J. A17040/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON            :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
GREGORY WASHINGTON,                    :
WICK SAVAGE, THE BANK OF               :
NEW YORK MELLON, F/K/A THE BANK        :
OF NEW YORK, AND INTERVENOR            :
PLAINTIFFS EUGENE MATTIONI AND         :
MARIE J. MATTIONI,                     :
F/K/A MARIE J. KILLIAN                 :
                                       :          No. 2100 EDA 2018
APPEAL OF: EUGENE MATTIONI AND         :
MARIE J. KILLIAN MATTIONI              :


                 Appeal from the Order Entered June 8, 2018,
            in the Court of Common Pleas of Philadelphia County
           Civil Division at No. September Term, 2016 No. 00219


BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 08, 2019

     Eugene Mattioni and Marie J. Killian Mattioni (“appellants”)1 appeal the

June 8, 2018 order2 entered in the Court of Common Pleas of Philadelphia

County granting Gregory Washington (“the Record Title Owner”) and

Wick Savage’s (“Savage”) motion to strike appellants’ lis pendens relating to




1We note that both appellants are attorneys and represent themselves in this
matter.

2 We note that the order was executed on June 7, 2018, but not entered on
the docket until June 8, 2018. The caption has been updated to reflect the
date the order was docketed.
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the property located at 4115-19 Gypsy Lane, Philadelphia, Pennsylvania

(“the Property”). We affirm.

     The trial court set forth the factual and procedural history as follows:

           On September 6, 2016, [] Bank of New York Mellon
           [(“BNY Mellon”)] filed a mortgage foreclosure
           complaint against [the Record Title Owner] regarding
           a mortgage that it holds on the Property. On June 29,
           2017, a default judgment was entered against the
           Record Title Owner for failing to file a timely answer
           to [BNY Mellon’s] complaint. The date for the Sheriff’s
           Sale was postponed by requests of [BNY Mellon] and
           the Record Title Owner several times so that the
           Property could be sold through a short sale
           transaction.

           On April 16, 2018, [appellants] filed a Petition to
           Intervene[Footnote 1] and a Motion to Stay any Short
           Sale between [BNY Mellon] and the Record Title
           Owner. [Appellants] own and reside at 4111 Gypsy
           Lane and also own 4109 Gypsy Lane, which are
           located immediately adjacent to the Property. As part
           of the mortgage action, [appellants] filed a
           lis pendens on the Property as well as a Third Party
           Complaint against [BNY Mellon], the Record Title
           Owner, and [] Savage.[Footnote 2]

                 [Footnote 1] The trial court entered an
                 ex parte order granting [appellants’]
                 Petition   to   Intervene.        Whether
                 [appellants] have a sufficient interest in
                 the mortgage action to have been granted
                 intervenor status is not the subject of this
                 appeal.[3]




3 We note that appellate courts are prohibited from raising the issue of
standing sua sponte because “[w]hether a party has standing to maintain an
action is not a jurisdictional question.” See In re Nomination Petition of
deYoung, 903 A.2d 1164, 1168 (Pa. 2006). Therefore, we cannot address
whether intervention was proper in this case.


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                  [Footnote 2] [] Savage allegedly resides
                  in and has an ownership interest in the
                  Property.

            In their lis pendens, [appellants] assert that the
            Record Title Owner abandoned and failed to maintain
            an easement that allegedly encroaches on the
            Property.[4]      In their complaint, [appellants]
            requested injunctive relief to stay any sale and
            asserted claims of negligence, waste, breach of
            contract, recision of the easement, and trespass, for
            which they sought monetary damages.

            On May 16, 2018, the Record Title Owner [and
            Savage] filed a Motion to Strike the lis pendens on
            the Property. On June 8, 2018, the trial court granted
            the motion striking the lis pendens on the Property.
            On July 3, 2018, [appellants] filed this timely appeal.

Trial court opinion, 8/29/18 at 1-2. The trial court did not order appellants to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). However, the trial court filed a Rule 1925(a) opinion.

      Appellants raise the following issues for our review:

            1.    Whether a dispute over the viability of a land
                  locked easement of ingress and egress for
                  pedestrians and vehicles between adjoining
                  residential properties is a property interest
                  subject to a Lis Pendens in order to place
                  prospective purchasers of either the dominant
                  estate or servient estate on notice of the dispute
                  and litigation and the potential that the

4  The record reveals that the easement encroaches, or intrudes, upon
appellants’ property, the servient estate, for the benefit of the Record Title
Owner’s Property, the dominant estate. See Grant of Easement, Reproduced
Record at 46a (stating, a perpetual easement of ingress and egress, for
pedestrian and vehicular traffic, is granted and shall extend only to the current
driveway, the bridge, and the turnaround area immediately adjacent to the
bridge on Premises A (appellants’ property) in favor of Premises B (Record
Title Owner’s Property)).


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                  easement will         be    extinguished   by   the
                  litigation? . . . .

            2.    Is the decision and conclusion of law of the [trial
                  court] supported by competent evidence and
                  applicable law and an abuse of discretion[?]
                  Should the [trial c]ourt’s Order striking the
                  Lis Pendens be reversed as not in compliance
                  with competent evidence, law and an abuse of
                  discretion?

Appellants’ brief at 2-3 (footnote omitted).5

      Preliminarily, we must resolve the jurisdictional issue raised sua sponte

by this court. (See per curiam order, 8/10/18 (asking appellants to show

cause as to why the appeal should not be quashed because the order striking

the lis pendens may not be final and appealable).)            Appellants filed a

response stating the order striking the lis pendens qualified as a final order

and also a collateral order and, therefore, was appealable.       We agree this

court has jurisdiction over the appeal, and the appeal need not be quashed.

See Barak v. Karolizki, 196 A.3d 208, 220 (Pa.Super. 2018) (holding, “an




5 We note that appellants’ brief fails to comply with Pennsylvania Rule of
Appellate Procedure 2111; specifically, the brief fails to include a statement
of jurisdiction, the order or other determination in question, a statement of
both the scope of review and standard of review, and a summary of the
argument. See Pa.R.A.P. 2111(a). Although we do not condone appellants’
failure to conform to the Pennsylvania Rules of Appellate Procedure,
appellants’ failure does not hamper our review. See Kern v. Kern, 892 A.2d
1, 6 (Pa.Super. 2005) (holding, “as a practical matter, this Court quashes
appeals for failure to conform to the Rules of Appellate Procedure only where
the failure to conform to the Rules results in the inability of this Court to
discern the issues argued on appeal.”).


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order striking a lis pendens notice is an immediately appealable order, either

as a final or collateral order.”).

      A review of appellants’ brief demonstrates that both of appellants’ issues

challenge the trial court’s granting of the motion to strike appellants’

lis pendens. Therefore, we address appellants’ issues collectively.

      This court has long held:

             Lis pendens is construed to be the jurisdiction,
             power, or control which courts acquire over property
             involved in a suit, pending the continuance of the
             action, and until final judgment. The doctrine does
             not establish an actual lien on the affected property,
             but rather merely gives notice to third parties that any
             interest that may be acquired in the property pending
             the litigation will be subject to the result of the action.
             Finally, Lis pendens is based in common law and
             equity jurisprudence, rather than in statute, and is
             wholly subject to equitable principles.

Dorsch v. Jenkins, 365 A.2d 861, 863-864 (Pa.Super. 1976) (citations and

internal quotations omitted). When reviewing matters of equity, this court is

limited to determining whether the trial court committed an error of law or

abused its discretion. Barak, 196 A.3d at 223.

      Courts must apply a two-part test to determine if a lis pendens should

be stricken. Id. at 222.

             [S]tep one “is to ascertain whether title is at issue in
             the pending litigation.” In re: Foremost Industries,
             Inc. v. GLD, 156 A.3d 318, 322 (Pa.Super. 2017). If
             this first prong is satisfied, the analysis proceeds to a
             second step where:

                   the [trial] court must balance the equities
                   to determine whether (1) the application


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                  of the doctrine is harsh or arbitrary and
                  (2) whether the cancellation of the
                  lis pendens would result in prejudice to
                  the non-petitioning party.

            Id. at 322-323[, ]quoting Rosen v. Rittenhouse
            Towers, 334 Pa.Super. 124, 482 A.2d 1113, 1116
            (1984).

Barak, 196 A.3d at 222.

      Here, appellants seek to extinguish the easement that encroaches on

their property for the benefit of the Record Title Owner’s Property.

(Appellants’ brief at 8.) Appellants argue that any potential purchaser of the

Property would want to know appellants challenge the easement. (Id. at 10.)

Appellants contend it was an abuse of discretion for the trial court to strike

the lis pendens without, among other things, visiting the Property.6 (Id.

at 13.)

      A review of the record demonstrates that the easement, which is the

basis of appellants’ lis pendens, intrudes on appellants’ property and is

appurtenant to and runs with the Property, which is the subject of the




6 We note that appellants contend, “[i]t is not necessary to cite a case to aid
in the conclusion that there is no clearer an abuse of discretion than in this
case.” We disagree. See Pa.R.A.P. 2119(a) (requiring that the argument
section of a brief shall contain “discussion and citation of authorities as are
deemed pertinent.”). We note that a review of appellants’ brief reveals no
citation to any legal authority that supports appellants’ argument that the trial
court abused its discretion in striking the lis pendens. See Stimmler v.
Chestnut Hill Hosp., 981 A.2d 145, 153 n.9 (Pa.Super. 2009) (holding that
the argument section of appellant’s brief should contain citations to the record
and legal authority, as well as analysis and application to the facts, to guide
this court in its review of the issue).


                                      -6-
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mortgage foreclosure action, for the benefit of any future owners of the

Property. (See appellants’ notice of lis pendens, 5/4/18 at Exhibit A & B.)

The trial court concluded that the imposition of a lis pendens on the Property

was improper because “title to the [P]roperty is not at issue.” (Trial court

order, 9/8/18 at n.1; see also trial court opinion, 8/29/18 at 4.)        We are

unpersuaded by appellants’ argument, which is unsupported by legal

authority, that title is at issue because a purchaser of the Property at

Sheriff’s Sale might not have use of the easement if appellants prevail in their

attempt to extinguish the easement. Appellants acknowledge that the Record

Title Owner has title to the Property. (See appellant’s motion and petition to

intervene, 4/16/18 at 1.)

      The record supports the trial court’s conclusion that title is not at issue,

and we find no abuse of discretion in the trial court’s granting of the motion

to strike the lis pendens on the grounds appellants failed to establish that

title to the Property was at issue. See Barak, 196 A.3d at 222. Consequently,

appellants’ claims that the trial court erred as a matter of law and abused its

discretion in striking the lis pendens must fail.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/8/19




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