J-S47025-14

2015 PA Super 79

EMC MORTGAGE, LLC, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT D. BIDDLE,

Appellant No. 2894 EDA 2013

Appeal from the Order Entered August 26, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): September Term, 2011, No. 03840

BEFORE: MUNDY, OLSON AND WECHT, JJ.

OPINION BY OLSON, J.: FILED APRIL 15, 2015

Appellant, Robert D. Biddle, appeals from the order entered on August 

26, 2013, granting a motion to reassess damages filed by Appellee, EMC 

Mortgage, LLC (“EMC”). Upon careful consideration, we vacate the order 

and remand with instructions.

The trial court summarized the facts and procedural history of this 

case as follows:

The instant matter was initiated by [EMC] on 

September 30, 2011, when it filed a mortgage foreclosure 

complaint against Appellant. [Appellant failed to file a 

pleading in response to EMC’s mortgage foreclosure 

complaint.] After more than a year of conciliation efforts, 

[EMC] entered a default judgment via praecipe on February 

19, 2013 [in the amount of $60,264.10]. 

[EMC] filed a motion to reassess damages on June 6, 

2013, stating that additional costs and interest had accrued 

since the entry of judgment, and asking [the trial court] to 

modify the damages accordingly. Appellant filed an answer 
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on June 26, 2013, arguing that the mortgage foreclosure 

judgment was final when entered, and thus, damages were 

fixed at that point in time. Upon consideration of [EMC’s] 

motion and [] Appellant’s response thereto, the [trial court] 

granted the motion to reassess damages through an order 

dated August 6, 2013, and docketed on August 7, 2013, 

thereby allowing the amendment of [EMC’s] writ of 

execution to reflect an updated, total damages amount of 

$78,115.15 [including interest at six percent annum]. 

Trial Court Opinion, 11/5/2013, at 1-2 (record citations, superfluous 

capitalization, and parenthetical omitted). This timely appeal resulted.1

Appellant presents the following issues for our review:

A. Did the lower court abuse its discretion in amending the 

default judgment; in the absence of any claim that the 

allegations in the complaint were erroneous or that the 

judgment was entered by mistake at the time it was 

taken or that any miscarriage of justice would occur if 

the judgment was not amended; when there was no 

admissible evidence in the record that supported the 

____________________________________________

1 The reassessed judgment was granted by order dated August 6, 2013 and 

docketed on August 7, 2013. The order states that EMC’s motion to 

reassess damages is granted “and that the writ is amended to reflect a total 

judgment amount, including principal balance, interest through July 1, 2013, 

late charges, legal fees, cost of suit and title, property inspections, mortgage 

insurance premium, and escrow deficit of $78,115.71, plus interest at six 

percent annum.” Trial Court Order, 8/7/2013, at 1. According to the 

docket, notice of the judgment was sent to all of the parties by the 

Prothonotary, pursuant to Pa.R.C.P. 236, on August 26, 2013. Appellant 

filed a notice of appeal on September 25, 2013, or within 30 days after 

notice of the judgment was sent by the Prothonotary. Thus, the appeal was 

timely. See Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1122 

(Pa. Super. 2004) (citation omitted) (“Notice of appeal, filed within thirty 

days after the entry of the judgment and the Rule 236(b) notice, was 

timely.”). On September 27, 2013, the trial court ordered Appellant to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Appellant complied timely on October 17, 2013. On November 5, 

2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
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higher judgment amount; and when amending the 

judgment simply enabled EMC to circumvent the 

requirement in Pa.R.C.P. 1037(b)(1) that damages on a 

default judgment, which cannot be calculated from the 

allegations in the complaint, be established by a trial 

limited to damages[?]

B. Did the lower court err as a matter of law when it failed 

to hold a hearing or use other means to develop a record 

to resolve disputed factual issues and when it preferred 

EMC’s unverified version of the facts over [Appellant’s] 

answer to the motion with no evidentiary basis for doing 

so[?]

C. Did the lower court err as a matter of law by increasing 

the amount of the original judgment to include interest 

allegedly accrued after the date the complaint was filed, 

and before the original judgment was entered, in the 

absence of a [n]ote or anything else in the record 

entitling EMC to any interest or setting forth an interest 

rate[?] Did the court further err by adding other items of 

damages, allegedly incurred after the complaint was 

filed, in the absence of any admissible evidence of their 

existence[?]

D. Did the lower court err as a matter of law by calculating 

the amounts that allegedly came due after the date the 

default judgment was originally entered as if the 

judgment had never been entered, failing to discriminate 

between pre and post judgment amounts, and by 

allowing EMC to include items post judgment to which it 

was not entitled as a matter of applicable substantive 

law[?] 

Appellant’s Brief at 10-12 (suggested answers omitted).

Initially, we must determine whether this Court has jurisdiction to 

consider the merits of Appellant’s appeal. “We address this issue first 

because the appealability of an order directly implicates the jurisdiction of 

the court asked to review the order.” Mother's Rest. Inc. v. 
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Krystkiewicz, 861 A.2d 327, 331 (Pa. Super. 2004) (citation omitted). The 

trial court recommends quashing this appeal on grounds that the order 

granting the motion to reassess damages was interlocutory, and not subject 

to an exception2or to an appeal as of right.3 Trial Court Opinion, 

11/5/2013, at 2-4. More specifically, the trial court determined that the 

order reassessing damages “was not final in nature, as it was issued prior to 

satisfaction of the judgment.” Id. at 3. The trial court maintained that the 

order is not collateral, necessitating immediate appellate review, because 

Appellant may continue to contest the amount of damages until satisfaction 

or “can still stay any future sheriff’s sale of the property and, if that fails, 

may seek to set aside said sale.” Id. 

Moreover, in January 2014, after the appeal was taken, this Court 

entered a per curiam order directing Appellant to respond to a rule to show 

cause why the appeal should not be quashed for lack of jurisdiction for 

failing to file a petition to strike or open the default judgment. On February 

10, 2014, Appellant filed a statement in response to our Court’s order, 

arguing that he was “not appealing from the entry of a default judgment 

against him, but is appealing the separate and subsequent order amending 

____________________________________________

2

 See Pa.R.A.P. 312 (interlocutory appeal by permission); Pa.R.A.P. 313 

(collateral orders). 

3

 See Pa.R.A.P. 311 (interlocutory appeal by right).
J-S47025-14

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the judgment to increase the damages.” Appellant’s Statement in Response 

to Superior Court Directive, 2/10/2014, at *4.

Upon review of the applicable law and the procedural posture of this 

case, we conclude that the order at issue is a final, appealable order and 

Appellant was not required to file a petition to strike or open the reassessed 

judgment. “In this Commonwealth, an appeal may only be taken from: 1) a 

final order or one certified by the trial court as final; 2) an interlocutory 

order as of right; 3) an interlocutory order by permission; or 4) a collateral 

order.” Mother's, 861 A.2d at 331 (citation omitted). “To constitute a final 

order, the order appealed from must have disposed of all claims and of all 

parties, have been defined as final by statute, or have been certified as final 

by the trial court.” Id., citing Pa.R.A.P. 341(b). 

Default judgments generally are governed by the Pennsylvania Rules 

of Civil Procedure and are entered by prothonotaries and without judicial 

involvement. Gotwalt v. Dellinger, 577 A.2d 623, 625 (Pa. Super. 1990). 

Such judgments are not judicial orders and are not subject to an immediate 

appeal after their entry; rather, to obtain relief, the party against whom the 

judgment was entered may either file a petition to strike the default 

judgment or file a petition to open the default judgment. Mother's, 861 

A.2d at 336. Once a court of common pleas rules on one of these petitions, 

then the aggrieved party has a right to an appeal to a higher court pursuant 

to Pennsylvania Rule of Appellate Procedure 311(a)(1). See Pa.R.A.P. 
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311(a)(1) (granting an appeal as of right from any “order refusing to open, 

vacate or strike off a judgment”). 

Here, however, the situation is markedly different from the 

conventional case. EMC initially obtained a default judgment on February 

19, 2013. Thereafter, EMC, the party in whose favor judgment was 

originally entered, moved on June 6, 2013 to reassess its favorable 

judgment by adding additional amounts to reflect sums allegedly expended 

in obtaining the judgment or subsequent thereto. Appellant, on June 26, 

2013, filed his response to EMC’s motion. In August 2013, the trial court 

entered an order directing the Prothonotary to amend the judgment to 

reflect additional principle, fees, and interest as requested by EMC. 

Appellant’s June 26, 2013 response did not contest the underlying default 

judgment, but simply challenged the supplemental amended amounts 

requested by EMC that were ultimately reduced to judgment at the trial 

court’s direction. In this particular case, judgment was not entered 

ministerially by the Prothonotary but, instead, the trial court ordered that an 

amended judgment be entered. In such an instance, Appellant was not 

required to file a petition to strike or open the judgment. Moreover, the 

trial court granted the only relief requested by EMC and directed the entry of 

judgment over Appellant’s objection. Thus, all of the claims of all of the 

parties have been finally addressed by the trial court. See Morgan Guar. 

Trust Co. of New York v. Mowl, 705 A.2d 923, 928 (Pa. Super. 1998) 

(“The order was a final, appealable order since it denied appellant the only 
J-S47025-14

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relief it then was seeking in a mortgage foreclosure action.”). Accordingly, 

the trial court’s order constituted a final order and we have jurisdiction to 

entertain Appellant’s appeal.

In his first issue presented, Appellant claims that the trial court erred 

by ordering an upward amendment of the amount of the default judgment 

based upon EMC’s unverified, reassessment motion. Appellant’s Brief at 23-

26. Relying upon Pa.R.C.P. 1037,4 Appellant contends that the trial court 

approved “an amendment of a default judgment that enabled [EMC] to avoid 

its obligation to prove its damages at trial.” Id. at 26. According to 

Appellant, EMC’s complaint in mortgage foreclosure stated it “was owed 

$60,264.10[,]” but the “complaint was devoid of any exhibit evidencing that 

____________________________________________

4 Rule 1037 of the Pennsylvania Rules of Civil Procedure provides in 

pertinent part:

Rule 1037. Judgment Upon Default or Admission. Assessment 

of Damages.

* * * * * * * * 

(b) The prothonotary, on praecipe of the plaintiff, shall 

enter judgment against the defendant for failure to file 

within the required time, a pleading to a complaint . . . for 

any relief admitted to be due by the defendant’s pleadings.

(1) The Prothonotary shall assess damages for the 

amount to which the plaintiff is entitled if it is a sum 

certain or which can be made certain by 

computation, but if it is not, the damages shall be 

assessed at a trial at which the issues shall be 

limited to the amount of the damages.
J-S47025-14

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EMC is entitled to ongoing interest in any amount[,]” “[t]he mortgage 

contains no interest rate[,]” [and,] “[t]here is no note attached as an exhibit 

to the complaint.” Id. at 27-28. Hence, Appellant argues, “the trial court 

expressly based its decision to amend the default judgment on documents 

that do not exist in the record.” Id. at 33. In sum, Appellant asserts, “it 

was an abuse of discretion for the trial court to permit EMC to take a default 

judgment on the complaint and, four months later, allow it to amend the 

default judgment, without evidence, and to thereby circumvent the 

requirement that EMC prove at trial its damages in excess of the amount 

alleged in the complaint.” Id. at 32. As such, Appellant claims that EMC 

was required to prove damages at a trial and that the trial court erred to the 

extent it permitted EMC to augment its default judgment by way of an 

unsupported motion to add interest, fees, and costs. Id. at 28-33. 

In his second issue presented, Appellant argues that EMC’s motion to 

amend the default judgment was not verified and, while the mortgage was 

attached to the motion as an exhibit and it refers to a note, the note was not 

presented. Id. at 34. Thus, Appellant contends that EMC has “submitted 

nothing [saying] that it had [a] right to interest in any amount and nothing 

setting forth a rate of interest.” Id. at 34-35. Further, Appellant claims he 

“filed a response to the motion in which he expressly and specifically denied 

all the factual allegations in [EMC’s] motion[,]” including denials “that the 

interest calculation was correct; [] that the legal fees were actually incurred 

or reasonable; [] that there were any property inspections of his house; and 
J-S47025-14

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[] that there was an escrow deficit in the amount set forth.” Id. at 35, 39-

40 (footnotes omitted). Relying upon Pa.R.C.P. 208.1-208.4, as well as local 

rule Phila.C.R.P. 208.3(b), Appellant contends the trial court failed to follow 

the proper procedure for developing a record on disputed facts. Id. at 38. 

In his third issue presented, Appellant argues “the court below relied 

upon two lines of cases.” Id. at 44. Appellant claims that the first line of 

authority, as established in B.C.Y., Inc., Equip. Leasing Associates v. 

Bukovich, 390 A.2d 276, 278 (Pa. Super. 1978), “recognized the authority 

of the court to correct errors and to conform the facts of the default 

judgment to the facts that existed at the time the judgment was entered and 

the damages originally assessed.” Appellant’s Brief at 44-45. Appellant 

argues that “[t]he other line of cases suggested in dicta that the assessment 

on the writ of execution could be amended to reflect post judgment interest 

and other post judgment amounts the plaintiff had a right to collect as 

additions to the judgment.” Id. at 45, citing Nationsbanc Mortgage Corp. 

v. Grillo, 827 A.2d 489, 493 (Pa. Super. 2003). Thus, Appellant claims:

EMC, without expressly articulating [these two lines of 

authority], asked the court for both kinds of relief. It 

alleged in its motion that when it filed its assessment of 

damages and originally took the judgment on February 19, 

2012, it had assessed the damages only for the amount 

demanded in the complaint and it further alleged that the 

amount alleged in the complaint did not reflect what it was 

due when the judgment was entered [more than one year 

after the complaint was filed]. 

In addition[,] EMC alleged in its motion that it was 

entitled to increase the judgment because it incurred 
J-S47025-14

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attorney[s’] fees and court costs and other costs and 

additional interest after the judgment was entered. 

The order entered by the court below does not 

identify the kind of relief the court provided EMC. That is, 

the order does not indicate the extent to which the original 

assessment is being amended because the original amount 

was entered in error. Nor does the order indicate the extent 

to which the assessment on the writ of execution was being 

amended to add [] post[-]judgment interest[,] costs[,] or 

other amounts, accruing after the February 19, 2013 

original assessment date, that EMC had a right to add to its 

judgment.

* * *

Pre-judgment, the mortgage controls the rights and 

obligations of the parties. Post[-]judgment, they are 

controlled by the judgment, by those mortgage provisions 

that expressly survive the judgment and by those applicable 

rules of court and statutes that provide for amounts which 

can be added to the judgment prior to execution.

Here, the trial court’s failure to distinguish between prejudgment and post[-] judgment events caused it to err as a 

matter of law in its determination of what EMC was entitled 

to include in the judgment at the time it originally took a 

default and filed its praecipe for default judgment. 

Id. at 45-49 (citations omitted; emphasis in original).

Finally, in his last issue presented, Appellant argues that once the 

default judgment was entered, the underlying mortgage was extinguished 

and merged with the judgment. Id. at 57. He contends that “[a]fter filing 

its praecipe for a default judgment, EMC is entitled to receive for the sale of 

[Appellant’s] property, only the judgment, less payments made on account 

of the judgment at the legal rate or at some other amount if provided in the 

judgment, less payments made on account of the judgment, plus record 
J-S47025-14

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costs which may be added in accordance with the applicable procedural 

rules.” Id. at 58. Citing paragraph 23 of the mortgage, Appellant concedes 

that “[t]he only provision of the mortgage that expressly survives the entry 

of judgment is the interest rate”. Id. at 59. Appellant again argues that the 

rate of interest included in the note was not provided to the court. Id. at 

59, n.20. Appellant therefore argues that the trial court erred by failing to 

parse pre- and post-judgment interest and costs because:

The interest rate that is included in the judgment, to the 

extent there is any evidence of an interest rate, is on the 

unpaid principal balance of the mortgage from the date of 

acceleration to the date of the judgment. In contrast, 

interest post[-]judgment allowed by 42 Pa.C.S.A. § 8101 is 

on the entire judgment amount.

Id. at 60. 

Our standard of review is as follows. “A judgment should only be 

stricken if the record reveals a defect on its face.” Bukovich, 390 A.2d at 

278. Here, as in Bukovich, we have a validly entered default judgment 

with only an alleged error on the amount entered. Id. “The fact that the 

judgment was entered is not the mistake and thus the entire judgment 

should not be stricken.” Id. The trial court has the power to modify a 

judgment upon the proper application to the court for amendment. Id.

(citation omitted); see also Grillo, 827 A.2d at 493 (mortgagee “had every 

right to petition the court to amend the writ of execution to include 

additional interests and costs prior to” satisfaction.); PNC Bank, N.A., v. 

Unknown Heirs, 929 A.2d 219, 227 n.3 (Pa. Super. 2007) (a motion to 
J-S47025-14

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reassess damages “invokes a trial court’s equitable power to enforce the 

underlying judgment and to grant relief until the judgment is discharged or 

satisfied.”). We review the trial court’s entry of a modified judgment for an 

abuse of discretion. Bukovich, 390 A.2d at 278. 

Based upon the foregoing legal principles, we conclude that the trial 

court enjoys the inherent power to amend a judgment until the judgment is 

discharged or satisfied.5 In this case, EMC sought amendment prior to either 

event. Thus, we discern no abuse of discretion or error of law in the trial 

court’s decision to entertain EMC’s request to reassess the default judgment. 

However, we must still assess: (1) whether the mortgage was 

extinguished, either in whole or in part, upon entry of judgment, and; (2) 

whether the trial court utilized the proper procedure for recalculating EMC’s 

damages.

As discussed below, upon entry of a default judgment the parties’ 

mortgage agreement was extinguished. Both parties and the trial court rely 

upon the Third Circuit case,6In re Stendardo, 991 F.2d 1089 (3d Cir. 

____________________________________________

5

 Relying on a waiver provision in the parties’ mortgage agreement as well 

as In re Phillips Group, Inc., 382 B.R. 876 (Bankr. W. D. Pa. 2008), EMC 

also argues that it could seek to amend the default judgment since Appellant 

waived the defects in the proceedings. Since we have determined that the 

trial court enjoyed the inherent power to amend a judgment, we need not 

examine the waiver provision at issue. 

6 We are not bound by decisions of the federal courts, but we may rely on 

them for persuasive authority. McEwing v. Lititz Mut. Ins. Co., 77 A.3d 

639, 648 n.7 (Pa. Super. 2013).
J-S47025-14

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1993), in advancing their respective positions regarding the merger of the 

mortgage with the default judgment. Thus, we will examine Stendardo

herein. The Stendardos owned residential property in Philadelphia, secured 

by a mortgage that was subsequently assigned to Federal National Mortgage 

Association (FNMA). The Stendardos later filed for bankruptcy and the 

bankruptcy court determined that FNMA was entitled to collect real estate 

taxes and insurance premiums it paid after filing a mortgage foreclosure 

action and obtaining a default judgment against the Stendardos’ property. 

The Stendardos appealed to the district court, which reversed, 

reasoning that the Stendardos’ obligations under the mortgage were merged 

into the judgment obtained in the foreclosure action:

[T]he bankruptcy court held that FNMA was entitled to 

include the Post-Judgment Expenses in its proof of claim. 

The court first held that although a mortgage merges into a 

judgment, the lien created by the mortgage remains despite 

the presence of the judgment. Accordingly, the bankruptcy 

court concluded that the doctrine of merger did not render 

null and void the mortgage terms imposing on the 

[Stendardos] the obligation to pay insurance premiums and 

real estate taxes. As a result, FNMA was allowed to add the 

Post-Judgment Expenses to the amount of its secured claim. 

In the alternative, the bankruptcy court held that even if 

such a merger occurred, FNMA could include the PostJudgment Expenses in its secured claim under a theory of 

unjust enrichment because FNMA's payments clearly 

conferred benefits upon the [Stendardos] who retained an 

independent legal obligation to pay these costs. 

The district court vacated and remanded. In order for 

mortgage terms to survive merger into a foreclosure 

judgment, it decided that the language of the mortgage 

must clearly indicate that a term or clause in an agreement 

will remain operative after a judgment is obtained. The 
J-S47025-14

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language in the Mortgage here only mentions the 

[Stendardos’] obligation to pay the relevant taxes and 

insurance premiums while the Mortgage is in effect. It does 

not provide that this obligation is to continue after a 

judgment is obtained. Based on this reasoning, the district 

court concluded that the Mortgage is unambiguous as a 

matter of law and not reasonably susceptible to the 

bankruptcy court's interpretation that the [Stendardos’] 

obligation to pay the expenses at issue extends beyond the 

date of judgment. 

* * *

The district court also held that FNMA could not rely 

on the doctrine of unjust enrichment to recover the PostJudgment Expenses because no evidence in the record 

established either that the [Stendardos] benefitted from 

FNMA's payments or that the [Stendardos] had notice that 

FNMA was making the payments and that it expected to be 

reimbursed. Accordingly, the district court refused to allow 

FNMA to include in its secured proof of claim the PostJudgment Expenses.

In re Stendardo, 991 F.2d at 1093-94 (citations, quotations and footnotes 

omitted).

In analyzing merger of a mortgage with a default judgment, the Third 

Circuit noted:

Under controlling Pennsylvania law, “[i]t is elementary 

that judgment settles everything involved in the right to 

recover, not only all matters that were raised, but those 

which might have been raised. The cause of action is 

merged in the judgment which then evidences a new 

obligation.” Lance v. Mann, 60 A.2d 35, 36 (Pa. 1948) 

(citations omitted). The doctrine of merger of judgments 

thus provides that the terms of a mortgage are merged into 

a foreclosure judgment and thereafter no longer provide the 

basis for determining the obligations of the parties. In re 

Presque Isle Apartments, 112 B.R. 744, 747 

(Bankr.W.D.Pa. 1990); see In re Herbert, 86 B.R. 433, 

436 (Bankr.E.D.Pa. 1988) (“The Debtor is, in our view, 
J-S47025-14

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correct in her assertion that ‘[t]he mortgage is merged in a 

judgment entered in a mortgage foreclosure action’ in 

Pennsylvania.”) (quoting 25 P.L.E. 85 (1960); citing Murray 

v. Weigle, 11 A. 781, 782 (Pa. 1888); Hartman v. 

Ogborn, 54 Pa. 120, 122-23 (1867)); see also In re 

Roach, 824 F.2d 1370, 1377 (3d Cir. 1987) (“In New 

Jersey, as in many states, the mortgage is merged into the 

final judgment of foreclosure and the mortgage contract is 

extinguished. As a result of this merger, there is no longer a 

mortgage....”)) (citations omitted).

For example, bankruptcy courts have consistently held 

that the doctrine of merger under Pennsylvania law entitles 

a mortgagee post-judgment to the legal rate of interest 

rather than the rate specified in the mortgage. Because the 

mortgage merges into the judgment, its terms specifying 

the contractual interest rate no longer exist to bind the 

parties. See, e.g., Presque Isle, 112 B.R. at 747; In re 

Rorie, 98 B.R. 215, 218-19 (Bankr.E.D.Pa. 1989); In re 

Smith, 92 B.R. 127, 129-31 (Bankr.E.D.Pa. 1988), rev'd on 

other grounds, Smith v. Kissell Co., 98 B.R. 708 

(E.D.Pa.1989); Herbert, 86 B.R. at 436.

There is an exception to this doctrine. Parties to a 

mortgage may rely upon a particular provision postjudgment if the mortgage clearly evidences their intent to 

preserve the effectiveness of that provision post-judgment. 

See, e.g., Presque Isle, 112 B.R. at 747 (“Once a claim is 

reduced to judgment, the legal rate of interest applies 

unless the documents evidence a clear intent to continue 

the contractual rate of interest post-judgment.”) (citing In 

re Crane Automotive, Inc., 98 B.R. 233 (Bankr.W.D.Pa. 

1989)); see also Burns Mfg. Co. v. Boehm, 467 Pa. 307, 

356 A.2d 763, 766 n.3 (1976) (parties' intent controlling in 

construing agreement); accord Robert F. Felte, Inc. v. 

White, 302 A.2d 347 (Pa. 1973). The applicability of this 

exception will determine whether the instant [m]ortgage 

clause requiring the [Stendardos] to pay the expenses at 

issue survived the [j]udgment.

In re Stendardo, supra at 1094-1095.
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Moreover, the Stendardo court examined a prior decision in 

deciphering whether contractual provisions survive the entry of judgment:

[In In re Clark Grind & Polish, Inc., 137 B.R. 172 

(Bankr.W.D.Pa. 1992),] specific language in the mortgage, 

also incorporated into the note and the asset purchase 

agreement, provided for survival of the creditor's recovery 

of attorneys’ fees and costs:

In case [of] default ... foreclosure proceedings may 

be brought ... on this Mortgage and prosecuted to 

judgment, execution and sale for the collection of the 

same, together with costs of suit and an attorney's 

commission for collection of the total indebtedness.

[Clark] at 174. Accordingly, the court decided in Clark that 

this language demonstrated the parties' intent that the 

creditor was entitled to compensation for attorneys' fees 

and costs in executing its judgment:

Between the time of judgment and the time the 

secured creditor receives payment, the secured 

creditor may be required to make additional 

expenditures to protect its security interest and its 

collateral. The amount of fees asserted in the 

judgment is not binding where there is an intent to 

allow the secured creditor to recoup its costs in fully 

realizing upon its claim. Such costs include defending 

the claim in bankruptcy proceedings.

The Mortgage and Asset Purchase Agreement 

contemplate that liability for fees and costs would 

continue until the debt was paid. [The secured 

creditor] may include these charges as part of its 

secured claim subject to this Court's determination 

of the reasonableness of such charges.

Id. at 175.

Stendardo, 991 F.2d at 1096.
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In this case, initial judgment was entered based upon EMC’s complaint 

in foreclosure, which alleged the following amounts were due, as of June 30, 

2011:

Principal Balance $58,227.31

Interest $1,772.61

02/01/2011 through 06/30/2011

Late Charges $231.92

Property Inspections $160.00

Subtotal $60,391.84

Escrow Credit ($127.74)

TOTAL $60,264.10

Complaint in Mortgage Foreclosure, 9/30/2011, at ¶ 6.

Relevant to the issue of whether and to what extent EMC’s default 

judgment extinguished the terms of the parties’ agreement, the mortgage 

contained the following provisions:

18. Foreclosure procedure. If [EMC] requires immediate 

payment in full under paragraph 9 [pertaining to 

acceleration of the debt], [EMC] may foreclose this Security 

Instrument by judicial proceeding. [EMC] shall be 

entitled to collect all expenses incurred in pursuing 

the remedies provided in this paragraph 18, 

including, but not limited to, attorneys’ fees and costs 

of title evidence.

* * *

23. Interest Rate After Judgment. [Appellant] agrees 

that the interest rate payable after a judgment is 

entered on the [n]ote or in an action of mortgage 

foreclosure shall be the rate payable from time to 

time under the [n]ote.
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Appellant’s Brief, Exhibit D, Mortgage, 12/2/1996, at 7 (emphasis supplied).

In its motion to reassess damages, EMC alleged:

5. Additional sums have been incurred or expended on 

[Appellant’s] behalf since the Complaint was filed and 

[Appellant] has been given credit for any payments that have 

been made since the judgment. The amount of damages 

should read as follows:

Principal Balance $58,227.31

Interest through July 1, 2013 $10,377.94

Late Charges $231.92

Legal Fees $2,300.00

Cost of Suit and Title $1,408.64

Property Inspections $525.00

Mortgage Insurance Premium to be paid $61.05

Escrow Deficit $4,983.85

TOTAL $78,115.71

6. [EMC] paid the following in legal fees during the time 

the loan was in default:

10/12/2011 FORECLOSURE FEE $1,300.00

2/20/2012 Conciliation Conference 

Mandatory Court Appearance $250.00

4/20/2012 Conciliation Conference 

Mandatory Court Appearance $250.00

6/8/2012 Conciliation Conference 

Mandatory Court Appearance $250.00

8/10/2012 Conciliation Conference 

Mandatory Court Appearance $250.00

Total Fees $2,300.00

EMC’s Motion to Reassess Damages, 6/6/2013, at ¶¶ 5-6.
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Here, the trial court determined that the language in the mortgage 

evinced the parties’ intent to allow the mortgage to govern the parties’ 

obligations following the entry of judgment. Trial Court Opinion, 11/5/2013, 

at 7-8. Relying on paragraph 18 above, the trial court concluded that EMC 

was able to collect all of its submitted expenses incurred in the foreclosure, 

including “costs, fees, and other expenses stemming from Appellant’s default 

and the resulting foreclosure action.” Id. at 8. It further found that 

“[paragraph] 23 of the mortgage [as set forth above] provides that the 

interest rate after judgment shall be at the rate entered on the note.” Id. 

Although we acknowledge the trial court’s inherent authority to consider 

EMC’s request to amend its judgment, we do not agree with the trial court’s 

interpretation of the mortgage agreement or its procedure for reassessing 

EMC’s damages.

We begin our analysis by reciting the legal framework pertaining to 

contractual interpretation:

The interpretation of any contract is a question of law 

and this Court's scope of review is plenary. Moreover, we 

need not defer to the conclusions of the trial court and are 

free to draw our own inferences. In interpreting a contract, 

the ultimate goal is to ascertain and give effect to the intent 

of the parties as reasonably manifested by the language of 

their written agreement. When construing agreements 

involving clear and unambiguous terms, this Court need 

only examine the writing itself to give effect to the parties' 

understanding. This Court must construe the contract only 

as written and may not modify the plain meaning under the 

guise of interpretation.
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Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 665 

(Pa. Super. 2014).

In construing the plain meaning of the mortgage, we note that 

paragraph 18 clearly and unambiguously states that EMC is “entitled to 

collect all expenses incurred in pursuing the remedies [of a foreclosure 

action], including, but not limited to, attorneys’ fees and costs of title 

evidence.” (emphasis added). We read this provision to mean that 

recoverable expenses include those that are necessary to the pursuit of the 

foreclosure action. The types of recoverable expenses that are expressly 

identified in paragraph 18 support this interpretation, i.e. attorneys’ fees and 

costs of title evidence. Thus, it was not error for the trial court to grant 

attorneys’ fees and costs of title as those expenses survived the judgment 

under the plain terms of the parties’ security agreement.7 

As for other expenses requested by EMC (e.g., late charges, additional 

property inspections, mortgage insurance premiums, and escrow deficits), 

however, we must apply a different analysis. Although the mortgage 

permitted EMC to recover these sums from Appellant or, alternatively, to 

make these expenditures on his behalf (see infra at n.10), the agreement 

did not expressly provide that collection of these sums or outlays for these 

____________________________________________

7 Moreover, subject to our more detailed discussion infra, the trial court did 

not err in concluding that the interest rate term stated in the note survived 

entry of EMC’s default judgment.
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items survived the default judgment. We note further that EMC never filed 

an amended complaint claiming these additional damages prior to the entry 

of default judgment.8 For these reasons, EMC’s pre-judgment losses (other 

than interest, attorneys’ fees, and title costs) are no longer recoverable. 

Moreover, to the extent EMC sought to add post-judgment expenses (other 

____________________________________________

8 As previously stated, default judgments generally are governed by the 

Pennsylvania Rules of Civil Procedure and are entered by prothonotaries and 

without judicial involvement. Gotwalt, 577 A.2d at 625. “The prothonotary 

shall assess damages for the amount to which the plaintiff is entitled if it is a 

sum certain or which can be made certain by computation, but if it is not, 

the damages shall be assessed at a trial at which the issues shall be limited 

to the amount of the damages.” Pa.R.C.P. 1037. Thus, a default judgment 

is entered on a sum certain amount. If a plaintiff determines the amount of 

damages claimed in the original complaint is incorrect, plaintiff may file an 

amended complaint correcting the sum certain amount of damages claimed 

prior to the entry of a default judgment. Alternatively, a plaintiff may file an 

amended complaint seeking a trial on the lone issue of damages if a sum 

certain amount cannot be ascertained. See Reichert v. TRW, Inc., 611 

A.2d 1191, 1193 (Pa. Super. 1992) (filing an amended complaint foreclosed 

ability for default judgment on the original complaint). Specifically, we note 

that

[a] party, either by filed consent of the adverse party or by 

leave of court, may at any time change the form of action, 

add a person as a party, correct the name of a party, or 

otherwise amend the pleading. The amended pleading may 

aver transactions or occurrences which have happened 

before or after the filing of the original pleading, even 

though they give rise to a new cause of action or defense. 

An amendment may be made to conform the pleading to 

the evidence offered or admitted.

Pa.R.C.P. 1033. In this case, EMC never filed an amended complaint. 

Instead, it chose to enter default judgment for the sum certain amount set 

forth in its original complaint.
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than interest, attorneys’ fees, and title costs) to its recovery, then it needed 

to demonstrate how its pursuit of a foreclosure remedy necessitated those 

outlays. As discussed below, we conclude that the trial court failed to make 

these critical inquiries and, as far as legal fees and title costs are concerned, 

the court further failed to consider whether EMC’s requested damages were 

reasonable. 

With regard to attorneys’ fees, 41 P.S. § 406 allows a residential 

mortgage lender such as EMC to charge Appellant with actual and 

reasonable attorneys' fees. See 41 P.S. § 406(2) (“Upon commencement of 

foreclosure or other legal action with respect to a residential mortgage, 

attorney's fees which are reasonable and actually incurred by the residential 

mortgage lender may be charged to the residential mortgage debtor.”). 

And, as we have said above, the mortgage at issue clearly evinces the 

parties’ intention for attorneys’ fees to survive the entry of judgment. We 

note, however, that “[a] determination of [the] reasonableness [of 

attorneys’ fees in a foreclosure action] requires the [c]ourt to engage in a 

lodestar analysis which takes into consideration the number of hours 

reasonably expended times a reasonable hourly rate increased or decreased 

depending upon any additional factors involving case contingency or work 

product quality.” In re McMillan, 182 B.R. 11, 14-15 (Bankr. E.D. Pa. 

1995). A claimant must “make an evidentiary record regarding the time and 

rate and actual services rendered in connection with its foreclosure action.” 
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Id. Here, EMC submitted flat fees for services provided on certain dates, 

but there is no breakdown of the time, rate, or actual services provided 

because there are no invoices, billable hour itemizations, or affidavits from 

counsel to confirm EMC’s allegations. On remand, EMC must come forward 

with such proof to justify its claim for attorneys’ fees. 

The trial court also awarded EMC $1,408.64 for costs of suit and title. 

While paragraph 18 clearly entitles EMC to such costs in pursuing its 

foreclosure remedy, EMC failed to submit evidence supporting these 

expenses. Based upon the limited record before us, it is impossible to 

confirm whether the costs of title evidence alleged in EMC’s motion to 

reassess damages were actually incurred and whether they were reasonable. 

Again, on remand, EMC must adduce evidence to support its request for 

costs of title evidence. 

The trial court also granted EMC late charges, the costs of additional 

property inspections, mortgage insurance premiums, and escrow deficits. 

These expenses seem to have been made in accordance with EMC’s rights 

under the mortgage agreement. In fact, EMC admits as much in its 

memorandum of law in support of the motion to reassess damages. In its 

memorandum, EMC argued: “Because of the period of time between the 

initiation of the mortgage foreclosure action, the entry of judgment and the 

[s]heriff’s [s]ale date, damages as previously assessed are outdated and 

need to be adjusted to include current interest, real estate taxes, insurance 
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premiums, costs of collection, and other expenses which [EMC] has been 

obligated to pay under the Mortgage in order to protect its 

interests.” Memorandum of Law in Support of EMC’s Motion to Reassess 

Damages, 6/6/2013, at *2 (emphasis added).9 Essentially, EMC alleged that 

these additional expenses arose from its rights and obligations under the 

mortgage (which was extinguished -- except as expressly provided --

following entry of judgment) to protect its interests in the subject property. 

We therefore examine EMC’s individual requests separately.

With regard to the performance of additional property inspections, the 

mortgage does not specifically identify this right as surviving the entry of 

default judgment in foreclosure. Therefore, if EMC sought to amend its 

judgment by adding pre-judgment expenses incurred in performing property 

inspections, then it needed to file an amended complaint prior to the entry of 

judgment to account for those expenditures. It failed to take this action. 

Thus, pre-judgment expenditures for additional property inspections are no 

longer recoverable. However, to recover for post-judgment expenditures on 

property inspections, EMC may demonstrate on remand how the pursuit of 

its foreclosure remedy necessitated these expenses.10 To recover these 

____________________________________________

9 EMC’s memorandum in support of its motion to reassess is not paginated. 

We have supplied page numbers for ease of discussion.

10 Under the heading of Uniform Covenants, the mortgage obligates 

Appellant to pay taxes, hazard insurance premiums, mortgage insurance 

(Footnote Continued Next Page)
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sums, EMC will need to offer proof of when it performed the property 

inspections, what it paid for those services, and what purpose was served by 

the inspections. 

Likewise, late charges are not specifically exempt from the merger of 

the parties’ mortgage into EMC’s judgment. Once the trial court entered 

judgment, the mortgage was extinguished and Appellant ceased owing 

payments. Because Appellant had no obligation to continue making 

mortgage payments, there could be no late fees. We simply fail to see how 

EMC’s foreclosure action could have necessitated this particular element of 

its amended damage claim. Moreover, we note that the late fees as set 

forth in both EMC’s complaint and its motion to reassess damages are for 

the exact same amount, $231.92. It seems highly suspect that such a 

distinct amount for late fees accrued both pre- and post-judgment. Had 

additional late fees accrued after the filing of the complaint, EMC should 

have instead filed an amended complaint before the entry of judgment to 

include those damages. Again, it did not do this. Because late charges do 

(Footnote Continued) _______________________

premiums, late charges, and other expenses. See Appellant’s Brief, Exhibit 

D, Mortgage, 12/2/1996, at ¶¶ 1 and 2. In the event that Appellant fails to 

make such payments, or in the event of a legal proceeding that significantly 

affects EMC’s rights in the property, the mortgage further provides that EMC 

“may do and pay whatever is necessary to protect the value of the 

[p]roperty and [EMC’s] rights in the [p]roperty, including payment of taxes, 

hazard insurance and other items[.]” Id. at ¶ 7. We leave it to the trial 

court to consider, on remand, whether the tasks performed and the 

expenses incurred by EMC pursuant to this provision should be deemed 

necessary because of the commencement of foreclosure proceedings.
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not expressly survive the mortgage, it was an abuse of discretion for the 

trial court to have granted them. 

Regarding the escrow deficit, EMC claimed “the mortgage specifically 

provides that the mortgagee may advance the monies for taxes and 

insurance and charge these payments against the escrow account.” Id. at 

*4. The mortgage, however, makes no mention that taxes and insurance 

survive judgment. Further, EMC alleged a lump sum for Appellant’s “escrow 

deficit,” but failed to itemize the amount. Thus, it is impossible to confirm

what items were included in this amount, whether these expenses accrued 

before or after the entry of judgment, or whether EMC’s pursuit of a 

foreclosure remedy necessitated post-judgment expenditures on these 

items. To the extent these expenditures were made prior to the entry of 

judgment, EMC’s failure to file an amended complaint for these damages 

precludes any recovery at this time. On remand, therefore, EMC will need to 

demonstrate that these expenses accrued after the entry of judgment and 

that its foreclosure action required post-judgment outlays for these items.11

Turning now to EMC’s request for post-judgment interest, under 

paragraph 23 of the mortgage, Appellant agreed “that the interest rate 

payable after a judgment is entered on the [n]ote or in an action of 

____________________________________________

11 In its motion to reassess damages, EMC requested $61.05 for the 

payment of mortgage insurance premiums. On remand, EMC must make a 

similar demonstration as described above before obtaining this sum by way 

of an amended damage award. 
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mortgage foreclosure shall be the rate payable from time to time under the 

[n]ote.” Appellant’s Brief, Exhibit D, Mortgage, 12/2/1996, at ¶ 23. Thus, 

the interest rate set forth in the note survived entry of the default judgment. 

However, as Appellant points out, the note is not contained in the certified 

record, it was not attached to any pleadings, and there is no interest rate set 

forth in the mortgage. In its motion to reassess damages, EMC merely set 

forth a blanket amount for the total sum of post-judgment interest it 

believed was due “through July 1, 2013.” In compounding the problem, 

neither EMC nor the trial court identified the balance upon which the interest 

was to be calculated – the total judgment amount or the balance of the 

principal under the mortgage – or the date from which interest was to be 

computed. Instead, the trial court entered the order at issue, amending the 

judgment “to reflect a total judgment amount, including principal balance, 

interest through July 1, 2013, late charges, legal fees, cost of suit and title, 

property inspections, mortgage insurance premium, and escrow deficit, of 

$78,115.71, plus interest at six percent annum.” Trial Court Order, 

8/6/2013. While the trial court states, in its subsequent opinion, that EMC 

“submitted the original mortgage, the note, [and] a calculation of additional 

interest consistent with the rate agreed in the mortgage[,]” we are unable to 

verify this information based upon the record before us. See Trial Court 

Opinion, 11/5/2013, at 6. Based upon all of the foregoing, we conclude that 

the trial court abused its discretion in awarding additional interest payments 
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in response to EMC’s motion to reassess damages. On remand, the trial 

court may award post-judgment interest but, in doing so, it shall supplement 

the record to include the note, as well as a computation of its additional 

interest award that identifies the applicable interest rate, the operative 

dates, and the balance upon which the interest is calculated.

We believe that an evidentiary hearing is necessary to develop a 

record that supports any additional damages that are to be awarded to 

EMC.12 We do so because we are reminded that “[g]enerally, default 

judgments are not favored.” Atlantic Credit & Finance, Inc. v. Giuliana, 

829 A.2d 340, 343 (Pa. Super. 2003) (citation omitted). It has been stated 

in regard to default judgments that:

[t]he purpose of the rules in authorizing the entry of default 

judgments is to prevent a dilatory defendant from impeding 

the plaintiff in establishing his claim. The rules are not 

primarily intended to provide the plaintiff with a 

means of gaining a judgment without the difficulties 

which arise from litigation....

Id. (emphasis added). The trial court cannot abbreviate the process for 

modifying the amount of the default judgment when factual issues are 

present.

____________________________________________

12 As previously noted, Appellant relies upon Pa.R.Civ.P. 1037(b)(1) in 

arguing that EMC must prove its additional damages at a trial. Supra, at 7-

8. We note that Rule 1037 applies in cases in which damages are to be 

calculated before default judgment is entered. In this case, EMC is seeking 

to modify the amount of damages after default judgment was entered. 

Thus, Rule 1037 is not applicable.
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Order vacated. Case remanded for an evidentiary hearing to reassess 

damages in accordance with this opinion. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/2015