J-A17043-15

2015 PA Super 174

THE BANK OF NEW YORK MELLON F/K/A 

THE BANK OF NEW YORK, AS TRUSTEE 

FOR THE CERTIFICATE HOLDERS OF 

CWMBS 2004-R2

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JACQUELINE M. JOHNSON

Appellant No. 3409 EDA 2014

Appeal from the Order Entered November 14, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): September Term, 2010 No. 3793

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

OPINION BY GANTMAN, P.J.: FILED AUGUST 19, 2015

Appellant, Jacqueline M. Johnson, appeals from the order entered in 

the Philadelphia County Court of Common Pleas, which denied her petition to 

strike a default judgment entered in favor of Appellee, The Bank of New York 

Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders of 

CWMBS 2004-R2. We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

This case commenced September 29, 2010, with the filing 

of a complaint in mortgage foreclosure on the premises of 

936 E. Phil Ellena Street, Philadelphia, PA 19150 by 

Appellee.... The complaint averred that Appellant was in 

default on a mortgage recorded at No. 0451, page 339, in 

the Office of the Recorder of Philadelphia County, and 

assigned at Mortgage Instrument No. 51951797. 
J-A17043-15

- 2 -

On August 30, 2011, Appellee filed a Motion for Alternative 

Service, which averred that attempts to serve Appellant 

have been unsuccessful and that, following a good faith 

investigation, Appellant had no change of address on 

record from the mortgaged premises. 

On September 9, 2011, [the trial court] granted Appellee’s 

Motion for Alternative Service and allowed service of the 

complaint upon Appellant at 936 E. Phil Ellena Street, 

Philadelphia, PA 19150, by certified mail, first class regular 

mail, and posting of the premises. 

On September 20, 2011, Appellee filed an Affidavit of 

Service of the Complaint by regular mail and certified mail, 

return receipt requested, to Appellant at 3028 N. 26th

Street, Philadelphia, PA 19132 and 936 E. Phil Ellena 

Street, Philadelphia, PA 19150 on September 19, 2011. 

On September 22, 2011, Appellee filed an Affidavit of 

Service of the Complaint by posting of the premises at 936 

E. Phil Ellena Street, Philadelphia, PA 19150 on September 

20, 2011, at 11:30 a.m. 

On December 11, 2011, Appellee filed a Praecipe for 

Judgment by Default in the amount of $145,602.28. 

On March 13, 2012, Appellee filed a Praecipe for Writ of 

Execution. 

On April 18, 2012, Appellee filed a Motion to Reassess 

Damages. 

On May 17, 2012, [the trial court] amended the in rem

judgment to a total of $168,095.41 plus interest from June 

5, 2012 through the date of sale at six (6) percent per 

annum. 

On May 21, 2012, Appellee filed an Affidavit of Service of 

Notice of Sale upon Appellant by certified mail and first 

class regular mail. 

On July 13, 2012, the Writ was returned as the sale was 

stayed by Appellee’s attorney. 
J-A17043-15

- 3 -

On May 16, 2013, another Praecipe for Writ of Execution 

was filed on behalf of Appellee. 

On August 13, 2013, Appellee filed an Affidavit of Service 

of Notice of Sale upon Appellant by certified mail and first 

class regular mail to 936 E. Phil Ellena Street, Philadelphia, 

PA 19150 on June 7, 2013. 

On August 23, 2013, Appellant filed a Motion to Postpone 

Sheriff’s Sale and a Petition to Open Judgment. That same 

day, [the trial court] issued a Rule to Show Cause why the 

Motion to Postpone should not be granted. In her Petition 

to Open, Appellant argued that she had not been served 

and that she was incarcerated at the time the petition was 

served. 

On September 5, 2013, [the trial court] granted 

Appellant’s Motion to Postpone and postponed the Sheriff’s 

Sale until December 3, 2013, with no further notice or 

advertisement to be required. 

On September 12, 2013, Appellee filed an Answer in 

Opposition to Appellant’s Petition to Open Judgment. 

Appellee denied Appellant’s averments and further attested 

that the Complaint had been properly served after the 

grant of a Motion for Alternative Service, and that 

Appellant had not demonstrated a meritorious defense, 

filed a timely petition, or offered a reasonable excuse as to 

why the petition had not been timely filed. 

On October 29, 2013, [the trial court] denied Appellant’s 

Petition to Open Judgment. 

On October 31, 2013, the case was placed in deferred 

status due to Appellant’s pending bankruptcy. 

On August 27, 2014, the case was removed from deferred 

status. 

On September 5, 2014, Appellee filed a Praecipe for Writ 

of Execution. 
J-A17043-15

- 4 -

On September 26, 2014, Appellee filed an Affidavit of 

Service on Appellant by posting the premises of 936 E. Phil 

Ellena Street, Philadelphia, PA 19150 on September 18, 

2014, as well as an Affidavit of Service on Appellant by 

personal service. 

On October 2, 2014, Appellant filed a Petition to Strike the 

Judgment as Appellee had failed to provide proof of service 

by certified mail; failed to set forth a specific averment of 

default; failed to attach a promissory note; and that 

Appellee was not the real party of interest in regard to the 

claim. 

On October 22, 2014, Appellee filed an Answer in 

Opposition to Appellant’s Motion, denying Appellant’s 

averments and attesting that service had been properly 

effectuated per Pa.R.C.P. 430. Appellee further argued

that Appellant’s claims regarding the specific averment of 

default and attachment of the Promissory Note should 

have been raised as preliminary objections, and further, 

that Appellee was not required to attach the Note to its 

complaint. 

On November 14, 2014, [the trial court] denied Appellant’s 

[Petition] to Strike Judgment. 

On November 21, 2014, Appellant filed a timely Notice of 

Appeal.... 

On November 24, 2014, [the trial court] issued its Order 

pursuant to Pa.R.A.P. 1925(b), directing Appellant to file 

her Concise Statement of [Errors] Complained of on Appeal 

within twenty-one (21) days. 

On November 25, 2014, Appellant filed her [Rule 1925(b) 

statement].... 

(Trial Court Opinion, filed February 4, 2015, at 1-4) (internal footnote 

omitted). 

Appellant raises two issues for our review: 
J-A17043-15

- 5 -

DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S 

PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN 

APPELLEE HAD FAILED TO PROVIDE PROOF OF SERVICE 

OF ORIGINAL PROCESS BY CERTIFIED MAIL THAT WOULD 

INCLUDE A RETURN RECEIPT SIGNED BY [APPELLANT]? 

DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S 

PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN 

THE COMPLAINT, ON ITS FACE, FAILED TO STATE A 

CAUSE OF ACTION IN MORTGAGE FORECLOSURE, 

BECAUSE, INTER ALIA, NO UNDERLYING PROMISSORY

NOTE WAS ALLEGED? 

(Appellant’s Brief at 2). 

“An appeal regarding a petition to strike a default judgment implicates 

the Pennsylvania Rules of Civil Procedure.” Green Acres Rehabilitation 

and Nursing Center v. Sullivan, 113 A.3d 1261, 1267 (Pa.Super. 2015). 

Issues regarding the operation of procedural rules of court 

present us with questions of law. Therefore, our standard 

of review is de novo and our scope of review is plenary. 

A petition to strike a judgment is a common law 

proceeding which operates as a demurrer to the record. A 

petition to strike a judgment may be granted only for a 

fatal defect or irregularity appearing on the face of the 

record. [A] petition to strike is not a chance to review the 

merits of the allegations of a complaint. Rather, a petition 

to strike is aimed at defects that affect the validity of the 

judgment and that entitle the petitioner, as a matter of 

law, to relief. A fatal defect on the face of the record 

denies the prothonotary the authority to enter judgment. 

When a prothonotary enters judgment without authority, 

that judgment is void ab initio. When deciding if there are 

fatal defects on the face of the record for the purposes of a 

petition to strike a [default] judgment, a court may only 

look at what was in the record when the judgment was 

entered. 

Id. at 1267-68 (internal citations and quotation marks omitted). 
J-A17043-15

- 6 -

In her first issue, Appellant cites Pa.R.C.P. 405(c) for the proposition 

that proof of service by certified mail must include a return receipt signed by 

a defendant. Appellant contends a plaintiff cannot prove service if a certified 

mail return receipt lacks a defendant’s signature to demonstrate actual 

delivery. Appellant asserts Appellee failed to prove service of the complaint 

and case management order by certified mail, because Appellee did not 

provide a return receipt signed by Appellant. Appellant insists “no return 

receipt was attached [to Appellee’s affidavit of service of complaint], signed 

or unsigned.” (Appellant’s Brief at 7) (emphasis in original). Appellant 

concludes Appellee’s failure to prove service of original process constituted a 

fatal defect on the face of the record, and the court should have granted 

Appellant’s petition to strike the default judgment on this basis. We 

disagree. 

The Pennsylvania Rules of Civil Procedure govern service by mail as 

follows: 

Rule 403. Service by Mail 

If a rule of civil procedure authorizes original process to 

be served by mail, a copy of the process shall be mailed to 

the defendant by any form of mail requiring a receipt 

signed by the defendant or [her] authorized agent. 

Service is complete upon delivery of the mail. 

* * * 

Pa.R.C.P. 403. Additionally, Rule 405 provides: 

Rule 405. Return of Service
J-A17043-15

- 7 -

(a) When service of original process has been made 

the sheriff or other person making service shall make a 

return of service forthwith. If service has not been made 

and the writ has not been reissued or the complaint 

reinstated, a return of no service shall be made upon the 

expiration of the period allowed for service. 

* * * 

(b) A return of service shall set forth the date, time, 

place and manner of service, the identity of the person 

served and any other facts necessary for the court to 

determine whether proper service has been made. 

(c) Proof of service by mail under Rule 403 shall 

include a return receipt signed by the defendant or, if the 

defendant has refused to accept mail service and the 

plaintiff thereafter has served the defendant by ordinary 

mail, 

(1) the returned letter with the notation that 

the defendant refused to accept delivery, and 

(2) an affidavit that the letter was mailed by 

ordinary mail and was not returned within fifteen days 

after mailing. 

Pa.R.C.P. 405(a), (b), (c). 

A party can also petition for alternative methods of service: 

Rule 430. Service Pursuant to Special Order of 

Court. Publication

(a) If service cannot be made under the applicable 

rule the plaintiff may move the court for a special order 

directing the method of service. The motion shall be 

accompanied by an affidavit stating the nature and extent 

of the investigation which has been made to determine the 

whereabouts of the defendant and the reasons why service 

cannot be made. 
J-A17043-15

- 8 -

Pa.R.C.P. 430(a). “Due process, reduced to its most elemental component, 

requires notice.” PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 230 

(Pa.Super. 2007). “The adequacy of this notice, as applied to substituted 

service, depends upon whether it is reasonably calculated to give the party 

actual notice of the pending litigation and an opportunity to be heard.” Id. 

Instantly, Appellee filed a motion for alternative service on August 30, 

2011. In it, Appellee noted a process server unsuccessfully attempted to 

serve Appellant at both the mortgaged premises and Appellant’s last known 

address.1 Appellee also stated it had conducted a good faith investigation to 

locate Appellant. Consequently, Appellee asked the court to enter an order 

pursuant to Rule 430, directing service of the complaint and all future 

pleadings by first class mail and posting of the mortgaged premises. 

The court granted Appellee’s motion for alternative service on 

September 9, 2011. Specifically, the court permitted Appellee to serve the 

complaint and all future pleadings by posting of the mortgaged premises and 

first class and certified mail to Appellant at both the mortgaged premises 

and her last known address. The court also required Appellee to file a 

certificate of service to ensure compliance with the court’s order. On 

September 20, 2011, Appellee filed an affidavit of service indicating it had 

sent a copy of the complaint to Appellant at both the mortgaged premises 

____________________________________________

1 The motion for alternative service listed Appellant’s last known address as 

3028 North 26th Street in Philadelphia. 
J-A17043-15

- 9 -

and her last known address via regular and certified mail, return receipt 

requested. On September 22, 2011, Appellee filed another affidavit of 

service indicating it had served the complaint by posting of the mortgaged 

premises. 

Contrary to Appellant’s argument, Rule 405 did not control the manner 

of service at issue. Rule 405 applies to “[p]roof of service by mail under 

Rule 403....” See Pa.R.C.P. 405(c). Further, Rule 403 applies “[i]f a rule of 

civil procedure authorizes original process to be served by mail.” See

Pa.R.C.P. 403. Appellee, however, did not proceed under Rules 403 and 

405. Rather, Appellee effectuated service pursuant to a special order of the 

court granting the motion for alternative service. Here, Appellee fully 

complied with the court’s special order. Moreover, the court reasonably 

calculated the manner of alternative service to give Appellant actual notice 

of the pending litigation and an opportunity to be heard. See PNC Bank, 

N.A., supra. Therefore, Appellant has not demonstrated a fatal defect in 

the record, and she is not entitled to relief on her first claim. See Green 

Acres Rehabilitation and Nursing Center, supra. 

In her second issue, Appellant asserts a mortgage foreclosure 

complaint must include a specific averment of default. Appellant contends 

“[t]his means that the promissory note that the alleged mortgage purports 

to secure must be attached to the complaint....” (Appellant’s Brief at 8) 

(emphasis in original). Appellant maintains Appellee’s complaint was 
J-A17043-15

- 10 -

deficient, because Appellee did not include the promissory note as an 

attachment. Moreover, Appellant argues the complaint failed to allege that a 

promissory note even existed, and Appellee did not aver that it legally 

owned the mortgage. Appellant concludes the court should have struck the 

default judgment on this basis. We disagree. 

Pennsylvania Rule of Civil Procedure 1147 governs the content of 

mortgage foreclosure complaints: 

Rule 1147. The Complaint

(a) The plaintiff shall set forth in the complaint: 

(1) the parties to and the date of the mortgage, and 

of any assignments, and a statement of the place of record 

of the mortgage and assignments; 

(2) a description of the land subject to the mortgage; 

(3) the names, addresses and interest of the 

defendants in the action and that the present real owner is 

unknown if the real owner is not made a party; 

(4) a specific averment of default; 

(5) an itemized statement of the amount due; and 

(6) a demand for judgment for the amount due. 

Pa.R.C.P. 1147(a). 

Instantly, Appellee filed its complaint on September 29, 2010. The 

complaint stated, in relevant part: 

2. The name(s) and last known address(es) of the 

Defendant(s) are: 

[Appellant] 
J-A17043-15

- 11 -

936 EAST PHIL ELLENA STREET 

PHILADELPHIA, PA 19150-3606 

who is/are the mortgagor(s) and/or real owner(s) of the 

property hereinafter described. 

3. On 12/20/1996 [Appellant] made, executed and 

delivered a mortgage upon the premises hereinafter 

described to COLUMBIA NATIONAL INC. which mortgage is 

recorded in the Office of the Recorder of PHILADELPHIA 

County, in Mortgage Book No. 0451, Page 339. By 

assignment of Mortgage recorded 08/12/2008 the 

mortgage was assigned to [Appellee] which Assignment is 

recorded in Assignment of Mortgage Instrument No. 

51951797. The mortgage and assignment(s), if any, are 

matters of public record and are incorporated herein by 

reference in accordance with Pa.R.C.P. 1019(g); which 

Rule relieves [Appellee] from its obligations to attach 

documents to pleadings if those documents are of public 

record. 

4. The premises subject to said mortgage is described as 

attached.[2] 

5. The mortgage is in default because monthly payments 

of principal and interest upon said mortgage due 

12/01/2005 and each month thereafter are due and 

unpaid, and by the terms of said mortgage, upon failure of 

mortgagor to make such payments after a date specified 

by written notice sent to Mortgagor, the entire principal 

balance and all interest due thereon are collectible 

forthwith. 

6. The following amounts are due on the mortgage:

Principal Balance $83,547.95

Interest $35,369.61

11/01/2005 through 09/28/2010

(Per Diem $19.7265)

____________________________________________

2 The attachment contained a metes and bounds description of the 

mortgaged premises. 
J-A17043-15

- 12 -

Attorney’s Fees $ 650.00

Late Charges through 09/28/2010 $ 1,862.95

Property Inspections/

Property Preservations $ 387.25

Mortgage Insurance Premium/

Private Mortgage Insurance

Costs of Suit and Title Search $ 550.00

Escrow Deficit $13,148.44

TOTAL $137,040.98

(See Complaint, filed 9/29/10, at 1-2; R.R. at 22a-23a.) Consequently, 

Appellee demanded an in rem judgment against Appellant for $137,040.98, 

plus interest, costs, and fees. (Id. at 3; R.R. at 24a)

Here, the trial court found “a complaint in mortgage foreclosure does 

not need to include the original promissory note. The complaint did make a 

specific averment that monthly installments were due...and that Appellant 

failed to pay....” (See Trial Court Opinion at 5.) We agree and emphasize 

that Appellee’s complaint fully complied with Rule 1147. The complaint 

listed the parties to the mortgage, the date of execution, and the 

assignment to Appellee. See Pa.R.C.P. 1147(a)(1). An attachment to the 

complaint described the land subject to the mortgage. See Pa.R.C.P. 

1147(a)(2). The complaint set forth the name, address, and interest of 

Appellant. See Pa.R.C.P. 1147(a)(3). Significantly, Appellee included a 

specific averment of default, explaining that Appellant had failed to make her 

required monthly payments since 2005. See Pa.R.C.P. 1147(a)(4). 

Appellee also provided an itemized statement of the amount due, and it 

demanded judgment for that amount. See Pa.R.C.P. 1147(a)(5), (6). 
J-A17043-15

- 13 -

Because the complaint fully complied with Rule 1147(a), Appellant is not 

entitled to relief on her second claim. 

Based on the foregoing, we conclude Appellant failed to demonstrate a 

fatal defect on the face of the record as it existed when judgment was 

entered. See Green Acres Rehabilitation and Nursing Center, supra. 

Therefore, the court properly denied Appellant’s petition to strike the default 

judgment. Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/2015