J-S12013-19

2019 PA Super 286

WILMINGTON TRUST, NATIONAL 

ASSOCIATION, NOT IN ITS 

INDIVIDUAL CAPACITY, BUT SOLELY 

AS TRUSTEE FOR VM TRUST SERIES 

3, A DELAWARE STATUTORY TRUST

v.

UNKNOWN HEIRS, SUCCESSORS, 

ASSIGNS, AND ALL PERSONS, FIRMS 

OR ASSOCIATIONS CLAIMING 

RIGHT, TITLE OR INTEREST FROM 

OR UNDER HELEN A. BROLLEY, 

DECEASED, AND JAMES M. BROLLEY, 

(REAL OWNER)

APPEAL OF: JAMES M. BROLLEY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 615 MDA 2017

Appeal from the Order Entered March 9, 2017

In the Court of Common Pleas of Luzerne County Civil Division at No(s): 

2985 of 2012

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

OPINION BY BOWES, J.: FILED: SEPTEMBER 19, 2019

James M. Brolley appeals from the March 9, 2017 in rem judgment in 

mortgage foreclosure entered in favor of Wilmington Trust, National 

Association, as Trustee for VM Trust Series 3, a Delaware Statutory Trust 

(“Mortgagee”). We vacate the judgment and dismiss the action with 

prejudice. 

The following facts are relevant to our review. On February 7, 2003, 

Helen Brolley executed a mortgage and note in the principal amount of 

$65,000, in favor of Wells Fargo Home Mortgage, Inc., on her property at 150 
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Laurel Drive, Mountain Top, Pennsylvania 18707 (“the Property”). The 

mortgage was duly recorded with the Recorder of Deeds of Luzerne County. 

The note provided for interest at an annual rate of 8.250%. On November 

13, 2003, she transferred her interest to her son via deed, which was duly 

recorded. Helen Brolley died on March 15, 2006. 

It is undisputed that no monthly payments of principal and interest were 

made on or after April 1, 2006. On August 8, 2007, Wells Fargo filed a 

complaint in mortgage foreclosure against James Brolley, seeking the amount 

owing from April 1, 2006, and each month thereafter. That action was 

docketed at No. 8805 of 2007. By order dated September 9, 2009, an in rem

summary judgment was entered in favor of Wells Fargo and against Mr. 

Brolley.1 That judgment was subsequently amended on September 27, 2010, 

to $99,263.92 plus interest from August 6, 2010 through the date of sale at 

six percent per year. There was no sale of the Property.

On October 28, 2011, Residential Credit Solutions, Inc., the servicer of 

the mortgage, sent notice of intent to foreclose on the mortgage addressed to 

the Estate of Helen Brolley at the Property. That notice recited that the 

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1 The mortgage was assigned several times, the first assignment occurring on 

April 29, 2009, from Wells Fargo to EMC Mortgage Corporation. Judgment in 

mortgage foreclosure subsequently was entered in favor of Wells Fargo. On

March 22, 2018, Wells Fargo filed a praecipe to mark the judgment to the use 

of EMC Mortgage Corporation. Despite the judgment, EMC Mortgage 

Corporation subsequently assigned the mortgage to EMC Mortgage LLC on 

January 31, 2012, and, on February 11, 2015, EMC Mortgage LLC assigned it 

to Wilmington Trust, National Association, not in its Individual Capacity, but 

solely as Trustee for VM Trust Series 3, a Delaware Statutory Trust. 
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mortgage was in serious default, no monthly payment having been made since 

April 1, 2006. On March 12, 2012, EMC Mortgage LLC commenced the instant 

action at No. 2985 of 2012, by filing a complaint in mortgage foreclosure. Mr. 

Brolley filed a pro se answer to the complaint in which he pled that, “a legal 

judgment has already been rendered in this matter by Judge Peter Paul 

Olszewski.” Answer in Mortgage Foreclosure, 5/17/12, at 1. 

On April 22, 2013, EMC Mortgage Corporation filed a praecipe to vacate 

and discontinue the prior judgment at No. 8805 of 2007 “without prejudice,”

and thereafter the Mortgagee herein filed two motions for summary judgment, 

which the court denied. After a bench trial, the court entered judgment in 

favor of EMC Mortgage LLC.

Mr. Brolley filed post-trial motions, which were denied, and a timely 

appeal to this Court. In his Rule 1925(b) statement, he asserted that the trial 

court erred in failing to consider the affirmative defenses of collateral estoppel 

and res judicata that he raised in his pro se answer. The trial court, in its Rule 

1925(a) opinion, found the defenses waived as Mr. Brolley failed to plead them 

as new matter pursuant to Pa.R.C.P. 1030(a). This Court disagreed, vacated 

the judgment, and remanded the matter to the trial court “for consideration 

on the merits of [Mr. Brolley’s] affirmative defenses.” EMC Mortgage, LLC 

v. Unknown Heirs, 153 A.3d 1110 (Pa.Super. 2016) (unpublished 

memorandum at 4). 

Following remand, the trial court held a status conference. It issued an 

order directing the parties to brief the legal issues and ordering that “the 
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transcript, evidence, and stipulations of March 31, 2015” be made part of the 

new record. Order, 7/13/16, at 1. The order further stated that if the parties 

subsequently determined that they needed to present additional evidence, 

they could either stipulate to that evidence or request a phone conference 

with the court. Id. 

Following submission of briefs and argument, the trial court ruled that 

the defense of res judicata applied to the prior judgment in mortgage 

foreclosure at No. 8805 of 2007, but not to subsequent defaults under the 

mortgage. Order, 12/8/16. That same day, the court issued a trial 

management order scheduling a non-jury trial for February 3, 2017, and 

ordering the parties to submit witness lists, expert reports, exhibit lists, 

proposed findings of fact and conclusions of law, and designating portions of 

depositions that they intended to offer. 

Mr. Brolley filed a motion for reconsideration, alleging that the trial court 

erred in not finding the action barred based on res judicata and collateral 

estoppel, as well as the lack of Act 91 notice. The court ruled that the motion 

was premature as it had not ruled on the specific dates of alleged defaults, 

and that the arguments were more appropriate for the scheduled trial. See

Order, 12/29/16, at 1. The parties complied with the pretrial order, and the 

caption was corrected to reflect EMC Mortgage LLC’s earlier assignment of the 

mortgage to Wilmington Trust, National Association, not in its Individual 

Capacity, but solely as Trustee for VM Trust Series 3, a Delaware Statutory 

Trust. 
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Trial proceeded on February 3, 2017, although Mr. Brolley was not 

present. N.T., Bench Trial, 2/3/17, at 7. Mortgagee called Kimberly Harmstad 

from Shellpoint Mortgage Servicing, the servicer of the loan at issue. Id. at 

8. She testified regarding the preparation of a document setting forth the 

payment history for the subject loan post-judgment on September 1, 2010, 

which was a screenshot marked and admitted as Plaintiff’s Exhibit 9. It 

showed that the principal balance as of that date would be $59,859.75 as of 

the new default date, for a total payoff of $128,313.64. Mr. Brolley offered 

no testimony. Counsel argued, however, that as a result of the res judicata

ruling, the Act 91 notice included with the instant complaint provided incorrect 

amounts, and was thus defective. Id. at 29-30. He urged that the complaint 

be dismissed on that basis as well. 

Shortly after the conclusion of the trial, the court issued an order 

directing Mr. Brolley to brief his argument that Mortgagee had failed to comply 

with the notice requirements of Act 91 in its October 28, 2011 notice. Order, 

2/8/17, at 1. Mr. Brolley complied, representing therein that although he 

received Act 91 notice on or about October 28, 2011, the Mortgagee failed to 

adduce any evidence that a proper Act 91 notice was sent with the correct 

deficiencies and amounts remaining on the mortgage after the court ruled that 

res judicata applied. Mortgagee countered that Defendant had admitted that 

Act 91 notice complied with the statute, and thus, any objection to notice was 

waived. 
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On March 9, 2017, the court found in favor of Mortgagee and entered 

an in rem judgment in the amount of $128,313.64 as of January 31, 2017 

with the per diem rate of $14.31 and a monthly late charge of $24.41. The 

court found that Mortgagee proved its mortgage foreclosure claim as to Mr. 

Brolley’s defaults from October 1, 2010 to date. The court also rejected Mr. 

Brolley’s claim that the October 28, 2011 Act 91 Notice was defective, finding 

that the notice requirements were temporarily suspended at that time, and 

only went back into effect on October 2, 2012, and thus, no notice was 

required. 

Mr. Brolley did not file a post-trial motion following the trial court’s 

determination.2 Rather, he appealed to this Court on March 9, 2017, and 

thereafter complied with the court’s order to file a Rule 1925(b) concise 

statement of errors complained of on appeal. He presents two issues for our 

review:

1. Whether the trial court erred and abused its discretion in failing 

to address and apply the affirmative defense of collateral 

estoppel, a legal doctrine separate and apart from res judicata, 

and dismiss the Appellee’s mortgage foreclosure action?

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2

 On June 21, 2017, this Court issued a rule to Appellant to show cause why 

the appeal should not be dismissed for failure to file post-trial motions

following the March 9, 2017 decision. Appellant filed a timely response in 

which he maintained that post-trial motions were not mandated by the Rules 

and, further that he filed a set of post-trial motions on June 23, 2017, “[o]ut 

of an abundance of caution.” Response of Appellant to Order to Show Cause 

of June 21, 2017, 6/30/17, at 4. The rule was discharged and the matter 

referred to this Panel for disposition. 
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2. Did the trial court err and abuse its discretion by applying the 

incorrect date concerning when the Appellee should have 

issued an Act 91 Notice, 35 PS section 1680.403c, and 

erroneously finding that the temporary suspension of such preforeclosure notice applied in this matter?

Appellant’s brief at 4. 

Preliminarily, Mortgagee contends that the foregoing issues are waived 

as Mr. Brolley failed to file a post-trial motion pursuant to Pa.R.C.P. 

227.1(c)(2), following the March 9, 2017 non-jury verdict. Rule 227.1(c)(2) 

provides: “Post-trial motions shall be filed within ten days after notice of 

nonsuit or the filing of the decision in the case of a trial without [a] jury.” 

Post-trial motions preserve issues for appeal because issues not raised in the 

lower court are waived. See Chalkey v. Roush, 805 A.2d 491 (Pa. 2002); 

see also Newman Development Group of Pottstown, LLC v. Genuardi’s 

Family Markets, Inc., 52 A.3d 1233 (Pa. 2012).

Mr. Brolley maintains that he was not required to file a post-trial motion 

because Pa.R.C.P. 227.1(i), dealing specifically with cases on remand for 

further proceedings, governed. That subdivision provides that:

a motion for post-trial relief relating to subsequent rulings in the 

trial court shall not be required unless

(1) The appellate court has specified that the remand is 

for a complete or partial new trial, or

(2) The trial court indicates in its order resolving the 

remand issues that a motion for post-trial relief is

required pursuant to this rule. 
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Pa.R.C.P. 227.1(i). The 2015 Explanatory Comment to the Rule explains that 

subdivision (i) was added that year to address the gap in the rule where a 

matter is remanded for further consideration by the trial court, and “to give 

the practitioner certainty as to when a motion for post-trial relief is required 

in the remand context.” 2015 Explanatory Comment. Mr. Brolley points out

that this Court did not specifically remand for a new trial or partial new trial. 

Nor did the trial court indicate that a motion for post-trial relief was required. 

Thus, he contends that, under the express language of subdivision (i), he was 

not required to file post-trial motions on the facts herein. 

The record confirms that this Court did not order a new trial or partial 

new trial upon remand. The trial court, after addressing the subject of the 

remand, ordered a new trial. The parties were directed to comply with all 

pretrial formalities. Additional testimony was taken; new exhibits were 

offered. In our view, the proceedings on remand constituted a trial. However, 

after the amendment to Rule 227.1 to include subdivision (i), the issue is not 

whether the proceeding on remand constituted a trial. Rather, the proper 

inquiry is whether our remand called for “a complete or partial new trial,” or 

whether the trial court required Mr. Brolley to file a new post-trial motion. 

Since neither occurred, the filing of post-trial motions following remand was 

not required in order to preserve issues for appellate review. Hence, we find 

no waiver. 
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Mr. Brolley contends that the instant mortgage foreclosure action is 

barred by the doctrines of res judicata and collateral estoppel. He maintains 

that the prior in rem judgment in mortgage foreclosure on the note securing 

the Property is a bar to the instant action. He argues that the trial court erred 

in finding that res judicata only barred recovery for matters covered by the 

first judgment and that another action could be maintained based on the 

subsequent default. He also claims the trial court should have addressed his 

claim that collateral estoppel applied. Mortgagee counters that res judicata

and collateral estoppel do not apply to bar this action because of the 

continuing nature of the contractual relationship and the possibility of 

numerous defaults. See Appellee’s brief at 3. 

As our sister court noted in Robinson v. Frye, 192 A.3d 1225, 1228 

(Pa.Cmwlth. 2018), “[t]echnical res judicata (claim preclusion) and collateral 

estoppel (issue preclusion) are ‘related, yet distinct’ components of the 

doctrine known as res judicata.” We recently reaffirmed that “the decision to 

allow or to deny a prior judicial determination to collaterally bar relitigation of 

an issue in a subsequent action historically has been treated as a legal issue.” 

Rickard v. Am. Nat'l Prop. & Cas. Co., 173 A.3d 299, 304 (Pa.Super. 2017) 

(en banc) (quoting Westfield Ins. Co. v. Astra Foods Inc., 134 A.3d 1045,

1049-50 (Pa.Super. 2016). Hence, as with all legal questions, “our standard 

of review is de novo and our scope of review is plenary.” Skotnicki v. 

Insurance Department, 175 A.3d 239, 247 (Pa. 2017). 
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Res judicata is a doctrine that operates to foreclose repetitious litigation 

by barring parties from re-litigating a matter that was previously litigated or 

could have been litigated. The doctrine only applies where four common 

elements exist: “(1) identity of issues; (2) identity of causes of action; (3) 

identity of persons and parties to the action; and (4) identity of the quality or 

capacity of the parties suing or sued.” Wilkes ex rel. Mason v. Phoenix 

Home Life Mut. Ins. Co., 902 A.2d 366, 378 n.9 (Pa. 2006). Under the 

doctrine of res judicata, a judgment on the merits in a prior suit bars a second 

suit on the same cause of action or one that could have been brought in the 

prior action. Weinar v. Lex, 176 A.3d 907, 909 (Pa.Super. 2017). 

The related doctrine of collateral estoppel or issue preclusion applies if:

“(1) the issue decided in the prior case is identical to the one presented in the

later case; (2) there was a final judgment on the merits; (3) the party against

whom the plea is asserted was a party or in privity with a party in the prior

case; (4) the party or person privy to the party against whom the doctrine is

asserted had a full and fair opportunity to litigate the issue in the prior

proceeding; and (5) the determination in the prior-proceeding was essential

to the judgment.” R. W. v. Manzek, 888 A.2d 740, 748 (Pa. 2005). As

distinguished from res judicata, which bars subsequent claims that could have

been litigated in the prior proceeding, but which were not, collateral estoppel

only bars litigation of issues that were actually litigated in the prior action. 

Chada v. Chada, 756 A.2d 39, 43 (Pa.Super. 2000). 
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Upon remand from this Court, the trial court was directed to consider

whether res judicata or collateral estoppel were defenses to the current action

in mortgage foreclosure. The trial court determined that res judicata barred

recovery for default occurring as of the date of the earlier mortgage

foreclosure judgment. However, it reasoned that since the mortgage is an 

installment contract, successive actions could be maintained for breach of an 

installment. In reaching its conclusion, the trial court cited Fairbanks Capital 

Corp. v. Milligan, 234 Fed. Appx. 21 (3d Cir. 2007) (holding doctrines of res 

judicata or collateral estoppel did not bar a second mortgage foreclosure 

action based on later default where first action was settled and the suit

dismissed with prejudice), and a non-precedential memorandum decision of 

this Court where the first action in mortgage foreclosure resulted in a finding 

of no default.3 For the reasons that follow, the trial court’s reasoning is flawed.

In relying upon the aforementioned cases, the trial court failed to 

appreciate a critical factual distinction: the first mortgage foreclosure action 

in those cases did not culminate in a foreclosure, and hence, the mortgage 

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3

 The trial court’s citation to an unpublished memorandum decision of this 

Court was prohibited under Pa. IOP Super. Ct. 65.37 (“An unpublished 

memorandum decision shall not be relied upon or cited by a Court or a party 

in any other action or proceeding, except that such a memorandum decision 

may be relied upon or cited (1) when it is relevant under the doctrine of law 

of the case, res judicata, or collateral estoppel, and (2) when the 

memorandum is relevant to a criminal action or proceeding because it recites 

issues raised and reasons for a decision affecting the same defendant in a 

prior action or proceeding.”). That IOP was recently amended to permit 

persuasive citation to memorandum decisions filed after May 1, 2019. 
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remained in effect after that proceeding. Accordingly, the mortgagor’s 

responsibility for the monthly payments continued, and the potential for 

default remained. Those courts reasoned that, in the event of a subsequent 

default, mortgagee could file a new foreclosure proceeding limited to amounts 

owing after that default. 

That reasoning is misplaced on the facts herein. In this case, Mortgagee 

prevailed in the first mortgage foreclosure action, and a judgment in mortgage 

foreclosure was entered at No. 8805 of 2007. Under Pennsylvania law, “[t]he 

doctrine of merger of judgments . . . 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.”4 EMC Mortg., LLC v. 

Biddle, 114 A.3d 1057, 1064 (Pa.Super. 2015) (quoting In re Stendardo, 

991 F.2d 1089, 1094-95 (3d Cir. 1993)). This is in accord with the general 

principle that “[w]hen a mortgage has been validly and completely foreclosed, 

it cannot ordinarily be the subject of further foreclosures.” 59 C.J.S. 

Mortgages § 722 (West 2018). 

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4 Although it is not relevant for the purposes of this appeal, we recognize an

exception to that general rule where the mortgage clearly evidences the

parties’ intent to preserve the effectiveness of a term after entry of judgment. 

EMC Mortg., LLC v. Biddle, 114 A.3d 1057, 1064 (Pa.Super. 2015); see,

e.g., In re Presque Isle Apartments, 112 B.R. 744, 747 (Bankr.W.D.Pa. 

1990) (“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.”).
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The situation herein is remarkably similar to the facts in Faulkner v. 

M&T Bank (In re Faulkner), 593 B.R. 263 (Bank.E.D.Pa. 2018). The 

mortgagee argued therein that it could institute a second mortgage 

foreclosure action even though there was a prior judgment in mortgage 

foreclosure because there were subsequent defaults. The bankruptcy court 

disagreed, finding that the argument “runs afoul of the merger doctrine.” Id. 

at 282. The court reasoned:

The entry of a foreclosure judgment fixes the positions of the 

parties: the mortgage merges into the judgment and no further 

monthly installments fall due as long as the judgment remained 

in effect. The debt secured by the mortgage is accelerated and is 

immediately due and payable in its entirety as set forth in the 

judgment. In short, there is no mortgage that could be in default 

or give rise to a new cause of action in mortgage foreclosure.

Id. at 282 (footnote omitted). 

Our recent decision in EMC Mortg., LLC, supra, and the bankruptcy 

court’s persuasive analysis in Faulkner, supra, inform our decision herein. 

In the case before us, Wells Fargo obtained an in rem judgment in mortgage 

foreclosure against the Property at No. 8805 of 2007, and assigned the 

judgment to the use of EMC Mortgage Corporation. Accordingly, the mortgage 

merged into that foreclosure judgment, and no further monthly payments 

were due. Thus, there could be no subsequent default upon which to 

foreclose, and the remedy was to execute on the Property and set it for 

sheriff’s sale. In this action, Mortgagee is attempting to re-litigate a 

completed mortgage foreclosure proceeding in which a judgment was already 

obtained. 
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We find that the prior judgment in mortgage foreclosure bars this 

subsequent action in mortgage foreclosure.5 It is undisputed that the parties 

herein were parties or privies to the parties in the prior action, and that they 

are suing and being sued in the same capacities. Both are actions for 

mortgage foreclosure based upon default under the same mortgage 

instrument. Having concluded that the mortgage merged into the prior 

judgment in mortgage foreclosure, and that thereafter, no obligation remained 

to make monthly payments, there can be no continuing default upon which to 

maintain the current mortgage foreclosure action. This matter was fully and 

finally litigated between the parties in the prior action, and the judgment in 

mortgage foreclosure entered in that action bars the current action in 

mortgage foreclosure. 

For these reasons, we need not reach the issue of whether Act 91 notice 

was proper. We vacate the judgment and dismiss the action with prejudice. 

Judgment vacated. Action dismissed with prejudice. 

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5 For purposes of this appeal and the determination whether res judicata or 

collateral estoppel barred the instant mortgage foreclosure action, it is 

irrelevant whether the praecipe to vacate the earlier judgment in mortgage 

foreclosure at No. 8805 of 2007 was legally effective. The subject matter of 

the instant foreclosure action was fully and finally litigated between the parties

or their privies, and the judgment on the merits operates as a bar to this 

action. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2019