J-A28011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRYN MAWR TRUST COMPANY                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

NANCY WHITE QUINN A/K/A NANCY
WHITE-QUINN

                            Appellant                No. 2846 EDA 2015


                Appeal from the Order Entered August 21, 2015
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2014-33377


BEFORE: PANELLA, J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                            FILED MARCH 07, 2017

        Appellant, Nancy White Quinn, appeals from the order entered in the

Court of Common Pleas of Montgomery County on August 21, 2015, which

entered summary judgment in favor of Appellee, Bryn Mawr Trust Company

(“BMTC”). We affirm.

        The trial court summarized the relevant facts and procedural history as

follows:

        On May 16, 2014, the Plaintiff/Appellee, [BMTC], obtained a
        default judgment against Defendant/Appellant [Ms. White Quinn]
        and Defendant Thomas A. Quinn [(“Mr. Quinn”)] in a mortgage
        foreclosure action. [Ms. White Quinn and Mr. Quinn] did not
        challenge the default judgment.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     On September 22, 2014, counsel entered his appearance for
     [Mr.] Quinn in the mortgage foreclosure action, and requested a
     stay of the upcoming sheriff’s sale. This stay was granted until
     October 29, 2014.

     On October 29, 2014, [BMTC] was the successful bidder and
     purchaser at the Sheriff’s Foreclosure Sale, making it owner of
     11 Buckwalter Circle, Royersford, PA. On December 5, 2014, the
     Sheriff’s Deed conveying title for 11 Buckwalter Circle to [BMTC]
     was recorded in the Office of the Montgomery County Recorder
     of Deeds in Book 5937, Page 00745.

     [Ms. White Quinn and Mr. Quinn] did not challenge the Sheriff’s
     Foreclosure Sale. However, [Ms. White Quinn] remained on the
     subject premises. As a result, [BMTC] filed the present
     ejectment action against [Ms. White Quinn]/Occupants on
     December 18, 2014 in the above captioned docket number.

     [Ms. White Quinn] then obtained counsel to represent her and
     the occupants in the ejectment action. On March 24, 2015,
     counsel entered his appearance and answered the complaint in
     ejectment. The filed answer effectively admitted all of the
     complaint’s averments.

     On April 6, 2015, [BMTC] filed a Motion for Summary Judgment
     in [its] ejectment action. [Ms. White Quinn’s] counsel answered
     the motion May 5, 2015. This answer likewise raised no defenses
     to entry of judgment.

     On May 20, 2015, [Ms. White Quinn] herein retained yet a
     new/different attorney to represent [her] interests in the
     ejectment action. Counsel entered his appearance, and then filed
     a Motion for Leave of Court Amend Pleading to File a Response
     to the Complaint in Ejectment. In short, [Ms. White Quinn’s] new
     counsel sought leave to amend [her] answer to the ejectment
     complaint. This new motion was consolidated for argument with
     the previously scheduled motion for summary judgment.

     On August 20, 2015, after oral argument, review of briefs, and
     review of the record, the trial court denied [Ms. White Quinn’s]
     Motion for Leave of Court Amend Pleading to File a Response to
     the Complaint in Ejectment, and granted [BMTC’s] Motion for
     Summary Judgment for possession of 11 Buckwalter Circle.

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      [Ms. White Quinn] filed the present, timely appeal.

Trial Court Opinion, filed 1/6/16, at 1-3 (internal citations omitted).

      In her first issue, Ms. White Quinn argues that both foreclosure

proceedings counsel and ejectment action counsel acted incompetently in

representing her interests. Ms. White Quinn avers counsel in the foreclosure

proceedings failed to defend her in either action by entering objections,

defenses, new matter or counterclaims, which resulted in the court entering

default judgment against her. She submits ejectment action counsel

performed no better by filing a response to BMTC’s motion for summary

judgment that argued against foreclosure rather than ejectment, the issue at

hand. Ms. White Quinn asserts the trial court should liberally grant requests

for leave to amend pleadings, in accordance with established precedent for

doing so. Ms. White Quinn insists BMTC would not be harmed by this Court’s

decision to permit her to amend the pleadings. Ms. White Quinn contends

the trial court erred by denying her motion for leave to amend the pleadings,

and concludes this Court must reverse and grant her leave to amend. We

disagree.

      “A party, either by filed consent of the adverse party or by leave of

court, may at any time change the form of action, add a person as a party,

correct the name of a party, or otherwise amend the pleading.” Pa.R.C.P.

1033. The trial court has broad discretion in deciding whether to allow a

party to amend his pleading. See Somerset Cmty. Hosp. v. Allan B.

Mitchell & Assoc., Inc., 685 A.2d 141, 147 (Pa. Super. 1996). We note the

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right to amend a pleading should not be withheld where there is a

reasonable possibility that amendment can be accomplished successfully.

See Bata v. Central-Penn Nat’l Bank of Phila., 224 A.2d 174, 182 (Pa.

1966). However, the liberal practice favoring amendment of pleadings to

allow full development of a party’s theories and averments “does not

encompass a duty in the courts to allow successive amendments when the

initial pleading indicates that the claim asserted cannot be established.”

Behrend v. Yellow Cab Co., 271 A.2d 241, 243 (Pa. 1970).

      “[T]he proper procedure for a party who wishes to contest a default

judgment is to file with the trial court a petition either to strike or open the

default judgment.” Estate of Considine v. Wachovia Bank, 966 A.2d

1148, 1152 (Pa. Super. 2009). Further, “we note that an attack on a

sheriff’s sale usually cannot be made in a collateral proceeding[,]” such as

an ejectment action. Dime Sav. Bank, FSB v. Greene, 813 A.2d 893, 895

(Pa. Super. 2002) (citation omitted). In an untimely petition to set aside a

sheriff’s sale, the petitioner must show fraud or lack of authority to make the

sale. See Mortgage Elec. Registration Sys., Inc. v. Ralich, 982 A.2d 77,

80 (Pa. Super. 2009). See also Pa.R.C.P. 3132.

      Rather than presenting claims she would submit in opposition to the

ejectment action if permitted to amend her response, Ms. White Quinn

repeatedly contends the court should have allowed her to amend in the

interests of “fundamental fairness and upholding the integrity of the local

legal profession more than anything else.” Appellant’s Brief, at 14. (Even on

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appeal, Ms. White Quinn fails to plead any specific defenses or counterclaims

that would, if substantiated, defeat BMTC’s ejectment action.) Thus, the trial

court was well within its discretion when it denied Ms. White Quinn’s motion

to amend the pleadings, as she failed to present, let alone prove, any

defense or counterclaim to BMTC’s ejectment action in her motion. See

Behrend, 271 A.2d at 243.

      To the extent Ms. White Quinn expresses an intention to reopen the

underlying default judgment in her mortgage foreclosure case, a responsive

pleading to an ejectment complaint is an inappropriate stage in the

proceedings to raise that issue. Procedurally, to contest the default

judgment, Ms. White Quinn should have filed a petition to strike or to open

the default judgment. See Estate of Considine, 966 A.2d at 1152.

Moreover, even if Ms. White Quinn raised this issue in the proper pleading,

she is well beyond the appropriate time for doing so. See Ralich, 982 A.2d

at 80 (finding petition challenging sheriff’s sale was untimely when filed

three months after sale occurred). Consequently, Ms. White Quinn’s first

issue merits no relief.

      In her second issue, Ms. White Quinn argues material issues of fact

exist in her case, which make summary judgment inappropriate. Specifically,

Ms. White Quinn contends the ejectment complaint was deficient, because

BMTC failed to attach a “complete” abstract of title in compliance with

Pa.R.Civ.P. 1054.

      We review a challenge to the entry of summary judgment as follows:

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      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).

      Arguments not raised initially before the trial court in opposition to

summary judgment cannot be raised for the first time on appeal. See, e.g.,

Harber Phila. Center City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d

1100, 1105 (Pa. Super. 2000). This Court has noted that “under Rule

1035.3, the non-moving party must respond to a motion for summary

judgment, [and] he or she bears the same responsibility as in any

proceeding, to raise all defenses or grounds for relief at the first

opportunity.” Devine v. Hutt, 863 A.2d 1160, 1169 (Pa. Super. 2004)

(citations omitted). “A party who fails to raise such defenses or grounds for

relief may not assert that the trial court erred in failing to address them.”


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Id. “Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.” Pa.R.A.P. 302(a).

       Instantly, Ms. White Quinn concedes her response to the ejectment

complaint failed to include this argument, but claims she raised it during oral

argument on BMTC’s motion for summary judgment. In its opinion, the trial

court disputes Ms. White Quinn’s contention that she presented this issue at

oral argument. The certified record does not include a transcript of the

argument for our review. However, in the interests of judicial economy, we

will not delay the disposition of this appeal to await the transcript. 1

Regardless     of   whether     she   raised   this   claim   at   the   hearing,   and

notwithstanding her admitted failure to preserve this argument as an

objection or defense in her response to BMTC’s ejectment complaint, the

argument is without merit.

       Rule 1054 dictates, “A party shall set forth in the complaint or answer

an abstract of the title upon which the party relies at least from common

source of the adverse titles of the parties.” Pa.R.Civ.P. 1054(b). Ms. White

Quinn insists this provision requires BMTC to attach a “complete and

accurate abstract of title.” Appellant’s Brief at 22.

       BMTC’s ejectment complaint describes the property and location, and
____________________________________________


1
  Counsel for Ms. White Quinn requested “necessary transcripts” when he
submitted the notice of appeal; however, the certified record does not
contain a transcript of the oral argument the court held on both motions on
August 20, 2015.



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includes a copy of the recording by the Montgomery County Recorder of

Deeds on November 28, 2001, in Deed Book Vol. 5937, page 00745. See

Complaint in Ejectment, at ¶ 3. Paragraph 4 avers BMTC acquired title to the

property at a Montgomery County Sheriff Sale on October 29, 2014. See id.,

at ¶ 4. Paragraph 5 references the underlying judgment entered in favor of

BMTC against Ms. White Quinn and Mr. Quinn, and cites to Montgomery

County Court of Common Pleas Docket Number 14-07281. See id., at ¶ 5.

BMTC’s motion for summary judgment also includes a copy of the sheriff’s

deed from the sale.

     Based on the foregoing, BMTC has sufficiently set forth an abstract of

title. See Hallman v. Turns, 482 A.2d 1284, 1287-88 (Pa. Super. 1984)

(describing plaintiff’s burden in ejectment action to establish title to

property). Ms. White Quinn failed to set forth any evidence whatsoever to

refute BMTC’s prima facie showing of ownership of the property. Thus, her

Rule 1054 challenge to BMTC’s abstract of title is meritless. Accordingly, we

find the trial court did not err as a matter of law in granting summary

judgment to BMTC.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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