U.S. Bank Trust N.A. v. Brolley, H.

J-S08004-22

2022 PA Super 107

U.S. BANK TRUST NATIONAL : IN THE SUPERIOR COURT OF
ASSOCIATION AS TRUSTEE OF THE : PENNSYLVANIA
LODGE SERIES III TRUST :
:
Appellant :
:
:
v. :
: No. 333 MDA 2021
:
UNKNOWN HEIRS, SUCCESSOR, :
ASSIGNS AND ALL PERSONS, FIRMS :
OR ASSOCIATIONS CLAIMING :
RIGHT, TITLE OR INTEREST FROM :
OR UNDER HELEN A. BROLLEY, :
DECEASED AND JAMES M. BROLLEY :

Appeal from the Order Entered January 13, 2021
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2007-08805

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

OPINION BY BOWES, J.: FILED: JUNE 8, 2022

U.S. Bank Trust N.A. (“U.S. Bank”), as trustee of the Lodge Series III

trust, appeals from the January 13, 2021 order denying its motion to strike

and substitute successor plaintiff. We reverse.

This Court has summarized the factual history of this case, as follows:

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., [(“Wells Fargo”)] on her property at 150 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.
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It is undisputed that no monthly payments of principal and interest
were made on or after April 1, 2006.

Wilmington Trust, Nat. Assoc. v. Unknown Heirs, 219 A.3d 1173, 1175-

76 (Pa.Super. 2019) (cleaned up). On August 1, 2007, Wells Fargo filed a

complaint in mortgage foreclosure against James Brolley, who did not dispute

that the mortgage was in arrears. See Answer, 9/17/07, at ¶ 1 (“Defendant

James Brolley admits mortgage payments are past due.”).

On June 26, 2009, EMC Mortgage Corporation filed a motion for

summary judgment. Several weeks later, EMC Mortgage Corporation filed a

praecipe to substitute itself as the successor to Wells Fargo pursuant to

Pa.R.C.P. 2352, explaining that the mortgage had been reassigned. See

Praecipe for Voluntary Substitution, 7/8/09, at 1-2. The trial court seems not

to have recognized the significance of the first substitution praecipe.

Accordingly, it granted the motion for summary judgment and entered an in

rem judgment in favor of Wells Fargo and against Mr. Brolley. See Order,

9/9/09, at 1. Thereafter, EMC Mortgage Corporation filed a second praecipe

to mark the judgment for use in its name. On March 22, 2010, EMC Mortgage

Corporation filed a praecipe for a writ of execution as to the judgment. Upon

petition by EMC Mortgage Corporation, the judgment was subsequently

amended to reflect additional damages and costs. See Order, 9/27/10, at 1-

2 (unpaginated). A sheriff’s sale of the Property was scheduled for October

1, 2010. However, on September 30, 2010, Mr. Brolley filed a notice of

Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Middle District of

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Pennsylvania. See Notice of Bankruptcy Case Filing, 9/30/10, at 1-12.

Consequently, the sheriff’s sale was stayed.1

On June 16, 2011, EMC Mortgage Corporation filed a praecipe for

substitution requesting that EMC Mortgage LLC (“EMC”) replace it as plaintiff

in the above-captioned case due to a corporate name change. The same day,

EMC Mortgage Corporation also filed a praecipe requesting that the judgment

similarly be marked for use by EMC.

In March 2012, EMC commenced a second mortgage foreclosure action

with respect to the Property. In an apparent attempt to avoid the preclusive

effect of the final judgment already issued in this case, EMC then filed a

praecipe that purported to discontinue the instant action and to vacate the

underlying judgment. See Praecipe, 4/22/13, at 1 (unpaginated) (“Please

[v]acate the judgment entered and mark the action [d]iscontinued and

[e]nded without prejudice.”). No further activity occurred in this case while

the second mortgage foreclosure lawsuit remained active.

In that parallel proceeding, the trial court held a bench trial and,

ultimately, issued a second judgment in favor of EMC on July 23, 2015. See
____________________________________________

1 The certified record offers no information as to the current status of the
bankruptcy proceedings instituted by Mr. Brolley. However, there is nothing
to suggest that the stay of sheriff’s sale has ever been lifted. Moreover, there
is no indication that the in rem judgment issued by the trial court has been
discharged as a result of the bankruptcy proceedings. See also, e.g.,
Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) (“[A] bankruptcy
discharge extinguishes only one mode of enforcing a claim—namely, an action
against the debtor in personam while leaving intact another—namely, an
action against the debtor in rem.”). Indeed, “a creditor’s right to foreclose on
the mortgage survives or passes through the bankruptcy.” Id. at 83.

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EMC Mortgage, LLC v. Unknown Heirs, et al., 153 A.3d 1110 (Pa.Super.

2016) (unpublished memorandum at 1). On appeal, this Court vacated and

remanded for the trial court to consider the affirmative defenses of res judicata

and collateral estoppel. Upon remand, “the trial court ruled that the defense

of res judicata applied to the prior judgment in mortgage foreclosure . . . but

not to subsequent defaults under the mortgage.” Wilmington, supra at

1176. Contemporaneously, EMC assigned 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 (“Wilmington”). Id. at 1177. The

caption in the second action was updated to reflect this assignment.

The trial court again entered judgment in favor of EMC. On appeal, this

Court held that the second mortgage foreclosure action was completely barred

under the doctrine of res judicata, vacated the judgment issued in the second

lawsuit, and dismissed the second mortgage foreclosure action with prejudice.

Id. at 1181. Specifically, we held as follows:

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

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Id. (cleaned up). We declined, however, to opine on the validity of the

praecipe to vacate and discontinue entered in the instant, first foreclosure

action. Id. at 1181 n.5.

On April 13, 2020, U.S. Bank filed a motion requesting that the trial

court strike the praecipe to discontinue entered almost exactly seven years

earlier by EMC and substitute Wilmington as the named plaintiff due to the

reassignment of the mortgage.2 U.S. Bank framed its request, as follows:

22. In view of the Superior Court’s dismissal of the Second
Mortgage Foreclosure Action with prejudice by reason of the final
____________________________________________

2 U.S. Bank’s putative interest or involvement in this case is not evident from
the certified record. It was not a party in either of the mortgage foreclosure
actions noted above. It is clear in its motion and attached brief that U.S. Bank
is advancing these arguments on behalf of Wilmington. But there are no
indicia that it has assumed any relevant fiduciary role as to Wilmington.
Moreover, U.S. Bank did not seek to intervene pursuant to the Pennsylvania
Rules of Civil Procedure. See Pa.R.C.P. 2326-30. Stated simply, there are
significant questions concerning U.S. Bank’s standing to maintain an appeal
in this matter. See Pa.R.A.P. 501 (providing that only a “party” or a
“fiduciary” to the underlying lawsuit who has been “aggrieved by an
appealable order” has standing to appeal). Our case law interpreting Rule 501
evinces that this rule concerns standing. See Ratti v. Wheeling Pittsburgh
Steel Corp., 758 A.2d 695, 700 (Pa.Super. 2000) (holding that an appeal
must be quashed when it is filed by a party that is “not ‘aggrieved’ and
therefore, does not have standing to appeal”).

This Court, however, is prohibited from raising such questions of standing sua
sponte. See In re Duran, 769 A.2d 497, 501 n.2 (Pa.Super. 2001) (“The
issue of standing is generally distinguishable from the issue of subject matter
jurisdiction. . . . Therefore, the issue of standing cannot be raised sua sponte
and is waived if not properly raised.”). Neither Mr. Brolley nor the trial court
has addressed this issue. Indeed, the trial court’s Rule 1925(a) opinion treats
Wilmington as the appellant in this matter without further explanation. See
Trial Court Opinion, 6/21/21, at 1. Thus, although the certified record
presents no indication that U.S. Bank has an interest in this case, we are
precluded from quashing this appeal pursuant to Rule 501.

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judgment in the First Mortgage Foreclosure Action, [Wilmington]
seeks the entry of an Order which strikes the praecipe to vacate
the judgment in that action, reactivates the First Mortgage
Foreclosure Action and substitute as [Wilmington], the real party
in interest.

23. The purpose of the within motion is to reactivate the First
Mortgage Foreclosure Action and to substitute the proper party in
interest as plaintiff in the case, so that [Wilmington] can proceed
to its remedy of sheriff’s sale more than ten (10) years after
summary judgment was first entered in its favor and against
Defendant.

Motion to Strike Praecipe to Vacate Judgment, Reactivate Case, and Substitute

Proper Party Plaintiff, 4/13/20, at ¶¶ 22-23 (hereinafter, “Motion to Strike” or

“motion to strike”).

In its supporting brief, U.S. Bank took the position that the praecipe

filed by EMC in April 2013 was invalid and that its continued efficacy would

deprive Wilmington of the opportunity to execute upon the judgment:

On the strength of the decision . . . of the Superior Court in the
Second Mortgage Foreclosure, only the judgment in
[Wilmington’s] favor and against Defendant Brolley, in this action,
remains valid and in full force and effect. It was entered after
contested litigation, and the April 22, 2013 filing of a praecipe was
ineffective to vacate it. The holder of the judgment is entitled to
enforce it by proceeding to a sheriff’s sale of the Property.
Otherwise, [Wilmington] will be deprived of the ability to enforce
the judgment and thereby recover its security for financing
extended where Defendant has failed to make any payments for
fourteen (14) years.

Brief in Support of Motion to Strike, 4/13/20, at 8-9. Mr. Brolley filed a one-

page pro se response that largely agreed with the position taken by U.S. Bank.

See Answer and Objection, 9/21/20, at 1 (unpaginated) (“With all due

respect, [the trial court] erred by failing to rule [sic] praecipe was illegal.”).

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The trial court held a hearing on the motion to strike, wherein U.S. Bank

argued that proper procedure had not been observed and that the praecipe

was invalid. See N.T. Hearing, 8/13/20, at 5 (“[I]t has no effect per the rules

of civil procedure.”). Although he was notified of the proceeding, Mr. Brolley

did not participate in the hearing. On January 13, 2021, the trial court denied

the motion to strike. U.S. Bank filed a motion for reconsideration, which was

also denied. On February 12, 2021, U.S. Bank filed a timely notice of appeal

from the order denying its motion to strike.3 The trial court directed U.S. Bank

to file a concise statement pursuant to Pa.R.A.P. 1925(b) and it timely

complied. Thereafter, the trial court filed a Rule 1925(a) opinion.

____________________________________________

3 This Court issued a rule to show cause upon U.S. Bank as to why this appeal
should not be quashed in light of the fact that “‘[a] praecipe to discontinue
constitutes a final judgment.’” See Order, 6/24/21, at 1 (quoting Levitt v.
Patrick, 976 A.2d 581, 587 (Pa.Super. 2009)). Thus, we directed U.S. Bank
to address the appealability of the trial court’s January 13, 2021 order. It filed
a response arguing that “[b]y denying [U.S. Bank’s] motion to strike the
praecipe, the ruling expressed in the January 13, 2021 [o]rder resolves all
issues between the parties.” U.S. Bank’s Brief in Response, 9/15/21, at 3.
Although this Court discharged the rule to show cause, we reserved a
definitive ruling on this issue of appealability.

As noted above, a discontinuance is a final judgment for the purposes of
appealability. See Levitt, supra at 587. However, U.S. Bank filed a motion
requesting that the trial court strike off the discontinuance in this case. The
trial court’s consideration and entry of an order denying the motion to strike
constituted new proceedings in this case. Furthermore, that ruling reaffirmed
the preclusive effect of the discontinuance and, thereby, disposed of all claims
and all parties. Accordingly, the order was final and appealable pursuant to
Pa.R.A.P. 341(a)-(b)(1) (providing that “an appeal may be taken as of right
from any final order of a government unit or trial court,” including an order
that “disposes of all claims and of all parties”).

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U.S. Bank raises the following issues for our consideration:4

1. Did the trial court err in denying [U.S. Bank’s] motion to
strike praecipe dated April 22, 2013 to vacate final judgment and
[discontinue] action, so the case would be reactivated?

2. Is [U.S. Bank] entitled to prosecute the action in the name
of Wilmington Trust as . . . the real party in interest?

Plaintiff’s brief at 4.

U.S. Bank’s first claim concerns the trial court’s denial of its request to

strike off the discontinuance. Instantly, the trial court’s refusal to strike off

the discontinuance was largely based upon equitable grounds:

For lack of a better phrase, arguably, [EMC] “went all in” on the
[second mortgage foreclosure action] and determined that filing
the praecipe, which was intended to vacate the judgment [in this
case], was necessary in order to proceed in the 2012 docket. After
approximately seven years of contested litigation[,] the
Pennsylvania Superior Court dismissed the 2012 action with
prejudice. With no way to collect a judgment in the 2012 action[,
U.S. Bank] filed the motion to strike the April 22, 2013 praecipe
and now attempts to collect under the 2007 docket.

The principles of fairness and finality embedded in the doctrine of
res judicata led this [c]ourt to deny [U.S. Bank’s] motion to strike
the April of 2013 praecipe. The principle[s] of fairness dictate that
a bank or mortgage company cannot have a judgment against a
defendant in one action and commence a new action for
subsequent defaults. As Pennsylvania law has developed, it is
clear that such a situation would trigger the doctrines of res
judicata and merger. In this matter[,] the Pennsylvania Superior
Court found that the judgment entered in the 2007 action had res
judicata effects which barred the 2012 judgment. In order to fully
prosecute the 2012 action[, Wilmington] had to believe that the
praecipe to vacate the judgment was effective and that the 2012
action was the only active action. To let [U.S. Bank] have it both
ways would be inherently unfair to [Mr. Brolley] who thought that
____________________________________________

4 Mr. Brolley has not filed a brief in this matter.

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the Pennsylvania Superior Court’s opinion [in Wilmington]
concluded the litigation between the parties.

. . . . Given the factual circumstances of the case at bar, the
decision to deny [U.S. Bank’s] motion to vacate the April 2013
praecipe was rooted in the fundamental principles of fairness and
finality. At this point, [U.S. Bank] is not seeking a second bite at
the apple, [it is] actually seeking a third bite.

Trial Court Opinion, 6/21/21, at 15-17.

Discontinuances in the civil context are governed by Pa.R.C.P. 229,

which provides as follows:

(a) A discontinuance shall be the exclusive method of voluntary
termination of an action, in whole or in part, by the plaintiff before
commencement of the trial.

....

(c) The court, upon petition and after notice, may strike off a
discontinuance in order to protect the rights of any party from
unreasonable inconvenience, vexation, harassment, expense, or
prejudice.

Pa.R.A.P. 229(a), (c) (emphasis added). Under this rule, the decision of

whether to strike a discontinuance is vested in the sound discretion of the trial

court and we will not disturb its ruling on such a matter absent an abuse of

that discretion. See Robinson v. Pennsylvania Hosp., 737 A.2d 291, 292

(Pa.Super. 1999) (citing Foti v. Askinas, 639 A.2d 807, 808 (Pa.Super.

1994)). The trial court must consider “all facts and weigh equities,” while

bearing in mind “the benefits or injuries which may result to the respective

sides if discontinuance is granted.” Foti, supra at 808.

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It is well-established that a discontinuance should be stricken if the only

purpose of its entry is to seek another proceeding by a frustrated litigant:

“‘Whenever, therefore, it appears a party discontinues one suit, for the

purpose, merely, of instituting another for the same cause of action elsewhere,

the court, on motion, will set aside the discontinuance, and reinstate the

former suit, and subject the party to the consequences of his own acts.’”

Brown v. T.W. Phillips Gas & Oil Co., 74 A.2d 105, 108 (Pa. 1950) (cleaned

up); see also Pohl v. NGK Metals Corp., 936 A.2d 43 (Pa.Super. 2007)

(same); Quattrone v. Quattrone, 361 A.2d 399, 400-01 (Pa.Super. 1977)

(same). This Court has also disapproved of discontinuances entered with the

purpose of avoiding the preclusive effect of dispositive motions. See Nichols

v. Horn, 525 A.2d 1242, 1243 (Pa.Super. 1987).

At the outset of our analysis, we note that the discontinuance

complained of in this case was entered more than two years after the trial

court had entered a final judgment in favor of Wells Fargo and against Mr.

Brolley. As noted above, the text of Rule 229(c) states that a voluntary

discontinuance is only available prior to “trial.” See Pa.R.C.P. 229(c). While

the instant civil action concluded with the entry of summary judgment as

opposed to a trial followed by a verdict, we find no authority in Pennsylvania

law, nor can we conceive of any, that would countenance discontinuance of a

case more than two years after a final decision has issued.

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The more troubling aspect of the at-issue praecipe, however, is its

purported vacatur of the judgment. This Court has discussed the finality of

judgments entered due to adverse civil proceedings, as follows:

Unlike a judgment entered by confession or by default, which
remains within the control of the court indefinitely and may be
opened or vacated at any time upon proper cause shown, a
judgment entered in an adverse proceeding ordinarily cannot be
disturbed after it has become final. A judgment entered in
adverse proceedings becomes final if no appeal is filed within
thirty days. See 42 Pa.C.S. § 5505. Thereafter, the judgment
cannot normally be modified, rescinded or vacated. Similarly, it
cannot be “opened.”

This doctrine, respecting judgments entered in adverse
proceedings, has a very definite function, namely, to establish a
point at which litigants, counsel and courts ordinarily may regard
contested lawsuits as being at an end. A contested action yields
a judgment in which the value of finality is greatest. There has
been a decision following an examination of the critical issues
through bilateral participation of the parties . . . . For all the
reasons that finality of judgments is important, such a judgment
should be invulnerable except upon a showing of extraordinary
miscarriage.

A party may always request a court to reconsider a judgment
entered in adverse proceedings. However, such a request must
be made within thirty days. . . .

Although the inability of a court to grant relief from a judgment
entered in a contested action after the appeal period has expired
is not absolute, the discretionary power of the court over such
judgments is very limited. Generally, judgments regularly
entered in adverse proceedings cannot be opened or vacated after
they have become final, unless there has been fraud or some other
circumstance so grave or compelling as to constitute
“extraordinary cause” justifying intervention by the court.

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Simpson v. Allstate Ins. Co., 504 A.2d 335, 337 (Pa.Super. 1986) (cleaned

up); see also Shelly Enterprises, Inc. v. Guadagnini, 20 A.3d 491, 493-

94 (Pa.Super. 2011) (same).

Here, EMC did not petition the trial court for relief with respect to the

judgment entered in these adverse civil proceedings. It did not attempt to

make a showing of “extraordinary cause” to justify vacating, opening, or

otherwise altering the judgment entered in favor of Wells Fargo. Rather, EMC

attempted to vacate by praecipe without involving the trial court or providing

any opportunity for Mr. Brolley to be heard in opposition. While no

Pennsylvania state court has directly addressed this precise procedural

irregularity, the holding in In re Faulkner, 593 B.R. 263 (E.D.Pa. 2018)

provides persuasive authority regarding this issue.5 In that case, a plaintiff

obtained a default judgment in mortgage foreclosure in February 2003.

Approximately seven years later, the same plaintiff filed a praecipe “that

purported to vacate the 2003 [j]udgment and discontinue the action.” Id. at

274. Thereafter, the plaintiff pursued a number of additional mortgage

foreclosure actions that culminated in bankruptcy proceedings.

In reviewing the efficacy of the plaintiff’s praecipe, the district court

found that it was invalid. Two specific concerns motivated that conclusion.

____________________________________________

5 The decisions of federal courts lower than the United States Supreme Court
possess a persuasive authority, but the interpretation of state law contained
in such holdings is not binding upon this Court. See Martin v. Hale
Products, Inc., 699 A.2d 1283, 1287 (Pa.Super. 1997).

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The first was that “[u]nder the Pennsylvania Rules of Civil Procedure and

related case law, the standard mechanisms of undoing a judgment – opening

and striking – require some court involvement.” Id. at 287. The district court

also noted that “[w]hen vacatur-by-praecipe is accompanied by a

discontinuance, . . . the very case in which a party might object is closed and

ended, imposing an additional procedural hurdle to a party opposing vacatur.”

Id. at 289. Thus, the discontinuance was not successful in vacating the

judgment where the other party to the litigation had “no opportunity to contest

it and no judicial officer signed an order vacating the judgment.” Id.

Like the bankruptcy court, we find no basis in Pennsylvania law for the

proposition that a plaintiff may sua sponte discharge a final judgment by

utilizing a praecipe to discontinue. As in Faulkner, we observe that “a

judgment is not a unilateral right held by the winning party, but a

determination under the control of the court.” Id. at 287 (citing Simpson,

supra at 337). Accordingly, the praecipe filed by EMC was ineffectual to the

extent that it purported to discharge the September 9, 2009 judgment without

involving either the trial court or Mr. Brolley.

We are not unsympathetic to the trial court’s position. The succession

of plaintiffs in this case has created a procedural morass that is entirely of

their own making. After Wells Fargo secured a final judgment, the mortgage

was reassigned to EMC, which found it prudent to file a discontinuance in this

case in an attempt to pursue a duplicative foreclosure action. When that

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gambit ultimately failed some seven years later, the mortgage had been

reassigned to Wilmington. Now faced with the prospect that Wilmington will

be unable to collect on the original judgment, U.S. Bank is attempting to

unwind these earlier procedural decisions that, frankly, have needlessly

consumed significant judicial resources.

Yet, the discontinuance must be struck off nonetheless. Viewed through

the lens of the case law recited above, the discontinuance entered by EMC

resembles nothing so much as a collateral assault on the judgment and an

attempt to circumvent its preclusive effect. Such gamesmanship cannot be

countenanced under Pennsylvania law. Furthermore, we must not permit

practice that would allow one party to a litigation to discharge a final judgment

on its own authority. Based upon the foregoing, we conclude that the trial

court abused its discretion in denying the motion to strike. Both procedurally

and substantively, the at-issue praecipe is improper, invalid, and erroneous.

Thus, we reverse the order of the trial court to the extent that it declined to

strike off the discontinuance.

Turning to the second issue, U.S. Bank also sought to substitute

Wilmington as the plaintiff in this matter. See Brief in Support of Motion to

Strike, 4/13/20, at 9. Specifically, Plaintiff averred that EMC had reassigned

its interest in the mortgage to Wilmington, which is supported in the

documentation attached to the motion. Id. at Exhibit D (assignment of

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mortgage to Wilmington by EMC). In its opinion, the trial court largely does

not address this aspect of U.S. Bank’s prayer for relief.

Voluntary substitution of successors is governed by Pennsylvania Rule

of Civil Procedure 2352, which provides that “[t]he successor may become a

party to a pending action by filing of record a statement of the material facts

on which the right to substitution is based.” Pa.R.C.P. 2352(a). Under the

Rules of Civil Procedure, “successor” is defined as “anyone who by operation

of law, election or appointment has succeeded to the interest or office of a

party to an action.” Pa.R.C.P. 2351. This Court has held that documentation

attached to a substitution praecipe satisfies the requirement that the party

submit a material statement of facts. See Bayview Loan Servicing LLC v.

Wicker, 163 A.3d 1039, 1047 (Pa.Super. 2017).

As noted immediately above, there is no dispute that the documentation

attached to Plaintiff’s motion would support a conclusion that EMC assigned

its rights and obligations under the mortgage to Wilmington in this matter. 6

____________________________________________

6 As an initial matter, we note that the text of Rule 2352(a) provides that
successor substitution is only available in “pending” matters. See Pa.R.C.P.
2352(a). There is scant precedent, however, regarding the proper timing of
a request for substitution. Our case law suggests that an action remains
“pending” for substitution purposes at least up until the entry of judgment.
See Clinton v. Giles, 719 A.2d 314, 318 (Pa.Super. 1998) (“We detect no
error in decision of [plaintiff] to file her request for substitution after the
verdict . . . . [A]n action is pending in the Court of Common Pleas up to the
moment judgment is entered.” (cleaned up)). No court, however, has yet
ruled that substitutions after the entry of judgment are per se improper.
Moreover, this Court has permitted successor substitution in circumstances
(Footnote Continued Next Page)

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See Brief in Support of Motion to Strike, 4/13/20, at Exhibit D. Our Supreme

Court has discussed such assignments, as follows:

An assignment is a transfer of property or a right from one person
to another; unless qualified, it extinguishes the assignor’s right to
performance by the obligor and transfers that right to the
assignee. Under the law of assignments, the assignee succeeds
to no greater rights than those possessed by the assignor. An
assignee’s rights, however, are not inferior to those of the
assignor. Ultimately, an assignee stands in the shoes of the
assignor. Privity is not an issue in cases involving assignment
claims; an assignee does not pursue a cause of action in its own
right.
Crawford Cent. School Dist. v. Com., 888 A.2d 616, 619-20 (Pa. 2005)

(cleaned up). Thus, Wilmington stands in EMC’s shoes with respect to

whatever remains of the underlying litigation in this matter. See

CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 68 (Pa.Super. 2016) (“In a

mortgage foreclosure action, the mortgagee is the real party in interest.”);

see also U.S. Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa.Super. 2009)

(indicating mortgage assignee may sue as real party in interest). Overall,

there seems to be little question regarding whether or not Wilmington is the

real party in interest with respect to the Property.

____________________________________________

analogous to this case without objection. See, e.g., U.S. Bank Nat. Assoc.
v. Rivard, 224 A.3d 799 (Pa.Super. 2019) (non-precedential decision at 1)
(observing without objection that a party plaintiff was substituted pursuant to
Rule 2352 after the entry of a summary, in rem judgment in a mortgage
foreclosure action). Pursuant to Pa.R.A.P. 126(b)(1)-(2), we may cite this
“non-precedential decision” filed after May 1, 2019, for its persuasive value.
See In re B.W., 250 A.3d 1163, 1169 n.4 (Pa. 2021). Thus, we discern
timing is not an impediment to the substitution request submitted here.

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Accordingly, we must also reverse the trial court’s order to the extent

that it denied U.S. Bank’s request to substitute Wilmington for EMC. Here,

there seems to be no relevant basis upon which to deny the request.

We reiterate, however, that the mortgage in this case merged into the

final judgment entered by the trial court. See Wilmington, supra at 1180

(“‘The entry of a foreclosure judgment fixes the positions of the parties: the

mortgage merges into the judgment and . . . [t]he debt secured by the

mortgage is accelerated and is immediately due and payable in its entirety as

set forth in the judgment.’”) (quoting Faulkner, supra at 282). This doctrine

of merger means that the terms of the underlying mortgage “no longer provide

the basis for determining the obligations of the parties,” since “there is no

mortgage that could be in default or give rise to a new cause of action in

mortgage foreclosure.” Id. Thus, while Wilmington may be capable of

executing the long-delayed judgment in the above-captioned case, it cannot

utilize this assignment as a vehicle to pursue a third foreclosure action.7

Order reversed. Case remanded. Jurisdiction relinquished.

Judge McCaffery joins this Opinion.

____________________________________________

7 We express no opinion as to the ultimate validity of the judgment beyond
holding that it could not be stricken through a praecipe to discontinue. Aside
from striking off the discontinuance, no party has yet moved to fulfill execution
of the judgment. See Kaib v. Smith, 684 A.2d 630, 632 (Pa.Super. 1996)
(“The purpose of a sheriff’s sale in mortgage foreclosure proceedings is to
realize out of the land, the debt, interest, and costs which are due, or have
accrued to, the judgment creditor.”). Accordingly, that issue is not before us.

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J-S08004-22

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/08/2022

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