J-A09042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK C. MEADE                                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

BBVA COMPASS BANK

                        Appellee                   No. 2629 EDA 2014


               Appeal from the Order entered August 8, 2014
              In the Court of Common Pleas of Wayne County
                    Civil Division at No: 203-CIVIL-2014


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MAY 12, 2015

     Mark C. Meade appeals pro se from an order of the Court of Common

Pleas of Wayne County, which sustained the demurrer of Appellee, BBVA

Compass Bank (BBVA), in this quiet title action. Upon review, we affirm.

     In another case pending before the Court of Common Pleas of Wayne

County, BBVA filed a complaint in foreclosure against Meade (the foreclosure

action), to foreclose upon a residential property located in Damascus

Township, Wayne County. In the foreclosure action, the trial court granted

BBVA’s motion for summary judgment, and Meade appealed to this Court,

docketed at No. 1137 EDA 2013.       While the appeal was pending, BBVA
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realized the Act 61 notice sent to Meade might have been defective.

Therefore, BBVA voluntarily discontinued its appeal, vacated the judgment

entered in its favor, and dismissed the foreclosure action             without

prejudice.

       On April 8, 2014, Meade filed a pro se complaint to quiet title. In his

complaint, Meade alleged that BBVA’s dismissal of the foreclosure action

constituted an abandonment of its interest in the subject property. As relief,

he requested removal of the mortgage lien on the property. BBVA did not

file a responsive pleading, but instead filed a motion for judgment on the

pleadings. In its motion, BBVA contended Meade failed to state a claim on

which relief may be granted.           The trial court treated BBVA’s motion as

preliminary objections in the nature of a demurrer, sustained the demurrer,

and dismissed this action with prejudice. Meade then appealed to this Court.

       On appeal, we read Meade’s brief as encompassing three arguments:

the trial court erred in (1) considering the motion for judgment on the

pleadings as preliminary objections; (2) sustaining the demurrer; and (3)

denying leave to amend the complaint.




____________________________________________


1
  Act of Jan. 30, 1974, P.L. 13, No. 6, as amended, 41 P.S. §§ 101-605.
Section 403 of Act 6, 41 P.S. § 403 requires residential mortgage lenders to
provide notice of intent to foreclose before initiating foreclosure proceedings.



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        “After the relevant pleadings are closed, but within such time as not to

unreasonably delay the trial, any party may move for judgment on the

pleadings.” Pa.R.C.P. No. 1034(a).

        Entry of judgment on the pleadings is appropriate when there
        are no disputed issues of fact and the moving party is entitled to
        judgment as a matter of law. Our scope of review is plenary and
        we will reverse only if the trial court committed a clear error of
        law or if the pleadings disclose facts that should be submitted to
        a trier of fact. We accept as true all well-pleaded allegations in
        the complaint.

Sisson v. Stanley, 109 A.3d 265, 274 (Pa. Super. 2015) (quoting

Consolidation Coal Co. v. White, 875 A.2d 318, 325 (Pa. Super. 2005)).

In considering a motion for judgment on the pleadings, the court is guided

by the same principles that apply to preliminary objection in the nature of a

demurrer.     London v. Kingsley, 81 A.2d 870, 871 (Pa. 1951).               “The

question presented in a demurrer is whether, on the facts averred, the law

says with certainty that no recovery is possible.” Bruno v. Erie Ins. Co.,

106 A.3d 48, 56 (Pa. 2014) (internal quotation omitted).

        Although we agree with Meade that BBVA’s motion for judgment on

the pleadings was premature, the trial court did not err in converting the

motion into preliminary objections in the nature of a demurrer.              Rule

1034(a) permits a motion for judgment on the pleadings only “after the

relevant pleadings are closed,” and here the relevant pleadings were not

closed. We do not find reversible error for several reasons. First, the same

legal   standard   governs   judgment    on   the   pleadings   and   preliminary

objections in the nature of a demurrer.       Sisson, supra; London, supra;

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Bruno; supra.      Second, to the extent that BBVA defaulted by failing to

plead in response to the complaint, we note Meade never moved the trial

court to enter default judgment as required under Pa.R.C.P. No. 1066(a).

Third, the trial court gave Meade a full and fair opportunity to contest BBVA’s

motion through briefing and oral argument.           Therefore, he suffered no

prejudice when the trial court disregarded BBVA’s procedural misstep. See

Pa.R.C.P. No. 126 (proving for liberal construction of the rules and

disregarding of procedural defects that do not affect a party’s substantial

rights). In sum, the trial court did not err in converting BBVA’s motion for

judgment on the pleadings into preliminary objections.

      Having rejected Meade’s first argument, we turn to his second

argument that the trial court erred in granting BBVA’s motion for judgment

on the pleadings. Meade argues BBVA’s dismissal of the foreclosure action

abandoned its interest in the subject property. Rule 1061 provides that a

person may bring a quiet title action:

      (1) to compel an adverse party to commence an action of
      ejectment;

      (2) where an action of ejectment will not lie, to determine any
      right, lien, title or interest in the land or determine the validity or
      discharge of any document, obligation or deed affecting any
      right, lien, title or interest in land;

      (3) to compel an adverse party to file, record, cancel, surrender
      or satisfy of record, or admit the validity, invalidity or discharge
      of, any document, obligation or deed affecting any right, lien,
      title or interest in land; or

      (4) to obtain possession of land sold at a judicial or tax sale.



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Pa.R.C.P. No. 1061(b). The trial court considered Meade’s complaint under

subsections (2) and (3), based upon BBVA’s alleged discharge of its

ownership interest in the subject property.

      We hold the trial court did not err in granting BBVA’s motion for

judgment on the pleadings.       Meade bases his quiet title action on an

allegation that BBVA abandoned its interest in the subject property by

dismissing the foreclosure action.    That dismissal, however, was without

prejudice. “Without prejudice” means “[w]ithout loss of any rights; in a way

that does not harm or cancel the legal rights or privileges of a party.” Black’s

Law Dictionary 1740 (9th ed. 2009). This definition is directly at odds with

any notion of abandonment, which is “[t]he relinquishing of a right or

interest with the intention of never reclaiming it.” Id. at 2; see also J.W.S.

Delavau, Inc. v. E. Am. Transp. & Warehousing, Inc., 810 A.2d 672,

684-85 (Pa. Super. 2002) (quoting Commonwealth v. Wetmore, 447 A.2d

1012, 1014 (Pa. Super. 1982)) (“Abandonment involves an intention to

abandon, together with an act or omission to act by which such intention is

apparently carried into effect.”).        Therefore, BBVA’s dismissal without

prejudice in no way impaired its interest in the subject property or its right

to reinstitute foreclosure proceedings.

      Finally, Meade argues the trial court erred in dismissing the quiet title

action with prejudice, and should have granted him leave to amend. “While

the right to amend should not be withheld where there is some reasonable

possibility that amendment can be accomplished successfully, “[w]here

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allowance of an amendment would . . . be a futile exercise, the complaint

may be properly dismissed without allowance for amendment.” Wiernik v.

PHH U.S. Mortg. Corp., 736 A.2d 616, 624 (Pa. Super. 1999) (quoting

Carlino v. Whitpain Inv’rs, 453 A.2d 1385, 1388 (Pa. 1982)). Here, the

trial court found that amendment would be futile, because Meade’s legal

theory rested entirely on the effect of BBVA’s dismissal of the foreclosure

action without prejudice.   Moreover, Meade has not stated how he would

amend his complaint to plead a viable cause of action. Therefore, the trial

court did not abuse its discretion in denying leave to amend.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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