J-S69038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NATIONAL CITY BANK                                   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

AGNES A. MANU AND STEVE A.
FREMPONG

                            Appellants                    No. 702 EDA 2014


                 Appeal from the Order Entered January 16, 2014
               In the Court of Common Pleas of Philadelphia County
                  Civil Division at No: 3849 February Term, 2010


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.:                             FILED JANUARY 16, 2015

     Appellants,       Agnes   A.   Manu    (“Manu”)   and   Steve   A.   Frempong

(“Frempong”, and collectively with Manu, “Appellants”), appeal pro se from

the January 16 2014 order granting summary judgment in favor of Appellee,

National City Bank, and ejecting Appellants from a single-family home

located   at    7000    Woodbine       Avenue,   Philadelphia,   Pennsylvania   (the

“Property”). We affirm.

     Manu and Frempong are husband and wife, and both reside at the

Property. Manu acquired the Property in 1988, and in 2001 she obtained a

$250,000 mortgage loan secured by the Property. The original mortgagee

assigned its interest in the mortgage to Appellee. Manu is the sole record

owner of the Property. Frempong was not a party to the mortgage, nor is he
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named on the deed.         Manu defaulted on the mortgage in 2006, failing to

make any payments after March 1, 2006.                 Appellee commenced a

foreclosure action on June 22, 2006 and the trial court entered summary

judgment in its favor on May 4, 2007.            This Court quashed Appellants’

appeal and the Supreme Court denied allowance of appeal.1 Appellee was

the successful bidder at an October 6, 2009 sheriff’s sale, and the deed was

recorded on January 5, 2010.

       Despite the foregoing, Appellants have refused to vacate the Property.

Appellee therefore commenced this action in ejectment on February 25,

2010. Appellants filed preliminary objections on September 20, 2010. The

trial court overruled those preliminary objections on November 9, 2010, and

Appellants filed an interlocutory appeal from that order.            Appellants

discontinued that appeal on October 31, 2011.          Subsequently, Appellants

filed in the trial court a petition to strike their discontinuance of the

interlocutory appeal, which the trial court denied on December 14, 2011.

Appellants appealed the December 14, 2011 order, and this Court quashed

that appeal on March 13, 2012.

____________________________________________


1
    Nat’l City v. Manu, 987 A.2d 833 (Pa. Super. 2009) (unpublished
memorandum), appeal denied, 998 A.2d 961 (Pa. 2010).                Manu also
challenged the foreclosure in federal court, alleging violations of various
federal statutes. The federal action was unsuccessful. Manu v. Nat’l City
Bank of Indiana, 471 F. App’x 101 (3d Cir. 2012) (“Manu II”). The
federal opinion is non-precedential, and we cite it only because it is relevant
to the procedural history of the case on appeal.



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      On July 9, 2012, Appellants filed a motion to strike the May 7, 2007

order granting summary judgment in favor of Appellee in the mortgage

foreclosure action. The trial court denied that motion on August 10, 2012,

and this Court dismissed an appeal from that order on February 25, 2013.

      Finally, on November 1, 2012, Appellants filed an answer, new matter,

and counterclaims to Appellee’s complaint in ejectment.             Appellants

amended their answer, new matter, and counterclaims on December 10,

2012, after Appellee filed preliminary objections to Appellants’ first answer.

On January 2, 2013, Appellee filed preliminary objections to the amended

answer. By order of January 28, 2013, the trial court sustained Appellee’s

preliminary   objections   to   Appellants’   answer,    new    matter,    and

counterclaims.    The trial court permitted an amended answer, which

Appellants filed on March 4, 2013. Also on that date, Appellants appealed

from the order sustaining Appellee’s preliminary objections.       This Court

quashed that appeal on June 6, 2013.

      On December 4, 2013, Appellee filed a motion for summary judgment

on its complaint in ejectment. Appellants answered that motion on January

6, 2014, alleging Appellee’s title to the Property is void because the trial

court lacked subject matter and personal jurisdiction in the underlying

foreclosure action. Specifically, Appellants’ alleged Appellee failed to effect

proper service of process in the underlying foreclosure action.      The trial




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court granted Appellee’s summary judgment motion on January 16, 2014.

That order is presently on appeal.

      Appellants raise three issues for our review:

      A. Whether [Appellee] was entitled to summary judgment for
         possession in this ejectment action when the underlying
         foreclosure judgment was entered without requisite
         jurisdiction due to Appellee’s failure to join indispensable
         party [Frempong] who was in possession of the [Property] at
         all relevant times and thus rendering [the] Sheriff’s Deed void
         ab initio and a nullity?

      B. Whether the Court of Common Pleas of Philadelphia County
         grossly erred and abused its discretion in granting Appellee’s
         motion for summary judgment as Appellee was not entitled to
         said summary judgment for possession in this ejectment
         action where Appellants raised triable issues of fact as to the
         validity of Appellee’s alleged title to deed of the Property and
         where Appellee’s right was not clear and free from doubt.

      C. Whether the lower court grossly erred and abused its
         discretion in its denial of Appellants’ preliminary objections
         and other pre-trial motions relating to lack of service as
         original process and failure to join indispensable party
         [Frempong], thus depriving the court of at least personal
         jurisdiction on him and subject matter jurisdiction in this
         case.

Appellants’ Brief at 2-3.

      We will consider Appellants’ arguments together, as each one asserts

Appellee failed to obtain valid title to the Property in the underlying

mortgage foreclosure action.

      First, we note our standard for reviewing entry of summary judgment:

            A reviewing court 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.


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            In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 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 non-moving 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 it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will view the record in the light most
      favorable to the non-moving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014).

      “Ejectment is an action filed by a plaintiff who does not possess the

land but has the right to possess it, against a defendant who has actual

possession.”    Billig v. Skvarla, 853 A.2d 1042, 1049 (Pa. Super. 2004).

“The purpose of an ejectment action as opposed to quiet title is not to

determine the relative and respective rights of all potential title holders, but

rather the immediate rights between plaintiff and defendant involved in that

particular litigation.”   Id. at 1049-50.   “The crux of an ejectment action,

therefore, rests with the plaintiffs’ ability to identify, by a preponderance of

the evidence, [. . .] the boundaries of a parcel of land to which they are out

of possession but for which they maintain paramount title.” Id. at 1050-51

(citations omitted).

      The facts of record establish beyond dispute that Appellee has

paramount title to the Property but is not in possession because Appellants



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have refused to leave.   Appellee was the successful bidder at the sheriff’s

sale of the Property and the sheriff’s deed has been recorded. Appellants do

not dispute these controlling facts. Rather, Appellants challenge the validity

of the final judgment and the sheriff’s sale in the underlying foreclosure

action.   As noted above, Appellee prevailed in the mortgage foreclosure

action and Manu exhausted her appeals.

      Nonetheless, Appellants argue the law permits a collateral attack on

the foreclosure judgment under the circumstances of this case. They rely on

Dime Sav. Bank v. Greene, 813 A.2d 893 (Pa. Super. 2002). In Greene,

as in this case, the mortgagor’s son raised the invalidity of an underlying

foreclosure and sheriff’s sale as a defense in an ejectment action.

Specifically, the mortgagor’s son asserted the sheriff’s sale was void due to

the automatic stay attendant to the mortgagor’s bankruptcy.       Id. at 895.

This Court rejected the argument based on lack of standing, but noted the

following:

             [A]n attack on a sheriff’s sale usually cannot be made in a
      collateral proceeding.     An ejectment action is a proceeding
      collateral to that under which the land was sold. Thus, where it
      is claimed that the underlying default judgment is merely
      voidable, that claim will not be entertained because such a
      judgment cannot be reached collaterally.            However, in an
      ejectment action it may be alleged that the judgment is void. A
      void decree can be attacked at any time. Where a judgment is
      void, the sheriff’s sale which follows is a nullity. A judgment is
      void when the court had no jurisdiction over the parties,
      or the subject matter, or the court had no power or
      authority to render the particular judgment. A judgment
      which is void cannot support an ejectment action and may be
      asserted as a defense in the ejectment proceeding.

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Id. (citations omitted) (emphasis added). In other words, the law permits

the defendant in an ejectment action to challenge the trial court’s jurisdiction

in an underlying foreclosure action. As we will explain, however, Appellants

cannot avail themselves of that rule in this case.

       In Meritor Mortg. Corp. v. Henderson, 617 A.2d 1323 (Pa. Super.

1992), the mortgagor died and her son began living in her house but failed

to continue making mortgage payments.            Id. at 1324.   The mortgagee

commenced a foreclosure action, but failed to post notice of the proceeding

at the property or serve notice on the son, who was the party in possession.

Id. at 1324-25. This Court held the mortgagee failed to comply with Rule

410(b)(1) of the Pennsylvania Rules of Civil Procedure. That Rule provides:

       (b)(1) If in an action involving an interest in real property the
       relief sought is possession or mortgage foreclosure, original
       process also shall be served upon any person not named as a
       party who is found in possession of the property. The sheriff
       shall note the service in the return.

Pa.R.C.P. 410(b)(1).2 Since the mortgagee failed to give adequate notice of

the foreclosure proceeding to the party in possession of the home, the trial

court had no jurisdiction to enter judgment. Henderson, 617 A.2d at 1326.

The Henderson Court therefore vacated entry of summary judgment in

favor of the mortgagee in the mortgagee’s ejectment action. Id.


____________________________________________


2
    Rule 410 was adopted in 1985 and has not been amended.




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      Instantly, Appellants’ reliance on Henderson and Rule 410(b)(1) is

misplaced. They argue that the trial court lacked subject matter jurisdiction

in the underlying foreclosure action because Appellee failed to name

Frempong as a party. Rule 410(b)(1), by its express terms, merely governs

service of process.   It requires service of process on a party found in

possession of the real property at issue, but does not require that party to

be named a defendant in the foreclosure action.     Appellants do not argue

that Appellee failed to serve process, and in any event the foreclosure

complaint indicates that process was served at 7000 Woodbine Avenue.

      Appellants also argue Appellee was required to name Frempong as a

defendant pursuant to Pa.R.C.P. 1144(a)(2), because Frempong was Manu’s

personal representative.   Rule 1144(a)(2) provides:      “The plaintiff shall

name as defendants [. . .] (2) the personal representative, heir or devisee of

a deceased mortgagor[.]”     Pa.R.C.P. 1144(a)(2) (emphasis added).       Rule

1144(a)(2) applied in Henderson, as the mortgagor was deceased and the

mortgagee was obligated to name a representative or heir as a party.

Henderson, 617 A.2d at 1325.       Here, however, Rule 1144(a)(2) has no

application because Manu is living. Appellants’ brief brazenly misquotes the

Rule, omitting, among other things, the word “deceased”:       “Plaintiff shall

name as defendants the personal representative of mortgagor.” Appellants’

Brief at 11. We strongly disapprove of Appellants’ misrepresentation of the

applicable law.


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       Appellants’ argument that the judgment and sheriff’s sale are void is

entirely lacking in merit. As noted above, Frempong was not named in the

mortgage documents or on the deed, and he has no discernable legal

interest in the Property.         Appellants fail to identify any law obligating

Appellee to name Frempong as a defendant.3

       We observe in closing that Frempong has a history of engaging in

dilatory tactics similar to those Appellants have engaged in here. In First

Union Mortgage Corp. v. Frempong, 744 A.2d 327 (Pa. Super. 1999), we

described the case as follows:                 “This case, involving an otherwise

unremarkable mortgage foreclosure action, presents a cautionary tale

regarding outrageous abuse of our legal system in order to delay collection

of a debt.”     Id. at 329.      After defaulting on his mortgage, Frempong on

several occasions removed the foreclosure action to federal court, alleging,

among other things, defective service. Id. at 329-32. Frempong also filed

for bankruptcy protection, and was eventually forbidden by the bankruptcy

court from filing any further bankruptcy actions within one year of the order

dismissing his bankruptcy action. Id. at 331-32. This Court held the trial
____________________________________________


3
   Appellants also argue that Appellee was not the proper plaintiff, as the
assignment of the mortgage from Appellee’s predecessor in interest was
incomplete as of the filing of the complaint in foreclosure. Appellants’ Brief
at 14-15. Assuming arguendo that Appellants preserved this issue in their
statement of questions involved, it does not merit relief.          Appellants’
argument addresses Appellee’s standing to bring the foreclosure action, not
the trial court’s subject matter jurisdiction over the action. See JP Morgan
Chase Bank, NA v. Murray, 63 A.2d 1258, 1262-63 (Pa. Super. 2013).



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court did not abuse its discretion in opening a final judgment in order to

permit First Union to establish the amount of damages resulting from

Frempong’s dilatory tactics:

              Beyond the shadow of a doubt, equity demanded at least
       the opening of the judgment in this extraordinary case of abuse
       of our legal system. The delay and consequent expense borne
       by First Union were entirely chargeable to Frempong both due to
       his dilatory tactics and also due to the terms of the mortgage to
       which he had agreed. By the time the trial court had vacated its
       prior summary judgment, the amount stated in its original order
       no longer in any way reflected the costs to First Union of
       collecting the money owed to it, although that had been the
       original intent of the court in entering the order. Frempong’s
       actions throughout this case have demonstrated utter contempt
       for the law. In light of his outrageous conduct, we are more
       than satisfied that the trial court neither erred nor abused its
       discretion in taking the relatively mild step of vacating its prior
       order and scheduling a hearing to assess First Union’s actual
       damages.

Id. at 334-35.4

____________________________________________


4
  Likewise, in one of the federal lawsuits Manu filed against Appellee during
the pendency of the underlying foreclosure action, Frempong asserted his
companies had an interest in a junior mortgage on the Property. Manu v.
Nat’l City Bank of Indiana, 321 F. App’x 173, 175-76 (3d Cir. 2009)
(“Manu I”). The company filed for bankruptcy protection, and Frempong
sought to intervene in the federal action and delay the Sheriff’s sale. Id.
The Third Circuit wrote:

       Thus, it appears that the companies’ alleged interests in the
       property were created in bad faith in order to frustrate the
       scheduled sheriff’s sales. In fact, the United States Bankruptcy
       Court for the Eastern District of Pennsylvania found that [the]
       bankruptcy petition was filed in bad faith.

Id. at 176. The Third Circuit also noted that a 2001 injunction prohibited
Frempong from filing new actions in District Court, and that Frempong could
(Footnote Continued Next Page)


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      Undaunted by our prior chastisement, Frempong has engaged in

similar tactics in the instant matter, albeit with his wife as the party of

record in the underlying foreclosure action.

      In summary, the record confirms that Appellee has paramount title to

the Property and is out of possession.              No genuine issue of material fact

exists in this ejectment action.         We therefore affirm the trial court’s order

entering summary judgment in Appellee’s favor.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




                       _______________________
(Footnote Continued)

not circumvent that action by filing a petition to intervene in an action
between Manu and National City Bank. Id. Again, we recognize the federal
opinion is not precedential. We cite it only to explain the lengthy history of
the underlying foreclosure action.



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