J. A17041/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON     :         IN THE SUPERIOR COURT OF
FKA THE BANK OF NEW YORK, AS    :               PENNSYLVANIA
TRUSTEE FOR THE BENEFIT OF THE  :
CERTIFICATEHOLDERS OF           :
THE CWABS INC., ASSET-BACKED    :
CERTIFICATES SERIES 2006-SD2    :
                                :
                 v.             :
                                :
GREGORY WASHINGTON AND          :
EUGENE MATTIONI AND             :
MARIE J. KILLIAN MATTIONI       :
                                :
                 v.             :
                                :
GREGORY WASHINGTON AND          :
WICK SAVAGE AND THE BANK OF     :
NEW YORK MELLON FKA THE BANK OF :
NEW YORK, AS TRUSTEE FOR THE    :
BENEFIT OF THE                  :
CERTIFICATEHOLDERS OF           :
THE CWABS INC., ASSET-BACKED    :
CERTIFICATES SERIES 2006-SD2    :
                                :              No. 3064 EDA 2018
APPEAL OF: EUGENE MATTIONI &    :
MARIE J. KILLIAN MATTIONI       :


            Appeal from the Order Dated September 18, 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
J. A17041/19

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

September 18, 2018 order2 entered in the Court of Common Pleas of

Philadelphia County sustaining the preliminary objections and dismissing with

prejudice appellants’ second amended third-party complaint. The preliminary

objections were filed by The Bank of New York Mellon FKA The Bank of

New York, as Trustee for the benefit of the Certificateholders of the CWABS

Inc., Asset-Backed Certificates Series 2006-SD2 (“BNY Mellon”) and by

Gregory Washington (“the Record Title Owner”) and Wick Savage (“Savage”),

jointly. We affirm.

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

            On September 6, 2016, [BNY Mellon] filed a mortgage
            foreclosure complaint against [the Record Title
            Owner] regarding a mortgage that [BNY Mellon] holds
            on 4115-19 Gypsy Lane, Philadelphia, Pennsylvania
            19129-5529 (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.

            On April 16, 2018, in the mortgage foreclosure action,
            [appellants][Footnote 1] filed a Petition to Intervene
            and a Motion to Stay Any Short Sale between
            [BNY Mellon]     and    the   Record    Title   Owner.
            [Appellants] also filed — in the same mortgage
            foreclosure action — a Third Party Complaint against
            [BNY Mellon], the Record Title Owner, and [Savage]
            for claims of negligence and breach of contract arising

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

2 We note that the order was executed on September 17, 2018, but not
entered on the docket until September 18, 2018. The caption has been
updated to reflect the date the order was docketed.


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            from alleged nuisance activity on the Property, which
            activity was completely unrelated to the defaulted
            mortgage. Finally, [appellants] filed a lis pendens
            on the Property.[Footnote 2]

                  [Footnote 1] [Appellants] own and reside
                  at 4111 Gypsy Lane and also own
                  4109 Gypsy Lane, which are located
                  immediately adjacent to the Property.

                  [Footnote 2] On May 16, 2018, the Record
                  Title Owner filed a Motion to Strike the
                  lis pendens on the Property, which the
                  trial court granted. [Appellants] filed an
                  appeal of that Order that is pending under
                  [Superior    Court    D]ocket    [N]umber
                  2100 EDA 2018.

            On July 18, 2018, [appellants] filed a Second
            Amended Third Party Complaint (“Third Party
            Complaint”). On August 7, 2018, [the] Record Title
            Owner and Savage filed Preliminary Objections to
            [appellants’] Third Party Complaint. On August 23,
            2018, [BNY Mellon] also filed Preliminary Objections
            to [appellants’] Third Party Complaint. [Appellants]
            filed answers in opposition to each set of preliminary
            objections.

            On September 1[8],[3] 2018, [the] trial court
            sustained both sets of preliminary objections and
            dismissed [appellants’] Third Party Complaint with
            prejudice. On October 8, 2018, [appellants] filed this
            timely [a]ppeal.

Trial court opinion, 12/10/18 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.


3The prothonotary gave written notice of the entry of the order, pursuant to
Pa.R.Civ.P. 236, on September 19, 2018. As previously noted, the order was
entered on the docket on September 18, 2018.


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      Appellants raise the following issues for our review:

            I.    Was the Order permitting [i]ntervention by
                  [appellants], whose property is burdened with a
                  private easement, proper? Should [appellants]
                  have been given notice of the [f]oreclosure
                  [c]omplaint and included as a necessary and
                  indispensable [p]arty and given the opportunity
                  to file an answer and counterclaim? Under the
                  facts of this case[,] [appellants’] [c]omplaint in
                  whole or in substantial part is proper.

            II.   Whether [appellants] have [s]tanding to
                  [i]ntervene [i]n the [m]ortgage [f]oreclosure
                  [a]ction?

Appellants’ brief at 3-4.

      Preliminarily, we feel compelled to address appellants’ failure to adhere

to the Pennsylvania Rules of Appellate Procedure governing the requirements

for appellants’ brief. See Pa.R.A.P. 2111-2119. Among its other failures,4 the

brief does not adhere to Rule 2116:        “[t]he statement of the questions

involved must state concisely the issues to be resolved, expressed in the

terms and circumstances of the case but without unnecessary detail.”

See Pa.R.A.P. 2116 (emphasis added).




4  We note that appellants raise two issues for review, but their brief is
sub-divided into three argument sections. See Pa.R.A.P. 2119 (stating, “[t]he
argument shall be divided into as many parts as there are questions to be
argued.”). Upon further examination, we note that the first two sections of
appellants’ argument are verbatim the argument presented in appellants’ brief
filed in the appeal, at Docket No. 2100 EDA 2018, of the Order granting the
motion to strike appellants’ lis pendens. Argument pertaining to another
case, which is not on-point, has no place in the argument of the instant case.


                                     -4-
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      Here, appellants’ first issue presents two questions to be resolved, as

well as a declaratory statement that appellants’ third-party complaint is

proper, an answer in the affirmative, which presumably applies to each of the

two questions, an instructional reminder on the subject of easements, and a

list of claims appellants raise in their third-party complaint and incorporate

into their brief.   (Appellants’ brief at 3.)   This statement of the questions

involved is far from concise and free of unnecessary detail. However, we are

able to discern appellants’ issue from a review of the portion of appellants’

brief pertinent to the instant case.      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.”).

      Appellants challenge the trial court’s sustaining of the preliminary

objections and dismissal of appellants’ third-party complaint with prejudice.

Appellants argue that the petition to intervene was properly granted and

because they had standing to intervene in the mortgage foreclosure action,

they had the capacity to sue. (See appellants’ brief at 18-21.)

      Our standard of review of an order granting preliminary objections is

well settled: “[i]n reviewing a trial court’s grant of preliminary objections, the

standard of review is de novo and the scope of review is plenary. Moreover,

we review the trial court’s decision for an abuse of discretion or an error of



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law.” Caltagirone v. Cephalon, Inc., 190 A.3d 596, 599 (Pa.Super. 2018)

(citations omitted), appeal denied, 195 A.3d 854 (Pa. 2018).

     Preliminary objections may be filed because a party lacks the capacity

to sue. See Pa.R.Civ.P. 2018(a)(5). The “capacity to sue refers to the legal

ability of a person to come into court.” In re Estate of Sauers, 32 A.3d

1241, 1248 (Pa. 2011).

     A trial court has discretion to grant intervention in a matter and that

decision will not be disturbed absent a manifest abuse of discretion.   See

U.S. Bank Nat’l Ass’n for Pennsylvania Hous. Fin. Agency v. Watters,

163 A.3d 1019, 1024 (Pa.Super. 2017) (citation omitted), appeal denied,

170 A.3d 973 (Pa. 2017).

           An abuse of discretion is not merely an error of
           judgment, but if in reaching a conclusion the law is
           overridden or misapplied, or the judgment exercised
           is manifestly unreasonable, or the result of partiality,
           prejudice, bias or ill-will, as shown by the evidence or
           the record, discretion is abused.

Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa.Super.

1995), citing Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934).

     This court has held:

           To petition the court to intervene after a matter has
           been finally resolved is not allowed by our Rules of
           Civil Procedure. It is only during the pendency of an
           action that the [trial] court may allow intervention.
           Pa.R.C[iv].P. 2327. An action is “pending”, according
           to Black’s Law Dictionary (5th Ed.), when it is:

                 begun, but not yet completed; during;
                 before the conclusion of; prior to the


                                    -6-
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                   completion of; unsettled; undetermined;
                   in process of settlement or adjustment.
                   Thus, an action or suit is “pending” from
                   its inception until the rendition of final
                   judgment.

Watters, 163 A.3d at 1027, citing Fin. Freedom, SFC v. Cooper, 21 A.3d

1229 (Pa.Super. 2011).      A petition to intervene in a mortgage foreclosure

action must be filed prior to the entry of the default judgment in order to be

filed during the pendency of the action. See Fin. Freedom, 21 A.3d at 1231

(emphasis added).

      Here, the record reveals that the default judgment in the mortgage

foreclosure action was entered against the Record Title Owner on June 29,

2017. Appellants did not file their petition to intervene until April 16, 2018,

more than nine months after the entry of the default judgment. Appellants

filed their petition to intervene during the stay of the sheriff’s sale on the

Property and well after the disposition of the mortgage foreclosure action.

Therefore, the petition to intervene was not filed during the pendency of the

mortgage foreclosure action and was improperly granted.5           Consequently,




5 We note that the trial court, in reaching its decision to sustain the preliminary
objections, acknowledged it was an error of law to have permitted appellants’
intervention in the mortgage foreclosure action when a final judgment had
already been entered. (See trial court opinion, 12/10/10 at 5 n.3.)


                                       -7-
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appellants lacked the capacity to file their third-party complaint because their

intervention in the mortgage foreclosure action was not proper.6

      We discern no error of law or abuse of discretion in the trial court’s

granting of the preliminary objections and dismissing appellants’ second

amended third-party complaint with prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/8/19




6 We note that the trial court also sustained the preliminary objections and
dismissed appellants’ second amended third-party complaint with prejudice
because appellants improperly joined the in personam causes of action of,
inter alia, negligence and breach of contract, with an in rem mortgage
foreclosure action. (Trial court opinion, 12/10/18 at 3-4.) We discern no error
of law or abuse of discretion in the trial court’s sustaining of the preliminary
objections for this reason. See Pa.R.Civ.P. 1146 (stating, “plaintiff may state
in the complaint two or more grounds for foreclosure but may not state more
than one cause of action”); see also Insilco Corp. v. Rayburn, 543 A.2d
120, 123 (Pa.Super. 1988) (holding, “[a]n action in mortgage foreclosure is
strictly an in rem action and may not include an in personam action to
enforce personal liability.” (citing, Pa.R.Civ.P. 1141)).


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