J-S15019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PHH MORTGAGE CORPORATION

v.

ADRIAN LUPU A/K/A ADRIAN OF THE 

FAIMLY LUPU RODICA STEFAN A/K/A 

RODICA OF THE FAMILY LUPU

APPEAL OF: ADRIAN LUPU

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2353 EDA 2021

Appeal from the Order Entered October 19, 2021

In the Court of Common Pleas of Chester County

Civil Division at 2017-11108-RC

BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED JUNE 7, 2022

Adrian Lupu (Appellant) appeals pro se from the order granting 

summary judgment in favor of Appellee, PHH Mortgage Corporation (PHH), in 

this mortgage foreclosure action.1 We affirm.

On November 22, 2017, PHH’s predecessor in interest, Ocwen Loan 

Servicing, LLC (Ocwen), filed a complaint in mortgage foreclosure. Ocwen

alleged Appellant’s December 2011 default on a mortgage secured by property 

in Coatesville, Pennsylvania. 

____________________________________________

1 Rodica Stefan (Stefan), Appellant’s wife and defendant below, is not a party 

to this appeal.
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In January 2019, Ocwen filed a motion for summary judgment with 

supporting documentation (including loan documents, the mortgage 

assignment, and an affidavit from an Ocwen senior loan analyst calculating an 

outstanding balance of $454,660.00). Appellant filed a response on February 

4, 2019. Shortly thereafter, the trial court entered summary judgment in 

favor of Ocwen in the amount of $454,660.00. Appellant filed a timely appeal

from that order.

2

 In response, the trial court stated:

[Appellant’s] second and arguably primary argument is that the 

signatures on the mortgage are forgeries. As we stated in the 

footnote to our February 22, 2019 Order [granting summary 

judgment], this issue was raised and fully litigated in an action 

brought by [Appellant] in the United States District Court [for] the 

Eastern District of Pennsylvania. The Honorable Cynthia M. Rufe 

ruled that: “the record has been developed through discovery and 

[Appellant] has not produced any evidence from which a factfinder 

could conclude that the mortgage documents were invalid or 

forged.” [Appellant] failed to appeal this decision; therefore these 

arguments are barred by res judicata and collateral estoppel.

 

Trial Court Opinion, 5/17/19, at 2-3.

Prior to this Court issuing a decision, Ocwen filed an unopposed motion 

to vacate and remand to the trial court. Motion to Vacate, 8/8/19, at 1-2. 

Ocwen alleged its recent discovery that, in July 2017, Appellant filed a deed 

transferring title of the property from Appellant alone, to both Appellant and 

his wife, Stefan; thus, Ocwen sought to amend the complaint to name Stefan 

____________________________________________

2 On March 27, 2019, the mortgage was assigned to PHH, who praeciped for 

voluntary substitution of appearance.
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as a party. Id. This Court granted the motion on September 24, 2019, and 

remanded the case to the trial court.

PHH filed an amended complaint on January 2, 2020, and a motion for 

summary judgment on September 7, 2021. Neither Appellant nor Stefan filed 

a response. On October 19, 2021, the trial court granted summary judgment 

pursuant to Pennsylvania Rule of Civil Procedure 1035.3(d), which permits 

summary judgment when the non-moving party fails to respond. Noting its 

prior grant of summary judgment in 2019, the court entered judgment in the 

amount of $557,808.01.

Appellant filed a notice of appeal from the October 19, 2021, order, and 

a court-ordered Rule 1925(b) statement. The trial court issued a statement 

in lieu of opinion, explaining it granted summary judgment based on 

Appellant’s failure to respond to PHH’s motion. Statement in Lieu of Pa.R.A.P. 

1925(a) Opinion, 1/6/22, at 1 (unnumbered).

On appeal, Appellant raises the following issues:

[1.] Did the trial court err in granting the motion for summary 

judgment of [PHH] without Subject Matter Jurisdiction?

[2.] Did the trial court err in granting the motion for summary 

judgment of [PHH] and denying [Appellant’s] motion for summary 

judgment in the face of dispute of material facts essential to the 

action?

[3.] Did the trial court err when it ignored the factual and legal 

basis presented by [Appellant’s] arguments presented in the 

paperwork?
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[4.] Did the trial court err when the court ruled on its motion for 

summary judgment when there was a trial scheduled to have the 

case heard properly on its merits?

Appellant’s Brief at 4-5.

We begin by recognizing,

[o]ur scope of review of a trial court’s order granting or denying 

summary judgment is plenary, and our standard of review is clear: 

the trial court’s order will be reversed only where it is established 

that the court committed an error of law or abused its discretion.

Summary judgment is appropriate only when the record clearly 

shows that there is no genuine issue of material fact and that the 

moving party is entitled to judgment as a matter of law. The 

reviewing court must view the record in the light most favorable 

to the nonmoving party and resolve all doubts as to the existence 

of a genuine issue of material fact against the moving party. Only 

when the facts are so clear that reasonable minds could not differ 

can a trial court properly enter summary judgment.

Michael v. Stock, 162 A.3d 465, 472–73 (Pa. Super. 2017) (citation 

omitted). “[P]arties seeking to avoid the entry of summary judgment against 

them may not rest upon the averments contained in their pleadings. On the 

contrary, they are required to show, by depositions, answers to 

interrogatories, admissions or affidavits, that there is a genuine issue for trial.” 

Washington Fed. Sav. & Loan Ass’n v. Stein, 515 A.2d 980, 981 (Pa. 

Super. 1986) (citation omitted).

As noted above, Rule 1035.3 provides for judgment when a party fails 

to respond. The Rule states:

(a) ... 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 identifying
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(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

(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.

* * *

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

does not respond.

Pa.R.C.P. 1035.3.(a)(1)-(2), (d) (emphases added).

A non-moving party’s “failure to raise grounds for relief in the trial court 

as a basis upon which to deny summary judgment waives those grounds on 

appeal.” Harber Philadelphia Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 

764 A.2d 1100, 1105 (Pa. Super. 2000) (citation omitted). 

Our application of the summary judgment rules [] establishes the 

critical importance to the non-moving party of the defense to 

summary judgment he or she chooses to advance. A decision to 

pursue one argument over another carries the certain 

consequence of waiver for those arguments that could have been 

raised but were not. This proposition is consistent with our 

Supreme Court’s efforts to promote finality, and effectuates the 

clear mandate of our appellate rules requiring presentation of all 

grounds for relief to the trial court as a predicate for appellate 

review. See Pa.R.A.P. 302(a) (“Issues not raised in the lower 

court are waived and cannot be raised for the first time on 

appeal.”).

Id. (some citations omitted).

Instantly, because Appellant did not file a response to the motion for 

summary judgment in the trial court, the issues he presents on appeal are 
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waived.3 See id. Although Appellant is pro se, his pro se status does not 

relieve him of his obligation to follow the rules. Jiricko v. Geico Ins. Co., 

947 A.2d 206, 213 n.11 (Pa. Super. 2008); Commonwealth v. Adams, 882 

A.2d 496, 497 (Pa. Super. 2005) (pro se litigant must “assume the risk” that 

his “lack of expertise and legal training will prove [his] undoing.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2022

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3

In addition, Appellant’s brief contains numerous deficiencies which impede 

our review and compel waiver. See Pa.R.A.P. 2116; Pa.R.A.P. 2119(a). For 

example, Appellant raises four issues in his statement of questions, but his 

only argument (that his signature on the mortgage was a forgery) is not one 

of the four issues. See U.S. Coal Corp. v. Dinning, 222 A.3d 431, 440 (Pa. 

Super. 2019), appeal denied, 237 A.3d 388 (Pa. 2020) (finding waiver where 

appellant’s argument was not suggested by statement of questions).