J-A02015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EMC MORTGAGE, LLC IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

UNKNOWN HEIRS, SUCCESSORS, 

ASSIGNS, AND ALL PERSONS, FIRMS OR 

ASSOCIATIONS CLAIMING RIGHT, TITLE 

OR INTEREST FROM OR UNDER HELEN 

A. BROLLEY, DECEASED, AND JAMES M. 

BROLLEY, (REAL OWNER)

APPEAL OF: JAMES M. BROLLEY

No. 1031 MDA 2015

Appeal from the Judgment Entered July 23, 2015

In the Court of Common Pleas of Luzerne County

Civil Division at No: 2012-02985

BEFORE: PANELLA, STABILE, and FITZGERALD,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JUNE 16, 2016

Appellant James M. Brolley appeals from the July 23, 2015 judgment 

entered in the Court of Common Pleas of Luzerne County (“trial court”) in 

favor of Appellee EMC Mortgage, LLC (“EMC”). Upon review, we vacate and 

remand.

The facts and procedural history underlying this case are undisputed. 

On March 12, 2012, EMC filed a mortgage foreclosure complaint against 

Appellant, requesting judgment against him for $108,160.50. Appellant 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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answered pro se, claiming that EMC’s complaint should be dismissed based 

on a prior judgment entered on September 9, 2010. See Appellant’s 

Answer, 5/17/12 (“[A] legal judgment has already been rendered in this 

matter by Judge Peter Paul Olszewski.”); see also Appellant’s Reply to 

EMC’s Summary Judgment Motion, 7/1/2013, at Exhibit C. Approximately 

one year after Appellant’s pro se answer, on April 22, 2013, EMC filed a 

praecipe to vacate and discontinue the prior judgment entered at docket 

number 2007-08805. EMC thereafter filed two summary judgment motions 

in the matter sub judice, which the trial court denied. The case proceeded 

to a bench trial, at the conclusion of which judgment was entered in favor of 

EMC. Appellant timely appealed to this Court. In his Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal, Appellant asserted, inter alia, 

that the trial court erred in failing to consider the affirmative defenses of 

collateral estoppel and res judicata, which Appellant claimed he properly 

raised in his pro se answer to the March 12, 2012 complaint. In response, 

the trial court issued a Pa.R.A.P. 1925(a) opinion, rejecting Appellant’s 

assertion based on its conclusion that Appellant waived the affirmative 

defenses as he failed to plead them under the heading “New Matter” as 

required by Pa.R.C.P. No. 1030(a).

On appeal, Appellant once again argues that the trial court erred in 

failing to consider the affirmative defenses of collateral estoppel and res 

judicata. We agree. 

Our standard of review is settled:
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Our appellate role in cases arising from non-jury trial 

verdicts is to determine whether the findings of the trial court 

are supported by competent evidence and whether the trial court 

committed error in any application of the law. The findings of 

fact of the trial judge must be given the same weight and effect 

on appeal as the verdict of a jury. We consider the evidence in a 

light most favorable to the verdict winner. We will reverse the 

trial court only if its findings of fact are not supported by 

competent evidence in the record or if its findings are premised 

on an error of law. However, [where] the issue . . . concerns a 

question of law, our scope of review is plenary.

The trial court’s conclusions of law on appeal originating 

from a non-jury trial are not binding on an appellate court 

because it is the appellate court’s duty to determine if the trial 

court correctly applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664-65 

(Pa. Super. 2014) (citation omitted). Instantly, the trial court’s application 

of Rule 1030 presents a question of law. Boatin v. Miller, 955 A.2d 424, 

427 (Pa. Super. 2008) (citation omitted). 

With the foregoing in mind, it is well-established that our rules of civil 

procedure are to be construed liberally. Green Acres Rehab. & Nursing 

Ctr. v. Sullivan, 113 A.3d 1261, 1272 (Pa. Super. 2015); see 

Pa.R.C.P. No. 126 (“The rules shall be liberally construed to secure the just, 

speedy and inexpensive determination of every action or proceeding to 

which they are applicable.”). 

Here, our review of the record reveals that Appellant indeed pled the 

affirmative defenses of collateral estoppel and res judicata in his pro se

answer to the March 12, 2012 complaint. We recognize Appellant did not 

use the terms “collateral estoppel,” or “res judicata,” but he certainly alleged 

sufficient facts to establish such affirmative defenses. As noted earlier, in 

his pro se answer, Appellant put EMC on notice by asserting “a legal 
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judgment has already been rendered in this matter by Judge Peter Paul 

Olszewski.” Appellant’s Answer, 5/17/12. There is no need to name an 

affirmative defense “if facts sufficient to constitute the defense are pled.” 

Iorfida v. Mary Robert Realty Co., 539 A.2d 383, 397 (Pa. Super. 1988) 

(finding that a single paragraph of defendant’s new matter sufficiently raised 

abandonment as an affirmative defense); accord Vill. of Four Seasons 

Ass’n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814, 821 (Pa. 

Super. 2014), appeal denied, 125 A.3d 778 (Pa. 2015). Thus, the trial court 

erred in failing to construe liberally Appellant’s pro se answer to include the 

affirmative defenses of collateral estoppel and res judicata where Appellant 

alleged that a prior judgment controlled the disposition of the claims 

asserted against him in the March 12, 2012 complaint. As a result, we are 

constrained to vacate the trial court’s judgment in favor of EMC and remand 

this matter to the trial court for consideration on the merits of Appellant’s 

affirmative defenses.1

____________________________________________

1 We note that EMC filed a praecipe to vacate and discontinue the prior 

judgment almost 12 months after Appellant’s filing of his answer in the 

matter sub judicie and almost 21⁄2 years after the prior judgment was 

entered. Relying on the praecipe, EMC argues that Appellant’s affirmative 

defenses fail as a matter of law. We disagree. EMC cites no legal authority, 

and our extensive research reveals none, that would support the filing of a 

praecipe to vacate a prior judgment after another action that may relate to 

the merits of the prior judgment was initiated. Regardless, we express no 

opinion on the merits of Appellant’s affirmative defenses of collateral 

estoppel and res judicata. 
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Judgment vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2016