J-A24043-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

MARK C. MEADE,                          : IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                   v.                   :
                                        :
GUARANTY BANK, KENNETH M.               :
JASTROW, KENNETH R. DUBUQUE,            :
BBVA COMPASS BANK, ROUNDPOINT           :
MORTGAGE SERVICING CORP.,               :
PRIVATE CAPITAL CORP., GIL              :
CENDEJAS, KEVIN BRUNGARAT, and          :
ZUCKER, GOLDBERG, & ACKERMAN            :
LAW FIRM, LLC,                          :
                                        :
APPEAL OF: MARK C. MEADE                : No. 394 EDA 2015


              Appeal from the Order Entered January 23, 2015,
               in the Court of Common Pleas of Wayne County,
                    Civil Division, at No(s): 369-2012 Civil

BEFORE:    PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED SEPTEMBER 11, 2015

     Mark C. Meade appeals pro se from the order entered on January 23,

2015, which granted summary judgment in favor of BBVA Compass Bank,

RoundPoint Mortgage Servicing Corp., Private Capital Group, Gil Cendejas,

and Kevin Brungarat (Compass Defendants). Upon review, we vacate the

order granting summary judgment in favor of the Compass Defendants and

remand for proceedings consistent with this memorandum.

     We set forth the complicated factual and procedural history of this

case as follows.   The genesis of this dispute involves a June 6, 2003

mortgage agreement between Meade and Guaranty Bank.        Guaranty Bank



*Retired Senior Judge assigned to the Superior Court.
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lent $199,800, secured by a note, to Meade to finance the purchase of land

and   construct   improvements    on   residential   property   in   Damascus,

Pennsylvania. In 2009, Guaranty Bank was taken over by the Office of Thrift

Supervision (OTS) and put into receivership with the Federal Deposit

Insurance Corporation (FDIC) named as receiver.          Certain of Guaranty

Bank’s assets were transferred to Compass Bank.

      On October 7, 2011, Compass Bank, through the law firm of Zucker,

Goldberg, & Ackerman (Law Firm), filed a complaint in mortgage foreclosure

against Meade for defaulting on the mortgage (Mortgage Foreclosure

Action).   On January 25, 2012, Meade filed an answer, new matter, and

counterclaims to the complaint in the Mortgage Foreclosure Action. 1

      On May 15, 2012, Meade filed the complaint at issue in this action,

asserting numerous counts against Guaranty Bank, Kenneth M. Jastrow,

Kenneth R. Dubuque,2 the Compass Defendants, and the Law Firm. Meade

asserted the following:

      (1) Compass Defendants acted in a conspiracy to bring about a
      foreclosure action when [Meade] had not defaulted on a
      mortgage; (2) Compass committed perjury by submitting, under
      oath, it is the true party in interest; (3) Compass failed to
      comply with Pennsylvania Rules of Civil Procedure (in the
      [Mortgage Foreclosure Action]); (4) Compass lacked standing to

1
  Meade disputed the propriety of the transfer of his note from Guaranty
Bank to Compass Bank.

2
 Dubuque is the former CEO of Guaranty Bank, and Jastrow is the former
CEO of an entity associated with Guaranty Bank.


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      bring foreclosure action; (5) Compass violated “UCC 3-309” by
      not having physical possession of the original note; (6) Compass
      failed to provide the required Act 6[3] notifications; (7) Compass,
      through Cendejas, committed fraud by asserting that Compass
      does not participate in the federal home [loan] modification
      program; (8) Compass, through Cendejas, committed deceptive
      practices and acts in violation of the Unfair Trade Practices and
      Consumer Protection Law [(UTPCPL)] to intentionally cause a
      foreclosure; (9) Guaranty violated UTPCPL laws as the originator
      of the loan it used unfair and deceptive practices in the
      procurement of the loan.

Trial Court Opinion, 1/23/2015, at 2 (footnote added).4

      The Compass Defendants filed preliminary objections to the complaint,

and on July 30, 2012, Meade filed an amended complaint (Amended

Complaint).    The Amended Complaint was essentially the same as the

original complaint, but added a claim asserting that the defendants

committed federal civil RICO violations.5 On August 15, 2012, the Compass

Defendants removed the case to the United States District Court for the

Middle District of Pennsylvania.   Subsequently, the district court dismissed

the RICO claims, and remanded the remaining state law issues to Wayne

County.



3
 Act 6, codified as 41 P.S. § 403, requires residential mortgage lenders to
provide notice of intent to foreclose before initiating foreclosure proceedings.
4
 These claims were similar, if not identical to, the claims Meade asserted as
counterclaims in the Mortgage Foreclosure Action.
5
 RICO is the acronym for Racketeer Influenced and Corrupt Organizations
Act, codified at 18 U.S.C. §§ 1961-1968.



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      Meanwhile, in the Mortgage Foreclosure Action, the trial court

sustained preliminary objections to Meade’s counterclaims and dismissed

those counterclaims with prejudice. On April 4, 2013, the trial court granted

summary judgment in favor of Compass Bank.          Meade filed a notice of

appeal to this Court; and thereafter, Compass Bank withdrew the Mortgage

Foreclosure Action, rendering the appeal moot, due to deficiencies in its Act

6 notice.6

      Complicating matters further, on April 8, 2014, Meade pro se filed an

action to quiet title against Compass Bank. In that action, Meade asserted

that Compass Bank’s discontinuance of the Mortgage Foreclosure Action

constituted an abandonment of its interest in the property.7

      Turning back to Meade’s Amended Complaint in the instant matter, on

August 7, 2014, Meade filed a motion for leave to amend the Amended

Complaint. That motion stated, in its entirety:

      1. This is a motion brought by the plaintiff in the above
      captioned matter to amend the complaint.

      2. The plaintiff respectfully requests the court grant leave to
      amend the complaint by Pa.R.C.P. 1033(a).



6
 The record is not clear as to whether Compass Bank has re-filed a
mortgage foreclosure action.
7
  The trial court granted Compass Bank’s preliminary objections in the
nature of a demurrer, and this Court affirmed that order on May 12, 2015.
Meade v. BBVA Compass Bank, 2629 EDA 2014 (Pa. Super. filed May 12,
2015) (unpublished memorandum).


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Motion for Leave to Amend Complaint, 8/7/2014.

     The trial court issued a rule to show cause as to why Meade should not

be permitted to amend the Amended Complaint. The rule provided further

that “[i]f an answer is filed, either party may petition for hearing or

argument[.]” Rule, 8/11/2014.        On August 18, 2014, the Compass

Defendants filed both a motion for summary judgment and an answer to the

rule to show cause.8

     On September 29, 2014, the trial court denied the Compass

Defendants’ motion for summary judgment as premature and ordered them

to file an answer to the Amended Complaint. The trial court did not rule on

Meade’s motion to amend the complaint “because no party has requested

either a hearing or a rule absolute. Additionally, [Meade did] not attach an

Amended Complaint so [the trial court was] unable to determine if there

would be any prejudice to Defendants.” Trial Court Opinion, 9/29/2014, at 3.

On September 30, 2014, Meade filed his second amended complaint (Second

Amended Complaint).

     On October 17, 2014, the Compass Defendants filed an answer to the

Amended Complaint, and on October 27, 2014, the Compass Defendants



8
   On August 25, 2014, the Law Firm filed preliminary objections in the
nature of a demurrer to the Amended Complaint. On October 7, 2014, the
trial court sustained the Law Firm’s preliminary objections in the nature of a
demurrer to the Amended Complaint and dismissed the Law firm from this
action. Meade does not challenge that ruling on appeal.


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renewed their motion for summary judgment.       On December 3, 2014, the

parties appeared before the trial court for argument on the Compass

Defendants’ motion for summary judgment.

      At that argument, Meade contended that his Second Amended

Complaint would remedy the issues set forth by the Compass Defendants in

their motion for summary judgment. N.T., 12/3/2014, at 7. He asked that

he be granted leave to file the Second Amended Complaint. Id. at 8.

      On January 23, 2015, the trial court issued an opinion and order

granting the Compass Defendants’ motion for summary judgment and did

not reference the Second Amended Complaint. On February 4, 2015, Meade

filed a notice of appeal from that order.9   The trial court did not issue an

order requiring Meade to file a statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and none was filed.

      On appeal, Meade inartfully contends that the trial court erred by

granting summary judgment in favor of the Compass Defendants, rather

than granting him leave to amend the complaint.       We are constrained to

agree.10



9
  Also, on February 4, 2015, Meade filed a request for the trial court to rule
on his motion for leave to file an amended complaint. On March 9, 2015,
the trial court filed an order denying that motion pursuant to Pa.R.A.P. 1701,
because Meade had already filed an appeal to this Court.
10
   We observe a jurisdictional issue in this case. “It is a fundamental
principle of law that an appeal will lie only from a final order unless


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            Our standard of review of a trial court’s order denying a
     plaintiff leave to amend its complaint … permits us to overturn
     the order only if the trial court erred as a matter of law or
     abused its discretion. The trial court enjoys broad discretion to
     grant or deny a petition to amend. Amendment of pleadings is
     governed by Pa.R.C.P. 1033, which provides: “A party, either by
     filed consent of the adverse party or by leave of court, may at
     any time change the form of action, correct the name of a party

otherwise permitted by rule or statute.” In re Estate of Israel, 645 A.2d
1333, 1335 (Pa. Super. 1994). Meade invokes this Court’s jurisdiction
through Pa.R.A.P. 341, which governs the appealability of final orders.
Meade’s Brief at v. Instantly, the order from which Meade appeals disposed
of all claims against the Compass Defendants. Additionally, Meade’s claims
against the Law Firm had been dismissed previously by preliminary
objection. However, a review of the record reveals uncertainty as to the
status of Meade’s claims against Guaranty Bank, Kenneth M. Jastrow, and
Kenneth R. Dubuque.

     Section 2 of the Judicial Code, 42 Pa.C.S. § 102, defines a
     “party” as follows: A person who commences or against whom
     relief is sought in a matter. The term includes counsel for such a
     person who is represented by counsel. In Gilbert v. Thomson,
     7 Pa.D. & C.2d 593 (1956), it is stated: Everyone whose name
     appears in the caption of the praecipe for writ of summons or
     complaint is not necessarily a party to the action. Parties to an
     action are those who are named as such in the record and are
     properly served with process or enter an appearance....

Silver Spring Twp. v. Pennsy Supply, Inc., 613 A.2d 108, 110 (Pa.
Cmwlth. 1992) (some citations and quotations omitted).

       Instantly, Guaranty Bank, Jastrow, and Dubuque are listed on the
caption of every complaint and filing by Meade. However, the record does
not show that they were ever served with the complaint or any other filing in
this matter. Moreover, neither Jastrow nor Dubuque is ever mentioned in
any complaint. It is also clear from the record that Guaranty Bank no longer
exists; rather, it was assumed by the OTS and its assets were distributed to
Compass. Because the order of the trial court dismisses all claims against all
parties who have been served and exist, we do not dismiss this case for lack
of jurisdiction.




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     or amend his pleading.” Although the trial court generally should
     exercise its discretion to permit amendment, see Pilotti v.
     Mobil Oil Corp., 388 Pa.Super. 514, 565 A.2d 1227, 1229
     (1989); cf. Pa.R.C.P. 126 (encouraging liberal construal of the
     civil rules), where a party will be unable to state a claim on
     which relief could be granted, leave to amend should be denied.

The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926-27 (Pa.

Super. 2004) (some citations omitted).

           Despite this liberal amendment policy, Pennsylvania
     appellate courts have repeatedly ruled that an amendment will
     not be permitted where it is against a positive rule of law, or
     where the amendment will surprise or prejudice the opposing
     party. The prejudice, however, must be more than a mere
     detriment to the other party because any amendment requested
     certainly will be designed to strengthen the legal position of the
     amending party and correspondingly weaken the position of the
     adverse party. The mere fact that the adverse party has
     expended time and effort in preparing to try a case against the
     amending party is not such prejudice as to justify denying the
     amending party leave to amend [by asserting] an affirmative
     defense which has a substantial likelihood of success.

            All amendments have this in common: they are offered
     later in time than the pleading which they seek to amend. If the
     amendment contains allegations which would have been allowed
     inclusion in the original pleading (the usual case), then the
     question of prejudice is presented by the time at which it is
     offered rather than by the substance of what is offered. The
     possible prejudice, in other words, must stem from the fact that
     the new allegations are offered late rather than in the original
     pleading, and not from the fact that the opponent may lose his
     case on the merits if the pleading is allowed.... [D]enial of a
     petition to amend, based on nothing more than unreasonable
     delay, is an abuse of discretion. The timeliness of the request to
     amend is a factor to be considered, but it is to be considered
     only insofar as it presents a question of prejudice to the
     opposing party, as by loss of witnesses or eleventh hour
     surprise.




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Capobianchi v. BIC Corp., 666 A.2d 344, 346-47 (Pa. Super. 1995)

(citations and quotations omitted).

      Instantly, the trial court sets forth no analysis whatsoever as to why it

did not permit Meade leave to amend the complaint. At the September 8,

2014 argument, the trial court told Meade, “I don’t know what your

amended complaint is going to state.” N.T., 9/8/2014, at 9. In the order it

issued thereafter, the trial court explained: “This Court has not ruled upon

Plaintiff’s Motion to Amend the Complaint because no party has requested

either a hearing or a rule absolute. Additionally, Plaintiff does not attach an

Amended Complaint so this Court is unable to determine if there would be

any prejudice to Defendants.” Order and Opinion, 9/29/2014, at 3.

      Meade    filed   the   Second   Amended    Complaint    the   next   day.

Subsequently, during argument on the Compass Defendants’ properly-filed

motion for summary judgment, Meade argued that the Second Amended

Complaint should be answered. N.T., 12/3/2014, at 7.         Nevertheless, the

trial court makes no reference to the Second Amended Complaint in its

order. We conclude that the trial court abused its discretion in this regard.

The trial court, in the first instance, must determine whether the Compass

Defendants suffer prejudice from permitting Meade to amend the complaint.

Accordingly, we vacate the order granting the Compass Defendants’ motion




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for summary judgment, and remand this case to the trial court for

proceedings consistent with this memorandum.

     Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/11/2015




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