J

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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

WILMINGTON SAVINGS FUND SOCIETY FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2015

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v.

FORREST M. SWAYDIS A/K/A FOREST M. SWAYDIS

Appellant :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1167 MDA 2018

Appeal from the Judgment Entered June 7, 2018 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2016

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BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED AP RIL 05, 2019
Forrest M. Swaydis a/k/a Forest M. Swaydis (Swaydis) appeals from the
judgment entered in the Court of Common Pleas of Lackawanna County (trial
court) in favor of Wilmington Savings Fund Society FSB, d/b/a Christiana
Trust, not in its individual capacity, but solely as trustee for BCAT 2015

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(Wilmington Savings) . We affirm.

We take the following relevant facts and procedural his tory from the trial
court’s August 22, 2018 opinion and our independent review of the certified

record

. On June 17, 2016, Wilmington Saving s filed a complaint in mortg age
foreclosure again st Swaydis alle ging his October 2011 def ault o f a mortgage
secured by a property located in Old Forge, Lackawanna County. The trialJ

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court entered an order overruling Swaydis’ preliminary objections to the
complaint in March 2017. Swaydis filed an answer and new matter and
Wilmington Savings filed a response thereto.
In February 2018, Wilmington Savings filed a motion for summary
judgment attaching supporting documentation , including the relevant loan
documents, assignment of the mortgage to it and an affidavit from a
Wilmingt on Savings loan servicing agent averring that the amount due and
owing on the loan is $102,526.41

. Swaydis did not file a response nor did h e
appear at the oral argument on the motion . The trial court entered summary
judg ment in favor of Wilmington Savings in the amount of $102,526.41

. In
its 1925(b) Opinion , 1 the trial court stated:

It is clear that Appellant has completely failed at every step of the proceedings to coherently and succinctly identify any facts or defens es in support of his opposition to this action. He has merely raised bald assertions in his responses to the complaint, as well as in his new matter. He failed to respond to request for admissions, resulting in those requests being deemed admitted. He f ailed to respond, brief, or appear for or al argument on the Motion for Summary Judgment. And lastly, he failed by asserting boilerplate allegations of error in his matters complained of on appeal.
Meanwhile, Appellee has produced competent, straightforwa rd evidence establishing: a) mortgage was obtained by Appellant, b) Appellant defaulted on the mortgage, and c) the mortgage was properly recorded specifying the proper amounts due and owing.

_________________ __________ ______ ____ _______

1 See Pa.R.A.P. 1925.J

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Trial Court Opinion pp. 6

- 7. This appeal followed. 2
In his app eal , Swaydis contends that the trial court’s entry of summary
judgment 3 in favor of Wilmington Savings was improper because his answer

and new matter ma de clear that there are genuine issues of material fact
regarding the propriety of the foreclosure . ( See Swaydis’ Brief, at 12

- 22 ).
Pennsylvania Rule of Civil Procedure 1035.3 governs responses to
motions for summary judgment and provides, in pertinent part:

(a)

. . . the adverse party may not rest upon the mere allegations or denials of the pleadings bu t must file a response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
(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.

_________________ __________ ______ ____ _______

2 T h e trial court entered summary judgment on May 29, 2018 , and, for reasons not readily apparent from the record, judgment was again entere d on the docket on June 7, 2018. N otice of the judgment pursuant to Pennsylvania Rule of Civil Procedure 236 was sent to the parties on that same June date. See Pa.R.C.P. 236. Swaydis ’ notice of appeal, filed on July 9 , 2018, was , therefore , timely. See EMC Mort. , LLC v. Biddle , 114 A.3d 1057, 1059 n.1 (Pa. Super. 2015) (notice of appeal was timely when f iled within thirty days after Rule 236 notice of judgment was sent by p rothonotary); see also 1 Pa.C.S. § 190 8 (when last day of appeal period falls on weekend or legal holiday , that day is omitted from computation of time).

3 An appellate court may reverse the entry of a summary judgment only where it is established that the court committed an error of law or abused its discretion. See State Farm Mut. Auto. Ins. Co. v. Dooner , 189 A .3d 479, 481 (Pa. Super. 2018)

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(d) Summary judgment may be ente red against a party who does not respond

.
Pa.R.C.P. 1035.3. (a)(1)

- (2) , (d) (emphase s added).
Further, “ 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 appea l. ” Harber Philadelphia Ctr. City Office Ltd. v. LPCI Ltd.
P'ship , 764 A.2d 1 100, 1105 (Pa. Super. 2000) , appeal denied , 782 A.2d 546
(Pa. 2001) (citation omitted). Th is makes the defense s to summary judgment
advanced by the non
- moving party in the trial court of critical importance.

See id. “ This proposition is co nsistent 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 tria l 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 f or the first time on appeal.’ ).” Id.

In this case , Swaydis did not file any response to Wilmington Savings ’
motion for summary judgment in the trial court, nor did he appear at oral
argument on the motion. Because Swaydis failed to respond in any way, the

trial court did not err in entering summary judgment

. See Pa.R.C.P.

1035.3. (d)

. Moreover, his failure to raise any grounds for relief in the trial
court as a basis upon which to deny summary judgment waives those grounds

on appea l. See Harber Philadelphia Ctr. City Office Ltd. , supra at 1105

. Judgment affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/05/2019