J-S06033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KENNETH TAGGART,                         :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
               v.                         :
                                          :
                                          :
 MORTGAGE ELECTRONIC                      :
 REGISTRATION SYSTEMS, INC;               :
 OCWEN LOAN SERVCING, LLC;                :
 EVERBANK; MERSCORP, INC.;                :
 GINNIE MAE; GMAC MORTGAGE,               :
 INC.; ANGELA MCFADDEN; LISA              :
 ROACH; ALLY BANK/GMAC                    :
 MORTGAGE                                 :          No. 1018 EDA 2017

                  Appeal from the Order February 6, 2017
           in the Court of Common Pleas of Montgomery County,
                  Civil Division at No(s): No. 2015-29789

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED APRIL 13, 2018

     Kenneth Taggart (“Taggart”) appeals from the Order (hereinafter, “the

Dismissal Order”) granting the Motion to Dismiss filed by Mortgage Electronic

Registration   Systems,   Inc.;   Ocwen       Loan   Servicing,   LLC;   EverBank;

MERSCORP, Inc.; Ginnie Mae; GMAC Mortgage, Inc.; Angela McFadden; Lisa

Roach; and Ally Bank/GMAC Mortgage (collectively, the “Defendants”), and

dismissing Taggart’s Complaint, with prejudice. We affirm.

     Taggart initially instituted this quiet title action in November 2015.

Taggart contested the validity of a 2008 mortgage to an investment property

located in Telford, Pennsylvania (hereinafter, “the Property”) that he had
J-S06033-18



secured from certain of the Defendants.1         Following a tortured procedural

history that is not relevant to the instant appeal, Taggart, pro se, filed a Third

Amended Complaint against Defendants on April 20, 2016.2,       3


       On May 20, 2016, Defendants filed a Motion to Dismiss Taggart’s Third




____________________________________________


1 In his initial Complaint and all subsequent Amended Complaints, Taggart
sought a declaration that he is entitled to ownership of the Property, which he
had purchased for over $500,000, free and clear of any mortgage, despite,
inter alia, his failure to make any mortgage payments since 2009.

2 Throughout the duration of the proceedings up to this point, Taggart had
acted pro se. Moreover, Taggart has a long history of instituting, in both state
and federal courts, myriad pro se actions against his various mortgage
lenders, including some of the Defendants herein.

3  After his initial Complaint, Taggart amended his Complaint three times in a
span of five months, each of which mooted separate Preliminary Objections
filed by Defendants. All of these Amended Complaints were largely identical.

                                           -2-
J-S06033-18



Amended Complaint pursuant to Pennsylvania Rule of Civil Procedure 233.1.4

Therein, Defendants argued that the trial court should dismiss Taggart’s

frivolous, pro se action because, inter alia, it raises essentially the same claims

against the same or related Defendants as Taggart did in several prior actions.

A few days thereafter, Taggart filed a pro se Motion for Enlargement of Time,

urging the trial court to (1) give him more time in which to respond to all

outstanding Motions and pleadings because he had just recently retained

counsel, who needed time to review the record; and (2) permit Taggart to file

a counseled amended complaint. Before the trial court ruled on the Motion

for Enlargement of Time, Taggart’s counsel filed a Fourth Amended Complaint



____________________________________________


4   Rule 233.1 provides, in relevant part, as follows:

      (a) Upon the commencement of any action filed by a pro se plaintiff
      in the court of common pleas, a defendant may file a motion to
      dismiss the action on the basis that

         (1) the pro se plaintiff is alleging the same or related claims
         which the pro se plaintiff raised in a prior action against the same
         or related defendants, and

         (2) these claims have already been resolved pursuant to a
         written settlement agreement or a court proceeding.

                                          ***

      (c) Upon granting the motion and dismissing the action, the court
      may bar the pro se plaintiff from pursuing additional pro se litigation
      against the same or related defendants raising the same or related
      claims without leave of court.

Pa.R.C.P. 233.1(a), (c).

                                           -3-
J-S06033-18



on June 28, 2016.       The trial court thereafter denied the Motion for

Enlargement of Time.

      Following a procedural history that is not relevant to this appeal, on

February 6, 2017, the trial court entered the Dismissal Order, granting

Defendants’ Motion to Dismiss Taggart’s Third Amended Complaint, with

prejudice. Additionally, the Dismissal Order precluded Taggart from pursuing

further litigation against Defendants related to the Property without leave of

the trial court. Importantly to this appeal, merely one day prior to the date

of the Dismissal Order, Taggart filed a Praecipe to voluntarily discontinue all

claims against all Defendants, without prejudice. Taggart filed a Motion for

Reconsideration of the Dismissal Order, which the trial court later denied.

      Taggart filed a timely Notice of Appeal from the Dismissal Order, in

response to which the trial court ordered him to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Taggart timely filed a

Concise Statement, presenting 17 separate allegations of error. The trial court

thereafter issued a Rule 1925(a) Opinion, consolidating Taggart’s numerous

claims into three main issues.

      Taggart now presents the following questions for our review:

      1.   Whether the trial court erred in finding that it had subject
           matter jurisdiction to enter an Order after the case had been
           voluntarily terminated by [Taggart?]

      2.   Whether the trial court erred in finding that the Motion
           pursuant to [] Rule 233.1 was properly before the court[?]




                                     -4-
J-S06033-18


     3.   Whether the trial court erred in entering an Order[,] which
          granted a Motion to Dismiss [Taggart’s] third Amended
          Complaint[,] after the case had been voluntarily discontinued
          as to all Defendants by [Taggart], and a fourth Amended
          Complaint had been filed by counsel[?]

     4.   Whether the trial court erred in finding that [] Rule 233.1 was
          applicable to the case when it entered the [Dismissal] Order
          on February [6], 2017[?]

     5.   Whether the trial court erred in finding that it had legal
          authority to [d]ismiss [Taggart’s c]laims with [p]rejudice and
          without a hearing[?]

     6.   Whether the trial court erred in finding that [] Rule 233.1 was
          applicable when [Taggart] was represented by counsel[?]

     7.   Whether the trial court erred in finding that it had legal
          authority to [d]ismiss [the] third Amended Complaint[,] filed
          by [Taggart] pro se[,] when it was rendered moot by a fourth
          Amended Complaint filed by counsel[?]

     8.   Whether the trial court erred in terminating the [d]ue
          [p]rocess [r]ights of [Taggart] without a hearing prior to
          entering an [O]rder barring claims with prejudice on February
          [6], 2017[?]

     9.   Whether the trial court erred in [v]acating the Order denying
          [the] Motion to Dismiss the third Amended Complaint[,] …
          which properly denied the Motion to Dismiss the third
          Amended Complaint[?]

     10. Whether the trial court erred in [d]enying [Taggart’s] Motion
         for Reconsideration [of] the [O]rder dated July 21, 2016 …
         [?]

     11. Whether the trial court erred in finding that failing to allow
         safe[]guards for [Taggart] to [a]ttend a [m]eeting[?]

     12. Whether the trial court erred in failing to find that the Motion
         pursuant to[] [Rule] 233.1 was not timely filed by
         [Defendants?]




                                    -5-
J-S06033-18


      13. Whether the trial court erred in failing to allow claim to be
          adjudicated on the merits and which have not been
          resolved[?]

      14. Whether the trial court erred in failing to allow claims to be
          adjudicated which are against [Taggart’s] property denying
          [Taggart] to adjudicate claims against his property[?]

      15. Whether the trial court erred in failing to allow claims to be
          adjudicated pursuant to the Pennsylvania and United States
          Constitution[s] pertaining to Due Process and Property
          [r]ights[?]

      16. [Whether the trial] court erred when it failed to adjudicate
          claims of [Taggart] pursuant to [the] minimum requirements
          set forth by the United States Constitution [and] Goldberg
          v. Kelly, 397 U.S. 254 (1970)[?]

      17. [Whether the trial] court erred when it failed to adjudicate
          claims of [Taggart] of Fraud and Fraud on the Court whereas,
          among a plethora of other defects, [Defendants] have
          produced two notes, one of which is fraudulent[?]

Brief for Appellant at 4-6.

      Preliminarily, we note that Taggart’s brief does not comply with our

Rules of Appellate Procedure. Namely, Taggart has failed to comply with Rule

2119, which requires that

      [t]he argument shall be divided into as many parts as there are
      questions to be argued; and shall have at the head of each part -
      in distinctive type or in type distinctively displayed - the particular
      point treated therein, followed by such discussion and citation to
      authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).    Here, Taggart’s Argument section headings in no way

correspond to the issues he sets forth in his Statement of Questions Presented.

Nevertheless, we will overlook this defect and briefly address the merits of




                                       -6-
J-S06033-18


Taggart’s claims to the best of our ability, under the circumstances created by

his noncompliant brief.

      Like the trial court’s Opinion, we will consolidate Taggart’s numerous,

repetitive issues into three main claims of trial court error, namely, that the

court erred in dismissing the Third Amended Complaint where

      1) Taggart had already filed a Fourth Amended Complaint, which
         thus mooted Defendants’ Motion to Dismiss the Third Amended
         Complaint;

      2) Taggart was represented by counsel at the time the court
         entered the Dismissal Order, and, thus, his claims could not be
         dismissed under Rule 233.1 because he was no longer pro se;

      3) the court lacked subject matter jurisdiction to dismiss the Third
         Amended      Complaint,    since    Taggart    had    voluntarily
         discontinued all claims against all Defendants, one day prior to
         the issuance of the Dismissal Order.

See generally Brief for Appellant at 4-6.

      We review a trial court’s grant of a motion to dismiss pursuant to Rule

233.1 under an abuse of discretion standard. See Coulter v. Ramsden, 94

A.3d 1080, 1086 (Pa. Super. 2014); see also Bolick v. Commonwealth, 69

A.3d 1267, 1270 (Pa. Super. 2013) (stating that “Rule 233.1 makes clear that

the power to bar frivolous litigation at the trial court level rests with the trial

court.”).   “[T]he court abuses its discretion if, in resolving the issue for

decision, it misapplies the law or exercises its discretion in a manner lacking

reason [or] if it does not follow legal procedure.” Coulter, 94 A.3d at 1086

(citation omitted). Moreover, to the extent that Taggart’s claims require us

to interpret Rule 233.1, “the interpretation and application of a Pennsylvania



                                       -7-
J-S06033-18



Rule of Civil Procedure presents a question of law. Accordingly, our standard

of review is de novo, and our scope of review is plenary.” Boatin v. Miller,

955 A.2d 424, 427 (Pa. Super. 2008) (internal citation and question marks

omitted).

      In his first issue, Taggart argues that the trial court improperly entered

the Dismissal Order, dismissing his Third Amended Complaint, where he had

filed a Fourth Amended Complaint, which thus mooted Defendants’ Motion to

Dismiss the Third Amended Complaint. See Brief for Appellant at 15, 21.

      The trial court concisely addressed this claim in its Opinion, set forth the

applicable law, and determined that the court did not lack authority to enter

the Dismissal Order, since the filing of an amended pleading does not render

a motion to dismiss moot under Rule 233.1. See Trial Court Opinion, 7/7/17,

at 3-4. We agree with the trial court’s sound rationale and determination, and

therefore affirm on this basis as to Taggart’s first issue. See id.

      Next, Taggart contends that the trial court erred in entering the

Dismissal Order, where he was represented by counsel at the time, and, thus,

his claims could not properly be dismissed under Rule 233.1 because he was

not acting pro se at that time. See Brief for Appellant at 15, 17, 22; see also

Pa.R.C.P. 233.1(c) (providing that “[u]pon granting the motion and dismissing

the action, the court may bar the pro se plaintiff from pursuing additional pro

se litigation against the same or related defendants raising the same or related

claims without leave of court.” (emphasis added)).




                                      -8-
J-S06033-18



       The trial court addressed and rejected this claim in its Opinion, and

determined that the court properly applied Rule 233.1 to Taggart under the

circumstances. See Trial Court Opinion, 7/7/17, at 4. As we agree with the

trial court’s legal determination, and discern no abuse of discretion, we affirm

on this basis concerning Taggart’s second issue. See id.

       In his third and final issue, Taggart argues that the trial court lacked

subject matter jurisdiction to dismiss the Third Amended Complaint, where he

had voluntarily discontinued all claims against all Defendants, pursuant to

Pa.R.C.P. 229,5 prior to the issuance of the Dismissal Order. See Brief for

Appellant at 10-14, 20-21 (citing, inter alia, Williams Studio Div. of

Photography by Tallas, Inc. v. Nationwide Mut. Fire Ins. Co., 550 A.2d

1333, 1335 (Pa. 1988) (stating that “when a plaintiff takes a voluntary

nonsuit, it is as if the original suit was never initiated.”)). Taggart argues that

the trial court lacked legal authority to act upon Defendants’ Motion to Dismiss

the Third Amended Complaint after Taggart had entered the discontinuance.

See Brief for Appellant at 11; see also id. at 12 (arguing that after Taggart

discontinued his claims, “there was no actual case, or case controversy.”).

       The trial court addressed Taggart’s claim in its Opinion, summarized the

applicable law, and determined that the court did not lack authority to rule on
____________________________________________


5 Rule 229 provides, in relevant part, as follows: “A discontinuance shall be
the exclusive method of voluntary termination of an action, in whole or in part,
by the plaintiff before commencement of the trial.” Pa.R.C.P. 229(a); but see
also Pa.R.C.P. 229(c) (stating that “[t]he court, upon petition and after notice,
may strike off a discontinuance in order to protect the rights of any party from
unreasonable inconvenience, vexation, harassment, expense, or prejudice.”).

                                           -9-
J-S06033-18



Defendants’ Motion to Dismiss, where Taggart filed the Praecipe to Discontinue

with unclean hands, for a procedural advantage.     See Trial Court Opinion,

7/7/17, at 4-7.    We agree with the trial court’s cogent reasoning and

determination, and therefore affirm on this basis in rejecting Taggart’s final

issue. See id.

      Accordingly, as we discern no error of law or abuse of the trial court’s

discretion in granting Defendants’ Motion to Dismiss the Third Amended

Complaint, see Coulter, supra, and none of Taggart’s claims entitle him to

relief, we affirm the Dismissal Order.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/18




                                    - 10 -
                                                                                                           Circulated 03/12/2018 02:13 PM




•       IN THE COURT OF COMMON PLEAS, MONTGOMERY COUNTY, PENNSYLVANIA
                                                    CIVIL DIVISION

    KENNETH J. TAGGART

                vs.
    EVERBANK, OCWEN LOAN SERVICING,
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                                                                                                     Opini""
    LLC, GMAC MORTGAGE, LLC., et al                                           RcpF7J\7443� f«:S0.011
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                                                                                         '.\liuk     MOfJICo �



    CARLUCCIO, J.                                                           JULY          1               , 2017

                                                        OPINION

    FACTS AND PROCEDURAL HISTORY:

              On February 2, 2017, after review of briefs, the trial court granted the
•
    above captioned Defendants' Motion to Dismiss Plaintiff's Third Amended

    Complaint. The Third Amended Complaint was captioned "Action to Quiet Title -

    Dedaratory Relief and Related Relief.11 In its' ruling, the trial court further ordered
    that Plaintiff, Kenneth J. Taggart was barred from pursuing additional litigation

    against the Defendants related to the underlying property without leave of Court.
    (Please See Trial Court Order dated February 2, 2017, docketed February 6, 2017}

               On March 7, 2017, the Plaintiff timely appealed the February 2, 2017,

    dismissal order, docketed on February 6, 2017.
                                                   1



               The trial court supports its' ruling below.




    1
        On March U, 2017, the trial court denied Plaintiffs Motion for Reconsideration of the February 2, 2016, ruling,
    as It was moot.
••   DISCUSSION:
            In 2015, the Plaintiff/Appellant, Kenneth J. Taggart, filed the present Action

     to Quiet Title and for Declaratory Relief against the above captioned

     Oefendant/Appellees contesting the validity of the 2008 mortgage and 2008 note,

     affecting his property in Montgomery County.
             In 2017, after a tortured procedural history, Pia i ntiff filed a Third Amended

     Complaint which the trial court ultimately dismissed pursuant to Pennsylvania
     Rule of Civil Procedure 233.1 {Please See Trial Court Order dated February 2, 2017
                                           2
     and filed February 61 2017).

             Rule 233.1 entitled, Frivolous Litigation. Pro Se Plaintiff, Motion to Dismiss

     provides1




•
             (a} Upon the commencement of any action filed by a pro se plaintiff in the
             court of common pleas, a defendant may file a motion to dismiss the action
             on the basis that,

                      (1) the prose plaintiff is alleging the same or related claims which the
                      pro se plaintiff raised in a prior action against the same or related
                      defendants, and
                      (2) these claims have already been resolved pursuant to a written
                      settlement agreement or court proceeding.
                            '


             {b) The court may stay the action while the motion is pending.

             (c) Upon granting the motion and dismissing the action, the court may bar a
             pro se plaintiff from pursuing additional prose litigation against the same
             or related defendants raising the same or related claims without leave of
             court.



     2
      Please note, the factual/merit basis/rationale for the court's dismissal under Rule 233.1 is cited in Defendant
     Everbantc's Motion to Dismiss Third Amended Complaint flied on May 20, 1016, paragraphs 52-62. However, the
     Plalgtlff on appeal does not appear to contest the February 2, 2017, ru6ng on the merits.. Rather, he alleges
     procedural error.
                                                             2
•         (d) The court may sua sponte dismiss an action that is filed in violation of a
          court order entered in subdivision (c). [ •.• ]

    (Pennsylvania Rule of Civil Procedure 233.1)

          On appeal, Plaintiff argues that it was error for the trial court to dismiss his

    Third Amended Complaint where he had already filed a Fourth Amended

    Complaint, thereby making the Third Amended Complaint moot. This allegation

    of error is baseless.
            In _Buonopa ne v. Gray, 53 A.3d 829, 838-39 (Pa.Super. 2012), our Superior

    Court stated that the filing of an amended pleading does not render a motion to
    dismiss moot under Rule 233.1. Thus, the trial court maintained the authority to

    dispose of the outstanding Motion to Dismiss Third Amended Complaint despite

    the subsequent filing. Further, in his order dated July 25, 2016, the Honorable

•   Thomas M. Del Ricci denied Plaintiff's request for an extension of time to file an

    amended complaint as requested by Plaintiff in his Motion for Enlargement of

    Time, Paragraph #7. (Please See, Docket Entry, #37 Motion for Enlargement of

    Time, Para 7 and Judge De/Ricers Order of July 251 2016) Thus, the fifing of the

    Fourth Amended Complaint was in contravention of Judge OelRicci's order.

    Lastly1 arguendo, it is questionable that the Plaintiff perfected service of the
    Fourth Amended Complaint upon the Defendants. Plaintiff filed the Fourth
    Amended Complaint on June 28, 2016, but did not file a Certificate of Service until

    November 16, 2016, suggesting service to all Defendants on June 28, 2016.

    However the November 16, 2016 Certificate did not provide proof of service on all

    Defendants on June 28, 2016. Instead, in the following docket entries, Plaintiff

    provided individual Certificates of Servlce for the Defendants indicating service of



•   a Complaint in 2015, however, it was not the Fourth Amended Complaint. (Please

                                               3
•   See, Montgomery County Docket Entry 65, Affidavit/Certificate of Service for
    Fourth Amended Complaint and following Certificates of Service ) Thus, the docket
    does not support proper service of the Fourth Amended Complaint.

            Plaintiff also claims that the court erred when it dismissed his Third

    Amended Complaint under Rule 233.1, supra, because the rule applies to

    frivolous litigatioQ by pro se litigants, and he was counseled when the court

    issued the order. While It is true that Plaintiffs counsel entered his appearance

    before the February 2, 2017, ruling, it is also true that Plaintiff acted prose in all

    of the frivolous litigation 'at issue in the Motion.3 Plaintiff acted pro se when he

    filed all of the Amended pleadings (1-3) up until July 25, 2016, when present

    counsel, Joshua Thomas, entered his appearance. Plaintiff hired counsel at the

    eleventh hour in response to Defendants' Motion to Dismiss pursuant to Rule
•   233.1. Thus, based on the history of the case/docket, the court correctly applied
    Rule 233.1 to the Plaintiff. Were it otherwise, Rule 233.1 would have no teeth. A

    pro se Plaintiff could proceed endlessly with frivolous litigation to the prejudice of

    the opposing parties, but avoid the consequences of Rule 233.1 by simply hiring

    counsel at the last minute in order to void a Rule 233.1 claim.

             Finally, Plaintiff argues that the court lacked subject matter jurisdiction to

    dismiss his Third Amended Complaint because he had already voluntarily

    dismissed the action against all Defendants on February 1, 2017-the day

    before the court's February 2, 2017, ruling. As the appellate court might have

    guessed, the voluntary dismissal was without preiudice.

    'The court notes that in Plaintiffs Motion for Enlargement of Time flied June 6, 2016, Plaintiffs eounset indicated
    that he had Just been retained and that he had "just entered their appearang contemporaneously with thiS
    "motion for Extension ofTime." In addition, counsel flied the Fourth Amended Complaint June ,28, 2016, on his




•
    letterhead. However, the docket shows that counsel did not actually enter his appearance until July 25, 2016,
    approximately a month later, and right before Judge DelRlcci held argument on the Motion for Enlargement of
    Time. (Please See, Docket Ent,y, 1137 Motion for Entorgement of nme, Para 7 and Docket Entry #58 for Joshua
    Thomas' Entry of Appearance.)
                                                             4
•         Plaintiffs filed the Praecipe to Discontinue with unclean hands. That is,

    Plaintiff used Pennsylvania Rule of Civil Procedure 229 as a sword. Pennsylvania

    Rule 229 - Discontinuance states,

          (a) A discontinuance shall be the exclusive method of voluntary termination
          of an action in whole or in part, by the plaintiff before commencement of

          the trial.
          (b)(l) Except as otherwise provided in subdivision (b)(2), a discontinuance
          may not be entered as to less than all defendants except upon the written

          consent of all parties or leave of court upon motion of any plaintiff or any

          defendant for whom plaintiff has stipulated in writing to the

          discontinuance.




•
    (Pennsylvania Rule of Civil Procedure 229)

          Based upon the above rule, a Plaintiff may discontinue an action any time

    prior to tria I via praec ipe. Further, Pia intiff does not need court permission to do

    so when the discontinuance is to all defendants. However, Rule 229(c) also

    provides, that "[t]he court, upon petition and after notice, may strike off a

    discontinuance in order to protect the rights of any party from unreasonable

    inconvenience, vexation, harassment, expense or prejudice." Thus, the rule

    provides a remedy where a plaintiff flies a discontinuance to a defendant's

    prejudice.

          As evidenced by the docket, Plaintiff's Praecipe to Discontinue was filed to
    further vexate, harass and inconvenience the Defendants. Plaintiff's Praecipe to

    Discontinue specifically reads, "[p]lease discontinue all claims without prejudice

    against all Defendants.a (emphasis added) Thus, Plaintiff clearly intends to re-flle



•
    the present action against the present Defendants. Further, Plaintiff filed the


                                               s
•   Praecipe to Discontinue knowing that there was an outstanding Motion to
    Dismiss, pursuant to Pennsylvania Rufe of Civil Procedure 233.1, upon which the
    court was in the process of ruling. Yet, Plaintiff did not inform the court of the

    impending dismissal. Rather, the Plaintiff raced to file his Praeclpe to Discontinue
    in order to preclude a Rule 233.1 ruling.
          The Plaintiff at bar has become an expert at manipulating court rules and

    misusing the court system to his advantage. Throughout the litigation, whenever

    preliminary objections were filed to his Complaint, Plaintiff simply filed an
    Amended Complaint, almost identical to the previous one, in an attempt to moot

    the Preliminary Objections. Plaintiff adopted the same tactic with his Praecipe to
    Discontinue. Defendants filed a Motion to Dismiss Plaintiff's Third Amended

    Complaint pursuant to Rule 233.1 and Plaintiff responded with a Praecipe to
•   Discontinue the action in order to moot a Rule 233.1 ruling. The docket supports

    this strategic judicial manipulation.

           Further, the overlapping rulings at bar precluded the Defendants from filing
    a Petition to Strike Off Plaintiffs Discontinuance under Rule 229(c), supra.,-··- a

     remedy which would have likely been granted. As our courts have held,

    "[w)henever it therefore appears a party discontinues one suit, for the purpose
     merely of instituting another for the same cause of action elsewhere, the court,
     on motion, will set aside the discontinuance, and reinstate the former suit, and

    subject the party to the consequences of his own actions." Brown v. Phillips Gas &
     Oil, 74 A.2d 105, 159 (Po. 1950), quoting, Mechanics Bank v. Fisher, 1 Rawle 341,
    347; Please See, Brown, where the discontinuance granted by the court was
     reversed because the discontinuance was purely for a procedural advantage. The




•
     Brown case is factually similar to the case at bar involving multiple amended


                                                6
•    pleadings and an outstanding motion} Thus, even if the appellate court were

      inclined to vacate the tria I court's February 2, 2017, d ismissa I, the equities
      mandate that the matter be remanded to allow the Defendants to file a Petition

      to Strike Off Plaintiff's Discontinuance under Rule.229(c).

             Finally, based on the equities and Brown. any remand would likely result in

      reinstatement of the action at bar and the eventual dismissal of Pfaintiff s Third

      Amended Complaint. This of course would place the parties in exactly the same

      posture as of the court's February 2, 2017, appealed ruling --except for the
                                                                                             .,
      passage of a significant amount of time-·which presumably has been Plaintiffs

      strategy all along.

             Accordingly, for the foregoing reasons, the trial court respectfully requests




•
      that the February 2, 2017. order be AFFIRMED •


                                               By the Court:




      Copies of the above Opinion ·
      mailed on   7.7 .. 17   to:
      Joshua L. Thomas, Esquire
      Laura E. Vendzules, Esquire
      Matthew M. Maher., Esquire
      Ally Bank, 6985 Union Park Or., Midvale, UT 84047
      GMAC Bank, 6985 Union Park Ctr., Midvale, UT 84047
      Thomas P. Stevens, Esquire
      MERS, 1818 Library St., Reston, VA 20190
      Dawn Didnato�Burke, Esquire




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