J-S03016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JP MORGAN CHASE BANK, NATIONAL                IN THE SUPERIOR COURT OF
ASSOCIATION                                         PENNSYLVANIA

                           Appellee

                    v.

ERIC MEWHA

                                                  No. 1415 EDA 2014
APPEAL OF: INTERVENORS, MELISSA
AND DARRIN DOUGHERTY

                     Appeal from the Order April 30, 2014
              In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2013-11685


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                        FILED MARCH 30, 2015

      Appellants, Melissa and Darrin Dougherty appeal from the order

entered April 30, 2014, denying their Emergency Motion to Intervene in JP

Morgan Chase Bank, National Association’s mortgage foreclosure action.

After review, we affirm.

      The undisputed facts of this case are as follows.   On November 25,

2013, Appellee JP Morgan Chase Bank, National Association filed a complaint

in mortgage foreclosure against Eric Mewha, who was in default of monthly

payments due under a mortgage recorded on property located at 4205

Springhouse Lane, Aston, Pennsylvania.     The trial court entered default

judgment against Mewha on February 14, 2014.       Thereafter, on April 13,
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2014, the court amended the judgment to include additional sums sought by

JP Morgan Chase Bank.

     On April 13, 2014, after the entry of the amended default judgment,

Melissa and Darren Dougherty filed an Emergency Motion to Intervene in

Relation to an Upcoming Sheriff’s Sale and or Eviction. Appellants alleged in

the petition that on April 9, 2012, they entered a “lease to own agreement”

with Mewha with respect to the mortgaged property, which was set to

mature in 2015. They requested to join the dispute as a party to have their

alleged interest in the property protected.     Following a hearing, the trial

court denied Appellants’ petition, on the basis that no pending matter

existed in which petitioners could intervene.     See Order, 4/29/14.     This

timely appeal followed.

     Appellants raise the following issues on appeal:

     1. Whether the [c]ourt-below [sic] committed reversible error or
        abused its discretion by denying the equity based petition to
        intervene and the motion to strike given that fatal defects
        existed in the foreclosure action rendering the Prothonotary
        without jurisdiction to docket the default judgments against
        defendant Mewha; thus, the [c]ourt-below [sic] cannot
        preclude the Dougherty’s petition to intervene on the sole
        basis that it was untimely-filed for having been docketed after
        those judgments.

     2. Whether the [c]ourt-below [sic] committed reversible error or
        abused its discretion by denying the petition to intervene
        given that:

        a. The petition was indeed filed during the pendency of the
           action;

        b. The requisites of rule 2327 were satisfied;


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          c. Equitable owners are indispensable parties, the absence of
             whom divests the [c]ourt of subject matter jurisdiction;
             and,

          d. It would be inequitable to deny intervention.

      3. Whether the [c]ourt-below [sic] committed reversible error or
         abused its discretion by deny[ing] the motion to strike given
         that:

          a. The motion to strike was never addressed by the [c]ourt-
             below [sic];

          b. The motion to strike was timely filed;

          c. Fatal defects are apparent in the record of the foreclosure
             action;

          d. The Dougherty’s have a meritorious claim in the dispute[.]

Appellants’ Brief at 4.

             As a general rule, an appeal will not lie from an order
      denying intervention, because such an order is not a final
      determination of the claim made by the would-be intervenor.
      However, in some cases, the order denying intervention has the
      practical effect of denying relief to which the intervenor is
      entitled and which he can obtain in no other way. Such an order
      will be deemed final, and an appeal therefrom will be allowed. In
      order to determine the appealability of an order denying
      intervention, therefore, one must examine the ramifications of
      the order to determine whether it constitutes a practical denial of
      relief to which the petitioner for intervention is entitled and
      which he can obtain in no other way.

             Often, it is necessary to examine the merits of an
      appellant’s petition in order to determine whether the court’s
      order results in a practical denial of relief to which the appellant
      is entitled but which can be secured in no other way.

First Commonwealth Bank v. Heller, 863 A.2d 1153, 1155 (Pa. Super.

2004) (citation omitted).    See also Pa.R.A.P. 341, note (recognizing an

order denying a party the right to intervene is no longer appealable as a final

order).

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      Before we address the merits of Appellants’ motion to intervene, we

must first address the timeliness of the motion. Pursuant to Pennsylvania

Rule of Civil Procedure 2327, a petition for leave to intervene must be filed

during the pendency of the action.     “After final adjudication, a petition to

intervene is too late.” Newberg by Newberg v. Board of Public Educ.,

478 A.2d 1352, 1354-1355 (Pa. Super. 1984) (citations omitted). A motion

to intervene filed after final adjudication should be denied except in

“extraordinary circumstances.”    Jackson v. Hendrick, 446 A.2d 226, 278

(Pa. 1982) (citations omitted).

      Here, the trial court entered default judgment against Eric Mewha on

February 14, 2014, and amended the judgment on April 3, 2014. Appellants

did not file their motion to intervene until after the court amended the final

judgment, and several weeks after the court initially entered default

judgment in this matter. It is undisputed that Appellants were aware of the

foreclosure action as early as December 18, 2013, but waited until after the

entry of final judgment to file their motion to intervene.       See Appellants’

Reproduced Record at 63a (email dated 12/18/13 from Appellants’ attorney

indicating notice received regarding foreclosure action).

      Appellants   delayed   intervention   in   this   matter   at   their   peril.

Accordingly, we find no extraordinary circumstances such that would excuse

their untimely attempt at intervention. We therefore find no error in the trial




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court’s order denying Appellants’ untimely motion to intervene.1,       2
                                                                            See

Financial Freedom, SFC v. Cooper, 21 A.3d 1229 (Pa. Super. 2011)

(affirming order denying untimely motion to intervene filed after entry of

default judgment in mortgage foreclosure case).

       Appellants alternatively argue that they are indispensable parties to

the underlying mortgage foreclosure action. See Appellants’ Brief at 21-22.

Pursuant to Pa.R.C.P. 2227, a “[p]erson[ ] having only a joint interest in the

subject matter of an action must be joined on the same side as plaintiffs or

defendants.”

       As a general rule, an indispensable party is one whose rights are
       so connected with the claims of the litigants that no decree can
       be made without impairing its rights. Appellate courts have
       consistently held that property owners are indispensable parties
       in lawsuits concerning the owners' property rights.



____________________________________________


1
  Appellants additionally argue that the entry of default judgment was void
because the prothonotary allegedly failed to send Mewha appropriate notice
of judgment pursuant to Pa.R.C.P. 236.          See Appellants’ Brief at 15.
Appellants raise this issue for the first time on appeal, and, therefore, it is
waived. See Pa.R.A.P. 302(a). Nonetheless, we note that we find no
evidence that the prothonotary failed to comply with the dictates of Rule
236.
2
   To the extent that Appellants sought in their petition to stay the
proceedings or strike the entry of default judgment, our determination that
the trial court correctly denied Appellants’ petition to intervene renders a
discussion of these issues moot. See In re Barnes Foundation, 871 A.2d
792, 794-795 (Pa. 2005) (petitioner’s failure to attain intervenor status
foreclosed his ability to file a cognizable appeal relative to the court’s final
decree).



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       The absence of an indispensable party goes absolutely to the
       court’s jurisdiction. If an indispensable party is not joined, a
       court is without jurisdiction to decide the matter. The absence of
       an indispensable party renders any order or decree of the court
       null and void. The issue of “the failure to join an indispensable
       party” cannot be waived.

Sabella v. Appalachian Development Corp., 103 A.3d 83, 90 (Pa. Super.

2014) (citation omitted).3

       Appellants argue that they maintain a possessory interest in the

mortgaged property by virtue of the “lease to own” addendum to the lease

with Mewha.      Thus, they contend that “no decree could be made [in this

matter] without impairing their rights[.]”         Appellants’ Brief at 22, citing

Commercial Banking Corp. v. Culp, 443 A.2d 1154, 1156 (Pa. Super.

1982).    We note at the outset that this Court’s decision in Commercial

Banking Corp. is inapposite to this case.          Therein, this Court determined

that the mortgagee, as the “real owner of the property” was an

indispensable party to a mortgage foreclosure action.                Commercial

Banking Corp., 443 A.2d at 1156.               Herein, it is uncontested that Eric

Mewha – not Appellants – is the real owner of the property subject to the

mortgage foreclosure action.

       Although Appellants maintain that they are the equitable owners, if not

the real owners, of the foreclosed property, they provide no case law to

support their claim. Moreover, a close examination of the lease in question
____________________________________________


3
  As this issue cannot be waived, we will proceed to examine Appellants’
claim despite their failure to raise it in the court below.



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reveals that, at the time the Appellants sought to intervene in the mortgage

foreclosure action, they had not yet acquired a possessory interest in the

property. On page four of the “Agreement To Rent or Lease” there appears

a handwritten addendum which states that, “after 4/9/13 all additional

money will go into escro[w] toward purchase of house in 2015 or sooner.”

Emergency Petition to Intervene, Exhibit B.   This single clause serves as the

basis for Appellants’ contention that they maintained a possessory interest in

the property.   However, the clause clearly states that the money will be

maintained in an escrow account for the purchase of the home “in 2015 or

sooner.” Appellants do not contend that they purchased the home prior to

the mortgage foreclosure action or the filing of the motion to intervene.

Therefore, as Appellants had not yet acquired a possessory interest in the

property at the time the mortgage foreclosure action had commenced, JP

Morgan Chase Bank was not required to join them as an indispensable party.

See Financial Freedom, SFC, supra, at 1232 (“[O]nce a foreclosure has

been commenced, any person or entity acquiring an interest in the property

will be bound by decree and need not be joined.”) (citation omitted).      As

such, we disagree that Appellants qualify as indispensable parties to the

underlying action.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




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