department served the complaint on [an adult person in charge 

of [Darby’s] residence] on March 1, 2010. (Docket entry no. 1).

The Prothonotary entered default judgment against 

[Darby] on April 28, 2010. Attached to the Praecipe to Enter 

Default Judgment is the required certification from [BANA] that it 

had served [Darby] with Notice of Intention to file the Praecipe 

to Enter Default Judgment at least 10 days prior to filing the 
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Praecipe to Enter Default Judgment. [BANA] also attached a 

copy of the Notices of Intention to file Praecipe to Enter Default 

Judgment that it sent to [Darby]. Those notices are dated 

3/23/10 and 4/7/10.

[Darby] filed a Petition to Open/Strike Default Judgment 

on 4/17/12. In this Petition, [Darby] alleges that: (1) service 

was not properly effectuated as he was incarcerated at the time 

and (2) [BANA] failed to serve the required Notice of Intent to 

file Praecipe to Enter Default Judgment prior to filing the 

Praecipe to Enter Default Judgment.

By Memorandum Opinion and Order dated 10/22/12, we 

denied [Darby’s] 4/17/12 Petition to Open/Strike Default 

Judgment. We concluded that [BANA] had properly served the 

complaint. The sheriff’s department served the complaint within 

the required 30-day period following the filing of the complaint. 

Furthermore, the complaint was served on an adult person in 

charge of [Darby’s] residence as permitted by the Rules of Civil 

Procedure.

We also concluded that [Darby] had failed to satisfy the 

three-prong test for opening default judgment, which consists of 

the following elements: (1) the petition has been promptly filed; 

(2) the default can be reasonably explained or excused; and (3) 

there is a meritorious defense to the underlying claim. Miller 

Block Co. v. U.S. National Bank in Johnstown, 567 A.2d 695 (Pa. 

Super. 1989).

We determined that [Darby] could not satisfy the first 

prong of the test in that he did not file his Petition to Open until 

nearly two (2) years following entry of default judgment.

On December 4, 2012, [Darby] appealed the Order 

denying his 4/17/12 Petition to Open/Strike Default Judgment. 

See 1396 EDA 2013. Pursuant to [BANA’s] request to quash the 

appeal as untimely, the Superior Court quashed the appeal by 

Order filed on July 16, 2013.

On December 13, 2012, while [Darby’s] appeal of the 

denial of his Petition to Open/Strike Default Judgment was 

pending in the Superior Court, [Darby] filed a Motion to Open 

Default Judgment on the basis of fraud committed by [BANA]. 

[Darby] included the following allegations in this Motion to 

Open Default Judgment:
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(1) [BANA] never filed or served the required Notice of Intention 

to file Praecipe to Enter Default Judgment;

(2) no praecipe certifying prior notice of intent to file for default 

judgment exists as shown on the docket;

(3) the Prothonotary did not provide [Darby] with the 10-day 

notice of intent to file for default judgment;

(4) [BANA] did not provide the Prothonotary with a stamped 

envelope addressed to [Darby] as required by Pa.R.C.P. 236; 

and

(5) [BANA] and the Court failed to serve [Darby] with documents 

related to [Darby’s] 4/17/12 Petition to Open/Strike Default 

Judgment.

On February 11, 2013 (the rule return date related to 

[Darby’s] 12/13/12 Motion to Open Default Judgment), [BANA] 

filed a response to [Darby’s] 12/13/12 Motion to Open Default 

Judgment.

On March 1, 2013, [Darby] filed an Answer and Affirmative 

Defenses to [BANA’s] Complaint.

On April 2 and 5, 2013, [Darby] filed identical requests for 

production of documents. [Darby] filed a Motion to Compel 

Production of Documents and Things on April 19, 2013. On May 

14, 2013, [BANA] filed a response to [Darby’s] 4/19/13 Motion 

to Compel. In its response, [BANA] alleged that it had 

responded to [Darby’s] request for documents on 4/15/13. 

[BANA] produced documents requested by [Darby]. A copy of 

the documents produced was attached to [BANA’s] response to 

[Darby’s] 4/19/13 Motion to Compel.

On June 10, 2013, [Darby] again filed a Motion to Compel 

Production of Documents and Things. [Darby] alleged that 

[BANA] had not complied fully with [Darby’s] prior request for 

documents.

Also on June 10, 2013, [BANA] filed a Motion to Strike 

[Darby’s] Answer and Affirmative Defenses that [Darby] filed on 

4/17/12 and 3/1/13.

By Order dated June 25, 2013, we stayed any action on 

any outstanding motions due to the pending appeal in the 
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Superior Court ([Darby’s] appeal of the 10/22/12 Order denying 

his 4/17/12 Petition to Open/Strike Default Judgment; 1396 EDA 

2013).

On July 25, 2013, [Darby] appealed our Order dated 

June 25, 2013. See 2630 EDA 2013. By Order filed in the 

Superior Court on 7/16/13, the Superior Court granted [BANA’s] 

Motion to Quash the appeal at 1396 EDA 2013 as untimely.

As a result of the quashing of [Darby’s] appeal at 1396 

EDA 2013, the case could proceed again. Therefore, by Order 

dated 12/9/13, we scheduled a one-hour video conference 

regarding the four (4) motions/petitions set forth in the first 

paragraph of this Memorandum Opinion and Order. . . . Our 

Order also set forth a briefing schedule related to these four (4) 

motions/petitions.

* * *

By Order filed in the Superior Court on 11/22/13, the 

Superior Court granted [BANA’s] application to quash [Darby’s] 

appeal (2630 EDA 2013) of the Order dated 6/25/13 that stayed 

the case. The Superior Court quashed the appeal because it was 

not taken from a final order.

Trial Court Opinion, 6/9/14, at 2–5 (footnotes omitted). 

Darby’s second petition to open the default judgment was premised 

primarily on an allegation that BANA fraudulently represented that it had 

served certain documents (Docket Entries 41–48)1on Darby. The 

____________________________________________

1

 The pertinent docket entries are: Docket No. 41–Argument Praecipe filed 

by BANA; Docket No. 42–BANA’s response to Darby’s 4/17/12 Petition to 

Open/Strike Default Judgment; Docket No. 43–BANA’s brief in support of its 

response; Docket No. 44–BANA’s certificate of service noting that it had 

served Darby with Docket Nos. 41–43; Docket No. 45–Rule Return date 

issued by Court Administration regarding Darby’s 4/17/12 Petition; Docket 

No. 46–Order issued by Court Administration noting that Darby’s Petition 

would be listed for argument upon the filing of an argument praecipe. Also, 

the Order noted that if any discovery regarding the motion was required, it 

(Footnote Continued Next Page)
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subsequent petition also repeated the claim raised in Darby’s original 

petition that the notice of intent to enter default was improper and defective. 

BANA filed a response to Darby’s second petition denying the allegations and 

arguing, inter alia, that the petition was barred by the doctrines of res 

judicata and collateral estoppel.

On February 21, 2014, the trial court held a video conference to hear 

argument on the merits of Darby’s second petition, as well as the two 

outstanding discovery motions and BANA’s motion to strike Darby’s answer 

and affirmative defenses to the foreclosure complaint. At the outset of the 

hearing, Darby asserted that BANA had not complied with his discovery 

motions and informed the court that he required additional time for 

discovery to prove his claim of fraud. N.T., 2/21/14, at 4–6. 

BANA, for its part, submitted that this Court’s decision to quash the 

appeal at 2630 EDA 2013 as untimely mooted further consideration of the 

matter and urged the court to dismiss all the motions. N.T., 2/21/14, at 8. 

BANA also represented that it had complied with Darby’s discovery requests. 

Id. at 9–10.

On the merits of the petition’s allegations, Darby contended that BANA 

failed to serve him with the pleadings and statutory notices required in a 

(Footnote Continued) _______________________

was to be completed within 60 days; Docket No. 47–BANA’s Argument 

Praecipe waiving argument; Docket No. 48–BANA’s certificate of service 

noting that it had served Docket No. 47 on Darby.
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mortgage foreclosure action, particularly Act 6 and Act 91 notice,2and that 

its certifications on the docket that notice had been provided were 

fraudulent. Darby also complained that, although BANA was aware that he 

was incarcerated, it continued to mail litigation-related documents to Darby’s

residence. N.T., 2/21/14, at 12. Finally, Darby asserted that because the 

foreclosure complaint was defective, there was no jurisdictional basis for 

filing the complaint. Id. at 14.

BANA denied that Pennsylvania law mandates proof of service of Act 6 

or Act 91 notice. Rather, BANA maintained that it was required to show only 

that it sent notices of intent to foreclose to Darby at his last known address 

or mortgage premises, if different. BANA represented that it complied with 

____________________________________________

2

 The Loan Interest and Protection Law, 41 P.S. §§ 101 et seq. (“Act 6”) 

provides that notice of intention to take action on a residential mortgage 

must be in writing and be sent to the residential mortgage debtor by 

registered or certified mail at his or her last known address and, if different, 

to the residence that is the subject of the residential mortgage. 41 P.S 

§ 403 (b). 

The Homeowner’s Emergency Mortgage Assistance Act of 1983 (“Act 91”) 

requires a mortgagee pursuing foreclosure to send notice advising the 

mortgagor of his delinquency and that such mortgagor has thirty days to 

have a face-to-face meeting with the mortgagee who sent the notice or a 

consumer credit counseling agency to attempt to resolve the delinquency by 

restructuring the loan payment schedule or otherwise. 35 P.S. 

§ 1680.403c(a), (b)(1). Act 91 notice is not necessary when the mortgage 

is insured by the Federal Housing Administration (“FHA”). 35 P.S. 

§ 1680.401c(a)(3). Darby’s mortgage was FHA-insured. See Plaintiff’s 

Objections and Response to Defendant’s Request for Production of 

Documents, Docket No. 77, at ¶ 20 (attaching copy of mortgage).
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these notice requirements. BANA did not offer argument on its res judicata

and collateral estoppel claims during the hearing. 

On June 10, 2014, the trial court denied Darby’s second petition to 

open the judgement. In its memorandum opinion, the trial court addressed 

both the allegations raised in Darby’s second petition to open and the 

additional allegations included in the brief Darby submitted in support 

thereof. Relevant to the issues raised in this appeal, the trial court 

concluded: 

[Darby’s] first contention is that [BANA] never filed or 

served the required Notice of Intention to file Praecipe to Enter 

Default Judgment. This assertion is belied by the record. 

Pursuant to Pa.R.C.P. 237.1(a)(2)(ii), a default judgment 

cannot be entered unless the praecipe for entry includes a 

certification that a written notice of intention to file the praecipe 

was mailed or delivered after the failure to plead to a complaint 

and at least ten days prior to the date of the filing of the 

praecipe to the party against whom judgment is to be entered 

and to the party’s attorney of record, if any.

Here, the Praecipe for Entry of Default Judgment contained 

the required certification by [BANA] that stated that [BANA] had 

mailed or delivered the notice of intention after default and at 

least 10 days prior to the filing of the praecipe for default 

judgment. See docket entry no. 2, p. 2. Furthermore, the 

praecipe to enter judgment contained a copy of the notices of 

intention, which is required by subsection (a)(3) of Rule 237.1, 

that [BANA] had served upon [Darby]. The notices attached are 

dated 3/23/10 and 4/7/10.

[Darby] next alleges that a praecipe certifying prior notice 

of intent to file for default judgment does not appear on the 

docket. Again, [Darby’s] assertion is disproved by a review of

the docket. Docket entry no. 2, which is the Praecipe for Default 

Judgment, clearly sets forth on page 2 the required certification 

by [BANA] that it had mailed or delivered the notice of intention 

to file a praecipe for default judgment.
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[Darby’s] third allegation is that the Prothonotary did not 

provide him with a ten-day notice of default pursuant to 

Pa.R.C.P. 237.1.

This allegation is easily dismissed as Rule 237.1 does not 

require the Prothonotary to provide [Darby] with a ten-day 

notice of default. It is a plaintiff that must provide such notice to 

a defendant.

* * *

Next, [Darby] alleges that [BANA] failed to provide 

[Darby] with Act 6 notice or Act 91 notice. 

Without addressing whether [BANA] served [Darby] with 

Act 91 notice, in this case Act 91 notice is not required because 

the mortgage was insured by the Federal Housing 

Administration. See 35 P.S. § 1680.401c(a)(3).

With respect to the Act 6 notice, [BANA] alleged in its 

Complaint that it had served such notice upon [Darby]. See

Complaint, ¶8.

* * *

Finally, and perhaps most importantly, we stress that 

[Darby] has not set forth allegations regarding the three-part 

test for opening default judgment. He has not pled a meritorious 

defense to the underlying foreclosure action. He has not alleged 

that his Motion to Open was filed in a timely manner. [Darby] 

has not pled a reasonable explanation for his failure to file a 

timely responsive pleading to [BANA’s] Complaint.

Trial Court Opinion, 6/9/14, at 5–9. 

The trial court also denied Darby’s discovery motions and granted 

BANA’s motion to strike Darby’s answer and affirmative defenses. Id. at 9–

10. In the concluding paragraph, the trial court advised that “[i]n the event 

that an appeal from this Memorandum Opinion and Order is taken, this 

Memorandum Opinion shall serve as the Court’s opinion pursuant to 

Pa.R.A.P. 1925(a) (1).” Id. at 10. 
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Darby filed a timely notice of appeal on June 30, 2014. In keeping 

with the above-representation, the trial court did not issue an order 

pursuant to Pa.R.A.P. 1925.

Darby raises the following issues for appellate review:

I. DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION IN 

NOT OPENING OR STRIKING DEFAULT JUDGMENT AND 

DISMISSING THE COMPLAINT?

II. DID THE TRIAL COURT LACK SUBJECT MATTER 

JURISDICTION IN FORECLOSURE ACTION, WHERE [BANA] 

FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS 

UNDER ACT-6 AND/OR ACT-91?

III. DID THE PROTHONOTARY ERR IN INITIALLY FILING THE 

COMPLAINT WITHOUT VERIFYING THAT THE COMPLAINT 

CONTAINED THE REQUIRED ACT-6 AND/OR ACT-91 

NOTIFICATION DOCUMENTS?

IV. DID THE PROTHONOTARY ERR IN ENTERING DEFAULT 

JUDGMENT WITHOUT VERIFYING [THAT] THE RECORD 

CONTAINED THE REQUIRED NOTIFICATION DOCUMENTS 

AND COMPLIED WITH PA.R.CIV.P., PRIOR TO ENTERING 

DEFAULT JUDGMENT?

V. DID [BANA] FAIL TO COMPLY WITH PENNSYLVANIA LAWS, 

CONCERNING MORTGAGE FORECLOSURE ACTION?

Darby’s Brief at 3. 

Petitions to open judgments call upon the equitable powers of the 

court and are committed to the sound discretion of the hearing court. 

Mother's Restaurant Inc. v. Krystkiewicz, 861 A.2d 327, 336 (Pa. 

Super. 2004) (en banc). An order denying a petition to open will not be 

disturbed absent a manifest abuse of that discretion. Smith v. Friends

Hospital, 928 A.2d 1072, 1074 (Pa. Super. 2007).
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Darby’s first, third, and fourth issues concern the procedures required 

by the Pennsylvania Rules of Civil Procedure relative to mortgage foreclosure 

complaints and default judgments. Darby urges that: 1) the foreclosure 

complaint was defective because the docket entries do not indicate that he 

received Act 6 or Act 91 notice prior to filing the complaint; 2) the 

prothonotary erred in filing the complaint without verifying that it included 

the required notifications; and 3) the prothonotary erred in entering default 

judgment without verifying compliance with Pa.R.Civ.P. 237.1. 

The trial court’s memorandum opinion addressed adequately each of 

these contentions. The trial court first found that Darby’s assertion that 

BANA failed to file or serve the notice of intention to file praecipe to enter 

default judgment in compliance with Pa.R.Civ.P. 237.1 was belied by the 

record. Trial Court Opinion, 6/9/14, at 5–6. The trial court then agreed with 

BANA that the mortgagee complied with the notice provisions of Act 6 when 

BANA filed the foreclosure complaint and determined that Act 91 notice was 

not implicated since Darby’s mortgage was insured by the FHA. Id. at 8. 

Apart from these issues, the trial court also rejected Darby’s arguments that 

BANA filed false or misleading certificates of service and, upon review of the 

documents attached to Darby’s petition, found that none of the attachments 

supported opening of the judgment. Id. Finally, the trial court concluded 

that Darby failed to plead the requisite components to sustain opening a 

default judgment, i.e., a timely filing of the petition, a reasonable 
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explanation for failing to file a responsive pleading to BANA’s complaint, and 

a meritorious defense. Id. at 9. 

There was no abuse of discretion in the trial court’s determinations. 

Contrary to Darby’s assertions, BANA complied with the applicable 

procedural rules. First, as referenced by the trial court, BANA alleged in its 

foreclosure complaint that it sent Darby both Act 6 and Act 91 notices. 

Complaint, 2/2/10, at ¶ 8. While Darby is correct that copies of the notices 

were not appended to the complaint, such attachments are not necessary. 

Pa.R.Civ.P. 1147 dictates that mortgage foreclosure complaints include:

(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;

(2) a description of the land subject to the mortgage;

(3) the names, addresses and interest of the defendants in 

the action and that the present real owner is unknown if the real 

owner is not made a party;

(4) a specific averment of default;

(5) an itemized statement of the amount due; and

(6) a demand for judgment for the amount due.

Note: The plaintiff may also set forth in the complaint a 

release of the mortgagor and the mortgagor’s successors in 

interest. See Rule 1144(b). If the mortgage is a residential 

mortgage under [Act No. 6] the complaint should set forth 

an averment of compliance with the provisions of Section 

403 of Act No. 6, 41 P.S. § 403. 

Pa.R.Civ.P. 1147(a) (emphasis added). See also 4 Goodrich Amram 2d. 

§ 1147:5 (mortgage foreclosure complaint should set forth an averment of 

compliance with Act 6). Accordingly, a plaintiff filing a complaint in 
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mortgage foreclosure must aver only that it complied with the notice 

requirements of Act 6. It need not take the additional step of attaching the 

notices to the complaint. We thus conclude that BANA’s complaint, alleging 

that notice was sent, was legally sufficient. It thereby follows that the 

prothonotary did not err when it accepted the complaint for filing. 

Next, the trial court’s conclusion that BANA complied with the notice 

requirements of Pa.R.Civ.P. 237.1 is supported by the record. Rule 237.1(2) 

provides in relevant part as follows:

(2) No judgment of non pros for failure to file a complaint or by 

default for failure to plead shall be entered by the prothonotary 

unless the praecipe for entry includes a certification that a 

written notice of intention to file the praecipe was mailed or 

delivered

* * *

(ii) in the case of a judgment by default, after the 

failure to plead to a complaint and at least ten days

prior to the date of the filing of the praecipe to the

party against whom judgment is to be entered and

to the party’s attorney of record, if any.

The ten-day notice period in subdivision (a)(2)(i) and (ii) shall be 

calculated forward from the date of the mailing or delivery, in 

accordance with Rule 106. . . .

(3) A copy of the notice shall be attached to the praecipe.

(4) The notice and certification required by this rule may not be 

waived.

Pa.R.Civ.P. 237.1. 

It is apparent from a review of the docket entries that BANA included 

the required Rule 237.1 certification that written notice of the intention to 
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file the praecipe was mailed to Darby and attached copies of those notices to 

the praecipe for judgment. Docket No. 3, 4/28/10, at 2–6. Therefore, 

Darby cannot prevail on this issue.

Darby has also argued that the trial court lacked subject matter 

jurisdiction to entertain the mortgage foreclosure action because BANA failed 

to comply with the notice requirements of Act 6 and Act 9 (Issue No. II). 

This assertion is neither factually nor legally sustainable. First, we have 

already decided that BANA met the notice requirements. Second, our 

Supreme Court has determined that a defective Act 91 notice does not 

deprive the courts of subject matter jurisdiction. Beneficial Consumer 

Discount Co. v. Vukman, 77 A.3d 547, 553 (Pa. 2013). And, while 

Vukman dealt specifically with Act 91 and not with Act 6, the reasoning of 

Vukman applies to both laws in that a mortgagee’s noncompliance with 

notice requirements does not divest a court of jurisdiction over a foreclosure 

action. Moreover, Act 91 explicitly incorporates the notice requirements 

found in Act 6. See 35 P.S. § 1680.403(c)(b)(l) (the notice shall include all 

the information required by this subsection and by [Act 6]). 

Darby’s fifth issue is a summarization of the other issues raised in his 

brief and does not require separate analysis other than comment on Darby’s 

criticism that BANA failed to produce compliance with Rule 237.1 upon his 

request. BANA cannot be faulted in this regard because Darby plainly had 

access to the docket entries, evidenced by the copy of same attached to his 
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second petition to open the default judgment. Defendant’s Petition to Open, 

Docket No. 57, Ex. A. 

We observe finally that Darby has not challenged the trial court’s 

primary rationale for denying his motion to open the judgment, i.e., Darby’s 

failure to set forth allegations regarding the three-part test for opening 

default judgments. See Boatin v. Miller, 955 A.2d 424, 426 (Pa. Super. 

2008) (the three-prong common law test assesses whether petition was 

promptly filed, stated a meritorious defense to the underlying claim, and 

offered a legitimate excuse for the delay that led to the default). We agree 

with the trial court that Darby has not alleged that his petition was filed in a 

timely manner, has not pled a reasonable explanation for his failure to file a 

timely responsive pleading to BANA’s complaint, and has not pled a 

meritorious defense to the underlying foreclosure action. On this basis 

alone, the trial court’s decision to deny the petition to open was well within 

its discretion. 

For these reasons, the order denying Darby’s second petition to open 

judgment is affirmed.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2015