J-A23029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK N.A., IN ITS CAPACITY 

AS TRUSTEE FOR MORGAN STANLEY 

DEAN WITTER CAPITAL I INC. TRUST 

2001-NC4, BY ITS ATTORNEY IN 

FACT OCWEN LOAN SERVICING, LLC

v.

JAMES SUCHETSKI A/K/A JAMES 

SUCHETSKI JR., AND JAMES 

SUCHETSKI, A/K/A JAMES 

SUCHETSKI, SR.

APPEAL OF: JAMES SUCHETSKI, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 406 WDA 2018

Appeal from the Judgment Entered March 12, 2018

In the Court of Common Pleas of Westmoreland County Civil Division at 

No(s): 7099 of 2011

BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 30, 2018

James Suchetski, Jr. (“James Jr.”) appeals from the judgment entered 

in the Court of Common Pleas of Westmoreland County, following the entry of 

summary judgment in favor of U.S. Bank N.A. (“Bank”) in this mortgage 

foreclosure action.1 We affirm.

Using the name James Suchetski, James Jr. signed a promissory note 

(“Note”) on September 19, 2001, to borrow $47,250 from Bank (“Loan”). In 

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1

 James Suchetski, Sr. filed a separate appeal at 407 WDA 2018.
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consideration of the Loan, James Jr. executed a mortgage in favor of Bank 

(“Mortgage”) on the same date and under the same name, pledging property 

located at 273 Kochka Drive, Apollo, Pennsylvania (the “Property”), and 

warranting that he had title to the Property.2 The Property consists of two 

parcels. James Jr.’s mobile home is located on one parcel; the other parcel is 

vacant. The Mortgage was recorded on October 15, 2001, and contains an 

express representation that James Jr. owns the Property. The Mortgage also 

bears James Jr.’s initials on each page and his signature on the execution line. 

James Jr. failed to make a monthly mortgage payment on June 1, 2011, 

and each month thereafter, in breach of the Note and Mortgage. Thus, Bank 

filed a foreclosure action on October 28, 2011, naming James Jr. as the 

defendant. After a series of unsuccessful preliminary objections, James Jr. 

filed an Answer and New Matter on April 16, 2012. Following discovery, Bank 

requested and was granted leave to file an amended complaint, adding 

James Jr.’s father, James Suchetski, Sr. (“James Sr.”), as a co-defendant. 

Amended Complaint, 5/4/15. James Jr. filed an Answer and New Matter to 

the Amended Complaint on July 30, 2015, asserting that the Loan “was 

designed to encumber the mobile home itself, which would be personal 

property, and not the land that [James, Jr.] did not own.” James Jr.’s Brief at 

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2

 The deed for the Property was dated June 4, 1992, and recorded June 16, 

1992, in the Westmoreland County Recorder of Deeds office. The deed 

identifies “James Suchetski” as owner. 
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6. According to James Jr., James Sr. held title to the Property, and he 

permitted James Jr. to keep the mobile home on the Property. James Sr. did 

not give James Jr. authority to encumber the Property.

Bank filed a motion for summary judgment on November 28, 2017. 

James Jr. did not file a response in opposition to Bank’s motion pursuant to 

Westmoreland Local Rule of Civil Procedure (“Local Rule”) W1035.2(a)(2)(a).3 

The trial court heard oral argument from Bank’s counsel on January 31, 2018. 

Given James Jr.’s failure to file a response to Bank’s motion, his counsel was 

prohibited from arguing pursuant to Local Rule W1035.2(a)(3)(b).

4

 In an 

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 This rule reads as follows:

(2) Filing and Service requirements for Briefs in opposition 

to the Motion for Summary Judgment.

(a) Within thirty (30) days of service of the moving party’s Motion 

and Brief, a party to whom a Motion for Summary Judgment is 

directed shall file a Brief in opposition, unless that party has 

requested and obtained an Order of court granting leave to 

supplement the record pursuant to Pa.R.C.P. 1035.3, in which 

event the court shall set a briefing schedule. If an Order granting 

such leave is not obtained, there shall be no extension of the thirty 

(30) day period for filing the Brief or continuance of the argument 

to allow supplementation of the record.

Local Rule W1035.2(a)(2)(a)

4

 This rule reads as follows:

(3) Sanctions. . . . (b) If a non-moving party shall fail to comply 

with the requirements of this rule, that party shall not be 

permitted to present any oral argument.

Local Rule W1035.2(a)(3)(b)
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order dated February 14, 2018, the trial court entered summary judgment in 

favor of Bank on two grounds. Procedurally, James Jr. did not file a timely 

brief in opposition to Bank’s motion. Substantively, no issues of material fact 

existed as to (1) the validity of the mortgage, (2) James Jr.’s intent to 

mortgage James Sr.’s property, (3) James Sr.’s assertion of defenses, (4) the 

mortgage being in default, and (5) the amount of damages. James Jr. 

appealed. James Jr. and the trial court complied with Pa.R.A.P. 1925.

On appeal, James Jr. states the following questions for our review:

A. Whether the Lower Court erred in granting summary judgment 

when it asserted there was no issue of material fact as to 

[James Jr.’s] ownership of the property although both parties 

stated that [James Sr.] was owner?

B. Whether the Lower Court erred when it determined [James Jr.] 

could encumber [James Sr.’s] property under a mortgage even 

though he was not an owner?

C. Whether the Lower Court erred when it asserted that codefendant [James Sr.] only generally denied [Bank’s]

allegations in his response, thereby allowing summary 

judgment for lack of specific denials?

James Jr.’s Brief at 4.

Generally:

[w]e review an order granting summary judgment for an abuse of 

discretion. Our scope of review is plenary, and we view the record 

in the light most favorable to the nonmoving party. A party 

bearing the burden of proof at trial is entitled to summary 

judgment “whenever there is no genuine issue of any material fact 

as to a necessary element of the cause of action or defense which 

could be established by additional discovery or expert report[.]” 

Pa.R.C.P. No. 1035.2(1). In response to a summary judgment 

motion, the nonmoving party cannot rest upon the pleadings, but 
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rather must set forth specific facts demonstrating a genuine issue 

of material fact. Pa.R.C.P. No. 1035.3.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) 

(some internal citations omitted). Specifically, “[t]he holder of a mortgage is 

entitled to summary judgment if the mortgagor admits that the mortgage is 

in default, the mortgagor has failed to pay on the obligation, and the recorded 

mortgage is in the specified amount.” Id. at 465.

James Jr.’s issues present claims of trial court error and abuse of 

discretion in granting Bank’s summary judgment motion where genuine issues 

of material fact are in dispute regarding his ownership of the Property, the 

validity of the Mortgage, and the nature of James Sr.’s denial. James Jr.’s

Brief at 9–10. Upon review, we conclude that James Jr. is not entitled to relief.

Pa.R.C.P. 1035.3 sets forth the procedure for a party’s response to a 

motion for summary judgment, and the potential consequence of failure to 

respond. It states, in pertinent part, as follows:

(a) Except as provided in subdivision (e), the adverse party may 

not rest upon the mere allegations or denials of the 

pleadings but must file a response within thirty days after 

service of the motion[5]identifying

(1) one or more issues of fact arising from evidence 

in the record controverting the evidence cited in 

support of the motion or from a challenge to the 

credibility of one or more witnesses testifying in 

support of the motion, or

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5

 Local Rule W1035.2(a)(2)(a) mirrors this thirty-day response requirement.
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(2) evidence in the record establishing the facts 

essential to the cause of action or defense which the 

motion cites as not having been produced.

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(d) Summary judgment may be entered against a party who does 

not respond.

Pa.R.C.P. 1035.3(a)(1)–(2), (d) (emphasis supplied). Thus, the non-moving 

party bears an affirmative duty to respond to a motion for summary judgment, 

and if that party does not respond, the trial court may enter summary 

judgment on that basis. See Harber Philadelphia Center City Office Ltd. 

V. LPCI Ltd. Partnership, 764 A.2d 1100 (Pa. Super. 2000) (“If the nonmoving party does not respond, the trial court may grant summary judgment 

on that basis.” (citing Pa.R.C.P. 1035.3(d)).

In the instant case, James Jr. failed to respond to Bank’s motion for 

summary judgment, despite the clear legal authority obligating him to do so. 

The trial court did not rule on Bank’s motion until two and one-half months 

after Bank filed it, well beyond the thirty-day deadline for James Jr. to file a 

response. Under these circumstances, we conclude that the trial court did not 

err or abuse its discretion in entering summary judgment in favor of Bank. 

Pa.R.C.P. 1035.3(d). Accordingly, we affirm the judgment of the trial court.6

Judgment affirmed. Application to Strike denied.

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6

 Bank has filed an application to strike the deposition of James Sr. submitted 

by James Jr. as a supplemental record. Application to Strike, 8/17/18. In 

light of our disposition of this appeal, we deny the application as moot.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/30/2018