J-A02038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CITI MORTGAGE, INC. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RANDY ROCCO

Appellant No. 857 EDA 2014

Appeal from the Order February 18, 2014

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2009 13417

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

JUDGMENT ORDER BY PANELLA, J. FILED APRIL 07, 2015

Appellant, Randy Rocco, appeals pro se from the order entered 

February 18, 2014, by the Honorable Wallace H. Bateman, Court of Common 

Pleas of Bucks County, which entered summary judgment in favor of 

Appellee, CitiMortgage, Inc., in the underlying mortgage foreclosure action. 

We affirm. 

We briefly set forth the uncontested facts of this case as follows. On 

January 7, 2003, Rocco executed a mortgage on property located at 224 

Creekwood Drive, Feasterville Trevose, Pennsylvania 19053. In 2007, the 

mortgagee, ABN AMRO Mortgage Group merged with CitiMortgage. Rocco 

defaulted on the mortgage in 2009. On December 21, 2009, CitiMortgage 

moved to foreclose on the property as successor by merger. In his Answer 

to the Complaint, Rocco generally denied the averments of default. 
J-A02038-15

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Citi Mortgage filed a Motion for Summary Judgment. Rocco filed a 

response, as well as a Cross-Motion for Summary Judgment in which he 

raised several allegations of fraud. The trial court entered an order granting 

CitiMortgage’s motion for summary judgment. This timely pro se appeal 

followed. 

We review a challenge to the entry of summary judgment as follows:

[We] may disturb the order of the trial court only where it is 

established that the court committed an error of law or abused 

its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule 

states that where there is no genuine issue of material fact and 

the moving party is entitled to relief as a matter of law, 

summary judgment may be entered. Where the nonmoving 

party bears the burden of proof on an issue, he may not merely 

rely on his pleadings or answers in order to survive summary 

judgment. Failure of a non-moving party to adduce sufficient 

evidence on an issue essential to his case and on which he bears 

the burden of proof establishes the entitlement of the moving 

party to judgment as a matter of law. Lastly, we will review the 

record in the light most favorable to the nonmoving party, and 

all doubts as to the existence of a genuine issue of material fact 

must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) 

(citation omitted). 

In actions for in rem foreclosure due to the defendant’s failure to pay a 

debt, summary judgment is proper where the defendant admits that he had 

failed to make payments due and fails to sustain a cognizable defense to the 

plaintiff’s claim. See Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d 
J-A02038-15

- 3 -

855, 858 (Pa. Super. 2005); First Wis. Trust. Co. v. Strausser, 653 A.2d 

688, 694 (Pa. Super. 1995).

On appeal, Rocco has distilled the 13 issues raised in his Rule 1925(b) 

statement into five claims. Rocco’s pro se brief is at times difficult to 

decipher, and often makes sweeping claims that are ultimately 

unsubstantiated. The trial court, in its May 12, 2014 opinion, has done an 

admirable job of parsing Rocco’s claims and disposing of the arguments on 

the merits. We have reviewed Rocco’s brief, the relevant law, the certified 

record, and the well-written opinion of Judge Bateman. Having determined 

that the trial court’s opinion ably and comprehensively disposes of Rocco’s 

issues on appeal, with appropriate reference to the record and without legal 

error, we will affirm based on that opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015
judgment to Appellee, we provide a brief background of the Motion to Strike filed by Appellee 

While not relevant to this appeal of our February 18, 2014 Order granting summary 

10 of Appellee's Complaint. 

matter. Appellant merely provided "Denied" to the averments contained in paragraphs 3 through 

paragraphs I and 2 of the Complaint regarding the names and addresses of the parties to this 

May 12, 20 I 0, Appellant filed an Answer to the Complaint wherein Appellant "Admitted" 

principal and interest were due and unpaid for August 1, 2009 and each month thereafter. On 

Mortgage Foreclosure alleging the mortgage was in default because monthly payments of, 

. 

Pennsylvania 19053 (the "Property"), On December 21, 2009, Appellee filed its Complaint in 

stun of$220,000.00 for the property located at 224 Creekwood Drive, Feasterville Trevose, 

On January 7, 2003, Appellant executed a mortgage and promissory note in the principal· 

Il. PROCEDURAL AND FACTUAL BACKGROUND 

Procedure 1925(a), we file this Opinion in support of this Court's ruling. 

judgment in this mortgage foreclosure action. Pursuant to Pennsylvania Rule of Appellate 

on February 18, 2014, granting PlaintiffCiti Mortgage, Inc. (herein "Appellee") summary 

Randy Rocco, pro se (herein "Appellant") has appealed the Order entered by this Court 

I. INTRODUCTION 

OPINION 

... RANDY ROCCO, 

v. 

cm MORTGAGE, INC., No. 2009-13417 

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

CIVIL ACTION 

.,, 

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failed to provide evidence to support his claims. On February J 8, 20 I 4, we issued an Order 

allegations therein, we determined that there was no genuine issue of material fact as Appellant 

Statement Various responsive pleadings followed thereafter. Upon review of the filings and the 

• 

allegations of fraud, which is also the basis for a nwnber of issues raised in Appellant's Concise 

Judgment and a Cross-Motion for Summary Judgment in which Appellant raised several 

existed. On September 9, 2013, AppeUant filed his Response to Appellee's Motion for Summary 

allegations of the Complaint were uncontroverted and therefore, no genuine issue of material fact 

On August 22, 2013, Appellee filed its Motion for Summary Judgment claiming that the 

inappropriate for B.9.~.C.P. 208.3(b) disposition. Therefore, the motion was not ripe for the 

Court's review and never decided by the Court. 

procedurally defective as it did not contain a Praecipe for Determination and was therefore 

responded to Appellee's Reply on June 26, 2013. However, Appellant's Motion was 

24, 2013, Appellee filed a Reply to Appellant's Motion on June 11, 2013, and Appellant 

Strike, and the parties filed various responses thereafter. We issued an Order on May 13, 2013 

granting Appellee' s Motion to Strike. 

The docket notes that Appellant filed a Motion for Leave to File a Counterclaim on May 

Complaint and a Praecipe to Discontinue and End this action. On January 8, 2013, Appellee 

filed a Motion to Strike the foregoing praecipes, alleging that they were filed erroneously due to 

an inadvertent clerical error. On January 18, 2013, Appellant filed a Reply to the Motion to 

active status on June 28, 2012. On July 18, 2012, Appellee filed a Praecipe to Withdraw the 

of on Appeal. The docket reflects approximately two years of inactivity, which resulted in a 

termination notice from this Court under B.C.R.J.A. 29. Appellee thereafter filed a certificate of 

as it was addressed numerous times in Appellant's Concise Statement of the Matters Complained 

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7. Was it error to grant CITI's motion for summary judgment when genuine 

issues of fact exist regarding that: 

(a) All documents submitted by Plaintiff are forgeries or otherwise 

fraudulent. 

6. Whether the trial court abused his discretion and/ or erred as a matter of law in 

granting sununary judgment to appellee, without allowing plaintiff any 

discovery [?] 

5. Whether the trial court erred as a matter oflaw, abused its discretion and 

committed reversible error in excluding Appellants [sic] counteflaims of 

fraud and negligence against Appellees[?] 

3. Did not the lower court abuse its discretion, err as a matter oflaw and violate 

appellant's rights to due process under the Federal and state constitutions by 

overruling appellant's objection because of fraud to said motion to strike in 

paragraph one[?] 

4. Whether the trial court erred as a matter of law, abused its discretion and 

committed reversible error granting summary judgment to cm who is 

purporting to be foreclosing on Rocco's Property without standing to do so 

and whether the lower court furthered [sic] erred as a matter of law in 

permitting the Plaintiff, cm MORTGAGE, INC., who after filing a 

Foreclosure Complaint In Rem on December 21, 2009 purported to change 

procedure into one of equity causing prejudice to Rocco, over his objection[?] 

2. Whether the Due Process Clause of the US Constitution's Fourteenth 

Amendment requires that the Appellant be afforded an opportunity to· be heard 

"orally" on the substance of the said motion to strike in paragraph one, and 

what, at a minimum, must that "hearing" entail? 

Appellant has raised thirteen matters on appeal. They are as follows verbatim: 

I. Did the Trial Court err as a matter of law and abuse its discretion in granting 

cm MORTGAGE, INC. 's, (hereinafter "CITI''), Motion to Strike and 

Dismiss Praecipe To Withdraw The Complaint and Mark the Matter 

Discontinued And Ended Without Prejudice where Appellee's petition failed 

to state a claim upon which relief may be granted[?] 

m. ISS~.§ 

granting Appellee's Motion for Summary Judgment, which is the basis of this appeal. Appellant 

filed his Notice of Appeal to the Superior Court on March 17, 2014. 

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12. The Affidavit submitted by CITI is hearsay and should have been stricken in 

its entirety(.] 

11. Did the trial court err as a matter of law where, for the purpose of summary 

judgment, it failed to view all evidence in the light most favorable to Plaintiff 

and to consider objective circumstantial evidence showing that Defendants 

committed fraud[?] 

10. Where the Counter-Complaint alleges fraudulent procedural actions by CITI 

may the trial court enter a summary judgment based upon documents before 

the fact finder determines the disputed factual i,sue of fraud in the 

procurement[?] 

9. The trial court erred when it entered summary judgment (in] em's favor on 

its claims when there exists evidence of fraud because Loan officer Sharon 

Grove as a notary cannot sign the mortgage docwnent for the mortgagee and 

as a witness to her own purported sworn certification on the same page an 

[sic] then notarize her own signature. 

8. The trial court erred when it entered summary judgment [in] CITI's favor on 

its claims when there exists evidence of fraud because Loan officer Sharon 

Grove as a notary cannot sign the note document for the note and as a witness 

to her own purported sworn certification on the same page an [sic] then 

notarize her own signature.' · 

(b) The document purported to [be] the Mortgage is a forgery) a false and 

fraudulent document that is void and cannot support this statutory 

foreclosure action as a matter of law. 

(c) The document purported to [be] the Note is a forgery, a false and 

fraudulent document that is void and cannot support this statutory 

foreclosure action as a matter of1aw. 

(d) There is no "valid mortgage" brought with this complaint. Pa. R. Civ. P. 

1147. 

(e) cm is a servicer, not a mortgagee. 

(f) The original debt to mortgage the subject property was extinguished and 

the Lender was paid. 

(g) Rocco is the true and rightful owner of the subject property 224 

Creekwood Drive, Feasterville, PA 19053. 

(h) CITI is foreclosing on Rocco's Property without standing to do so and 

on 'December 21, 2009 the Plaintiff, cm MORTGAGE, INC. filed a 

Foreclosure Complaint In Rem. 

(i) cm failed to properly authenticate documents according to the law, its 

agent'sAffidavit is Hearsay. 

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Ins. Co., 947 A.2d 206, 210 (Pa Super. 2008) (internal citations omitted). The Court is unable to 

and writes an opinion pursuant to thatsupposition the issues [areJ still waived." Jlricko v. Geico 

Statement at all. Even if the trial court correctly guesses the issues Appellants raise on appeal 

a1Jow the Court to identify the issues raised on appeal is the functional equivalent to no Concise 

The Superior Court has also explained that 11a Concise Statement which is too vague to 

Review, 494 A.2d 1081, 1086 (1985)). 

.. Motors Corp., 567 A.2d 680, 682 (1989) (quoting Vann v. Com, Unemployment Comp. Bd; of 

I 

risk that [her] lack of expertise and legal training will prove [her] undoing."' O'Neill v. Checker 

choosing to represent [herself] in a legal proceeding must, to some reasonable extent, assume the 

Id Furthermore, the Superior Court has stated that "while this court is willing to liberally 

construe materials filed by a prose litigant, we note that appellant is not entitled to any particular 

advantage because she lacks legal training. As our Supreme Court has explained, 'any layperson 

"Appellant has chosen to proceed pro.se and he cannot expect our court to act as his attorney." 

representation does not relieve appellant of his duty to properly raise and develop his appealable 

claims." First Union Mortgage Corp. v. Frempong, A.2d 327, 337 (Pa. Super. 1999). 

We are cognizant of the fact that Appellant is a prose party. However, "pro se 

Complained of on Appeal. 

attempt to address the numerous issues raised in Appellant's Concise Statement of the Matters 

We note that Appellant takes the opportunity to raise issues not relevant to an appeal of 

this Court's February 18, 2014 Order grantingAppelleesum.mary judgment. Nonetheless, we 

IV. ANALYSIS OF ISSUES 

13. THE TRIAL·COURT ERRED BY GRANTING THE APPELLEE'S 

MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES 

OF MATERIAL FACTS EXIST. 

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state a claim upon which relief may be granted is not meritorious. At Concise Statement number 

In Concise Statement number 1, Appellant's complaint that the Motion to Strike failed to 

entitled to any particular advantage because he lacks legal training. 

the matter by written order. We again note that while Appellant is a pro se litigant, he is not 

Therefore, this Court was not required to provide oral arguments and was permitted to dispose of 

Motion, Appellant stated that he "requests that the case be dismissed and requests a hearing 

before any determination of his rights," Although Appellant may have desired oral arguments, 

Appellant's request failed to ~atish, the praecipe requirement ofB.C.R.C.P. 208.3(b)(6). 

subsection (2) hereof, the matter shall be disposed ofby written order ...• " Appellee did not 

request oral argument via praecipe when it filed its Motion to Strike. In his Response to the 

. . moving party in the praecipe, or by any other party within the 10-day period specified in 

B.C.R.C.P. 208.3(b)(6) states that "[ujnless oral argument has been requested by the 

rules. 

Amendment. However, neither party requested oral arguments via praecipe as required by local 

While not relevant to this appeal of the grant of a Motion for Summary Judgment, we 

address the various issues Appellant raises with regard to the Motion to Strike filed by Appellee. 

In his Concise Statement number 2, Appellant questions his right to be heard orally with regard 

to the Motion to Strike filed by Appellee pursuant to the Due Process Clause of the Fourteenth 

A. Motion to Strike 

matters raised by Appellant 

Concise Statement, we do not offer a response. We attempt to specifically address all other 

determine the particular issues raised in Appellant's Concise Statement number 4 and 12. 

Pursuant to the legal authority cited above regarding prose litigants and vague issues in a 

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therefore inappropriate for B.C.R.C.P. 208.3(b) disposition. Therefore, the motion was not ripe 

Motion was procedurally defective as it did not contain a Praecipe for Determination and was 

2013, and Appellant responded to Appellee's Reply on June 26, 2013. However, Appellant's 

File a Counterclaim on May 24, 2013, Appellee filed a Reply to Appellant's Motion on June 11, 

disposition pursuant to this rule," The docket notes that Appellant filed a Motion for Leave to 

B.C.R.C.P. 208.3(b)(2) requires that "when the matter is at issue and ready for decision, 

the moving party 6n the application shall, by praecipe, order the same to be submitted for 

excluded and, in fact, never ruled upon Appellant's counterclaims. 

a matter of law, abused its discretion and committed reversible error in excluding Appellants 

[sic] counterclaims of fraud and negligence." Appellant misstates the facts as this Court never 

Counterclaim. In Concise Statement number 5, Appellant questions whether this Court "erred as 

here we address Appellant's contentions with regard to his Motion for Leave to File a 

Although not relevant to this appeal of the grant of a Motion for Summary Judgment, 

B. Motion for Leave to FUe a Counterclaim 

mistakenly filed. It was within this Court's power and jurisdiction to grant the Motion to Strike. 

Further, we specifically address Appellant's contentions of fraud below in the section regarding 

our grant of summary judgment as Appellant raised the same claims in his responsive pleadings 

to Appellee's Motion for Summary Judgment. 

In this matter, Appellee utilized the Motion to Strike in order to strike praecipes it alleges were 

3, Appellant also questions whether this Court abused its discretion, erred as a matter of law, or 

violated his right to due process by "overruling appellant's objection because of fraud to said 

motion to strike .•. /' Appellant is misguided in his understanding of the Motion to Strike. A 

Motion to Strike is a procedural mechanism parties may file to remove part or all ofa pleading. 

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I We note the high standard required for counterclaims in mortgage foreclosure actions. Pa.R.C.P. 1148 provides 

that "[a] defendant may plead a counterclaim which arises from the same transaction or occurrence or series of 

transactions or occurrences from which the plaintiff's cause of action arose," 

( 1) whenever there is no genuine issue of material fact as to a necessary element 

of the cause of action or defense which could be established by additional 

discovery or expert report; or 

rendered as a matter of law: 

Under Pennsylvania Rule of Civil Procedure 1035.2, summary judgment may be 

2006);citing Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000). 

I 

prejudice, bias, or ill will." Chaney v. Meadville Medical Center, 912 A.2d 300, 306 (Pa. Super. 

"An abuse of discretion exists when the trial court has rendered a judgment that is manifestly 

unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, · 

its discretion." Universal Health Services, Inc. v. PIGA, 884 A.2d 889, 892 (Pa. Super. 2005). 

Super. 2005). The well-established standard of review demonstrates that "the trial court's order 

will be reversed only where it is established that the court committed an error of law or 'abused 

Universal Teleservices, Arizona, LLC v. Zurich American Ins. Co., 879 A.2d 230, 232 (Pa. 

The scope of review of an order granting or denying summary judgment is plenary. 

Here, we separately address the summary judgment issues raised by Appellant's Concise 

Statement of the Matters Complained of on Appeal numbers 6 through 1 I and 13. 

error as Appellant's motion never reached the Court for determination. 

C. ~ummarv Judgment waif.Appropriately Granted 

for the Court's review and never decided by the Court. Consequently, Appellant did not obtain 

leave to file the counterclaim and never attempted to re-file the motion with the required 

praecipe.1 

Thus, this Court did not err as a matter of law, abuse its discretion, nor commit reversible 

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Cercone, 386 A.2d 1, 4 (1978). Further, "in mortgage foreclosure actions, general denials by 

[responding party] must know whether a particular allegation is true or false," Cercone v. 

specific denial of factual allegations contained in a complaint when it is clear that the 

However, a responding party "may not rely upon Rule 1029( c )(I) to excuse a failure to make a 

sufficient to form a belief as the truth of an avennent shall have the effect of a denial." 

by a party that after reasonable investigation the party is without knowledge or information 

by necessary implication." Pa.R.C.P. 1029(b). Pa.R.C.P. 1029(c)(l) provides that "[a] statement 

pleading to which a responsive pleading is required are admitted when not denied specifically or 

summary judgment in favor of Appellee because no material facts are at issue. "A verments in a 

Here, this Court neither erred as a matter of Jaw nor abused its discretion in granting 

Services ofC/earjie/d, Inc. v. Local 2665, 431 A.2d23, 27 (Pa. Super, 1981). 

material fact that would warrant submitting the case to the trier of fact Community Medical 

evidence, which would be admissible at trial, showing that there is a genuine issue as to a 

summary judgment should be granted to the movant unless the opposing party offers competent 

party and accept as true all well-pleaded facts in the pleadings together with al1 reasonable 

inferences there from favoring the non-moving party. Ryan v. Asbestos Corp. Ltd, 829 A.2d 686 

(Pa. Super. 2003). The burden is on the moving party, but it has long been recognized that 

function of the Court is to examine the record in the light most favorable to the non-moving 

to relief as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010). The 

clear of doubt, that there are no genuine issues of material fact, and the moving party is entitled 

Sununary judgment is appropriate when the moving party establishes that the case is free and 

(2) if after the completion of discovery relevant to the motion ... an adverse party 

who will bear the burden of proof at trial has failed to produce evidence of facts 

essential to the cause of action or defense which in a jury trial would require the 

issues to be submitted to a jury. 

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Grove's notarial seal. AppeJiee has pointed out that Sharon Grove was not notarizing her own 

. Motion, which appears to contain Appellant's signature, Sharon Grove's signature, and Sharon 

him and therefore a forgery. Appellant attached a copy of the mortgage instrument to his Crossalleged that the purported mortgage instrument was not a true copy of any document executed by 

that Sharon Grove, an agent of Mortgagee, notarized her own signature. Furthermore, Appellant 

issue of material fact as Appellant failed to provide evidence to support his claims. Appellant 

alleged that the mortgage and note are fraudulent documents. In particular, Appellant claimed 

Concise Statement. Upon review of these allegations, we determined that there was no genuine 

several allegations of fraud, which is also the basis for a number of issues raised in Appellant's 

Appellant submitted a Cress-Motion for Summary Judgment in which Appellant raised 

denials essentially constituted admissions. See Strausser, 653 A.2d at 692. 

have sufficient knowledge on which to base a specific denial. Therefore, Appellant's general 

mortgage entered into by Appellant, default by Appellant, and amounts due an~ unpaid under the 

mortgage. Appellant merely provided "Denied" to these averments despite being in a position ·to 

Appellee's Foreclosure Complaint, which included averments regarding the existence of a 

In his Answer, Appellant generally denied paragraphs three (3) through ten (10) of 

averments, general denials essentially constitute admissions. See Strausser, 653 A.2d at 692. 

524 A.2d 951, 952 (1987). Thus, in the absence of any evidence to refute the moving party's 

that apart from the moving party, "[mortgagors] are the only parties who would have sufficient 

knowledge on which to base a specific denial. 0 New York Guardian Mortgage Corp. 'V, Dietzel, 

First Wisconsin Trust Co .. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995). The rationale is 

mortgagors that they are without information sufficient to form a belief as to the truth of 

avennents as to the principal and interest owing must be considered an admission of those facts." 

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signature. Rather, she was notarizing the signature of Appellant, which is evident from the 

statement contained prior to her notarial seal, It states that before her personally appeared Randy 

L. Rocco, the Appellant in this matter, "whose name is subscribed to the within instrument and 

acknowledged that he executed the same for the purposes therein contained. In witness whereof I 

hereunto set my hand and official seal," Appellant has failed to offer any competent evidence, 

which would be admissible at triaJ, to support his contentions of fraud and forgery. See 

Community Medical Services of Clearfield, Inc. v. Local 2665, 431 A.2d 23, 27 (Pa. Super. 

1981). Appellant also argued that the "original debt to mortgage the subject property was 

extinguished and the Lender was paid." Again, Appellant failed to provide evidentiary support 

for this contention, and therefore, no genuine issue of material fact was established. 

Finally, Appellant also questions whether this Court's grant of summary judgment was an 

abuse of discretion and/or error as a matter of Jaw because he was not allowed any discovery. 

First, it is important to note that the Complaint in Mortgage Foreclosure was first filed on 

December 21, 2009, and AppeUant filed his Answer on May 12, 2010. It was not until February 

18, 2014 that we granted Appellee' s Motion for Summary Judgment Appellant was afforded 

ample time and opportunity to conduct discovery to support his allegations of fraud, satisfaction 

of the mortgage, or any other claim. Moreover, summary judgment may be granted "whenever 

there is no genuine issue of material fact as to a necessary element of the cause of action or 

defense which could be established by additional discovery .. ,." Pa.R.C.P. 1035.2. Thus, 

discovery does not need to be completed in order for this Court to rule on Motions for Summary 

Judgment. See Pa.R.C.P. § 1035.2(1). Nonetheless, Appellant's claim that additional discovery 

is required is inadequate because Appellant has not provided this Court with explanation as to 

what discovery is needed. 

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Date: tJ!lq /'vf WI'/ 

BYTIIECOURT: 

V. CONCLUSION 

For the foregoing reasons, this Court perceives that the issues of which Appellant has 

complained in this appeal are without merit, and that this Court's Order granting summary 

judgment to AppeJlee was supported by both the law and the record in this case. We respectfully 

request the Superior Court to affirm this Court's decision. 

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