J-S18039-15


                                2015 PA Super 130

LESLIE-EVE ORMAN                                    IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellant

                      v.

MORTGAGE I.T., MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., CITIMORTGAGE, INC.

                           Appellee                      No. 2178 EDA 2014


                  Appeal from the Order Entered June 12, 2014
                In the Court of Common Pleas of Chester County
                       Civil Division at No(s): 2012-04352


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

OPINION BY MUNDY, J.:                                     FILED JUNE 02, 2015

        Appellant, Leslie-Eve Orman, appeals pro se from the June 12, 2014

order granting the motion for summary judgment and entering judgment in

favor    of   Appellees,   Mortgage    I.T.   (MortgageIt),   Mortgage   Electronic

Registration Systems (MERS), and Citimortgage, Inc. (Citi).          After careful

review, we vacate and remand with instructions.

        The trial court summarized the relevant factual and procedural

background of this case as follows.

                     This case involves a dispute over a residential
              mortgage. In [sic] actually began in January of
              2011, when [Appellant] along with Thomas Orman
              filed inter alia, an Action to Quiet Title and reform
              the mortgage in the United States District Court for
              the Eastern District of Pennsylvania against …
              MortgageIt … and others. The substance of the
J-S18039-15


          Federal suit was that [Appellant] wanted to have the
          mortgage removed as a lien on the title.        The
          Defendants therein filed a Motion to Dismiss
          [Appellant]’s Complaint pursuant to Federal Rule of
          Civil Procedure 12(b)(6).

                The documents at issue in Federal Court were
          a loan and mortgage against [Appellant]’s home at
          888 Woodlawn Ave., Phoenixville, PA 19460.
          MortgageIt was the original lender on the note (loan)
          and mortgage. MortgageIt subsequently transferred
          its interest in the note and mortgage to
          CitiMortgage. [Appellant] acknowledged the transfer
          when, in filing one of her Amended Complaints, she
          dropped MortgageIt as a defendant.

                [Appellant] then began filing a series of
          Amended Complaints, Requests for Information,
          Qualified Written Requests all of which were
          responded to by [Citi]. On March 30, 2012, in a
          detailed Opinion, which reviewed all of the
          documents and allegations, [the District Court]
          granted Defendants[’] Motion to dismiss. [Appellant
          did not file a notice of appeal with the Court of
          Appeals.]

                                   …

                On April 30, 2012, [Appellant] commenced the
          instant matter in the [trial court]. In her Original
          Complaint [Appellant] named MortgageIt as the only
          defendant. [Appellant] raised here all of the same
          substantive issues. Specifically, [Appellant] sought
          to reform the mortgage and note and to Quiet Title.
          MortgageIt filed an answer and [Citi] filed an Answer
          and New Matter as the successor to MortgageIt.

                [Appellant obtained a default judgment on
          June 18, 2012. On August 9, 2012, MortgageIt filed
          a petition to open said default judgment. The trial




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              court entered an order granting MortgageIt’s petition
              to open on October 2, 2012.1]

                    [Appellant] then began filing [a] Request for
              Admissions, [a] Request for Documents, Motions to
              Strike Answers, [a] Motion for Summary Judgment,
              [a] Cross Motion for Summary Judgment, [a] Motion
              to Amend First Amended Complaint, [a] Second
              Motion to Amend Complaint, [a] Motion for
              Interlocutory Summary Judgment, a Third Amended
              Complaint and various “Statements of Indisputable
              Facts”.   As to the various Amended Complaints,
              [Appellant] never sought leave of [the trial c]ourt
              nor the assent and acquiescence of any defendant.
              As a result the [trial c]ourt was unaware of the
              pendency of these filings. [Citi] filed answers to
              each of the above. [Citi] also filed a Motion for
              Summary Judgment.

Trial Court Opinion, 6/12/14, at 1-2.

       On June 12, 2014, the trial court entered an order granting Citi’s

motion for summary judgment and entering judgment in favor of Appellees.

The trial court concluded that Appellant failed to join an indispensable party,

her husband Thomas Orman.             Id. at 4.   The trial court further concluded

that Appellant’s entire lawsuit is barred by the doctrine of res judicata. Id.

On June 20, 2014, Appellant filed a motion for reconsideration, which the




____________________________________________
1
  We note that an order granting a petition to open or strike a judgment is
not immediately appealable under Pennsylvania Rule of Appellate Procedure
311(a)(1), only an order denying such a petition will give rise to an
interlocutory appeal of right.         See generally Pa.R.A.P. 311(a)(1).
Therefore, the instant appeal was Appellant’s first opportunity to challenge
the trial court’s decision to open the default judgment.



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trial court denied on June 26, 2014.             On July 11, 2014, Appellant filed a

timely notice of appeal.2

       On appeal, Appellant raises the following ten issues for our review.

              1)     Was     opening           the   default    judgment
                     appropriate?

              2)     Is Mr. Orman a necessary party to this case?

              3)     Was Summary Judgment proper?

              4)     Should amendment of the complaint been
                     permitted?

              5)     Does using MERS in a              Mortgage    violate
                     statutes of Pennsylvania?

              6)     Have successors defaulted on the mortgage?

              7)     Is the subject Mortgage recordable?

              8)     Do    forged      documents       remain     publicly
                     recorded?

              9)     Is a Mortgage without recorded beneficiary
                     abandoned?

              10)    Is THIS mortgage a nullity in the public
                     records?

Appellant’s Brief at 12-13.

       We begin by addressing Appellant’s second issue, as it is dispositive of

this appeal. In her second issue, Appellant avers the trial court erred when



____________________________________________
2
  Appellant and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925.



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it held that her husband, Thomas Orman, was an indispensable party to the

underlying action. Id. at 27.

      Under Pennsylvania law, the failure to join an indispensable party

implicates the   trial court’s subject     matter   jurisdiction.   Sabella v.

Appalachian Dev. Corp., 103 A.3d 83, 90 (Pa. Super. 2014). “Failure to

join an indispensable party goes absolutely to the court’s jurisdiction and the

issue should be raised sua sponte.”        Barren v. Dubas, 441 A.2d 1315,

1316 (Pa. Super. 1982) (internal quotation marks and citations omitted).

This requirement is reflected in our Rules of Civil Procedure.

            Rule 1032. Waiver of Defenses. Exceptions.
            Suggestion    of  Lack   of   Subject  Matter
            Jurisdiction or Failure to Join Indispensable
            Party

                  (a) A party waives all defenses and objections
            which are not presented either by preliminary
            objection, answer or reply, except a defense which is
            not required to be pleaded under Rule 1030(b), the
            defense of failure to state a claim upon which relief
            can be granted, the defense of failure to join an
            indispensable party, the objection of failure to state
            a legal defense to a claim, the defenses of failure to
            exercise or exhaust a statutory remedy and an
            adequate remedy at law and any other nonwaivable
            defense or objection.

                                       …

                  (b) Whenever it appears by suggestion of the
            parties or otherwise that the court lacks jurisdiction
            of the subject matter or that there has been a failure
            to join an indispensable party, the court shall order
            that the action be transferred to a court of the
            Commonwealth which has jurisdiction or that the



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               indispensable party be joined, but if that is not
               possible, then it shall dismiss the action.

Pa.R.C.P. 1032; see also id. at 2227(a) (stating, “[p]ersons having only a

joint interest in the subject matter of an action must be joined on the same

side as plaintiffs or defendants[]”).       Whether a court has subject matter

jurisdiction presents a question of law, making our standard of review de

novo and the scope of our review plenary.           Mazur v. Trinity Area Sch.

Dist., 961 A.2d 96, 101 (Pa. 2008).

      “[A] party is indispensable ‘when his or her rights are so connected

with the claims of the litigants that no decree can be made without impairing

those rights.’” City of Phila. v. Commonwealth, 838 A.2d 566, 581 (Pa.

2003), quoting Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988). “If no

redress is sought against a party, and its rights would not be prejudiced by

any decision in the case, it is not indispensable with respect to the

litigation.”   Grimme Combustion, Inc. v. Mergantime Corp., 595 A.2d

77, 81 (Pa. Super. 1991), citing Sprague, supra.             We have consistently

held that a trial court must weigh the following considerations in determining

if a party is indispensable to a particular litigation.

               1. Do absent parties have a right or an interest
               related to the claim?

               2. If so, what is the nature of that right or interest?

               3. Is that right or interest essential to the merits of
               the issue?



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            4. Can justice be afforded without violating the due
            process rights of absent parties?

Martin v. Rite Aid of Pa., Inc., 80 A.3d 813, 814 (Pa. Super. 2013);

accord Mechanicsburg Area Sch. Dist. v. Kline, 431 A.2d 953, 956 (Pa.

1981). “In determining whether a party is indispensable, the basic inquiry

remains ‘whether justice can be done in the absence of a third party.’” Pa.

State Educ. Ass’n v. Commonwealth, 50 A.3d 1263, 1277 (Pa. 2012),

quoting CRY, Inc. v. Mill Serv., Inc., 640 A.2d 372, 375 (Pa. 1994).

      This Court has held that in a quiet title action, all parties who claimed

title to the property at issue must be joined as indispensable parties.

Hartzfeld v. Green Glen Corp., 552 A.2d 306, 310 (Pa. Super. 1989).

More specifically, this Court has held that “in actions intended to affect the

title to property which is either held or claimed by tenants by the entireties,

both spouses are indispensable parties and must be joined.”          Miller v.

Benjamin Coal Co., 625 A.2d 66, 68 (Pa. Super. 1993), appeal denied, 641

A.2d 311 (Pa. 1994). We further elaborated on this principle as follows.

            A party was said to be indispensable, in Hartley v.
            Langkamp & Elder, 90 A. 402 (Pa. 1914), “when
            he has such an interest that a final decree cannot be
            made without affecting it, or leaving the controversy
            in such a condition that the final determination may
            be wholly inconsistent with equity and good
            conscience…. Thus where the object of a bill is to
            divest a title to property, the presence of those
            holding or claiming such title is indispensable.” Id.
            at 403-404.




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Miller v. Benjamin Coal Co., 625 A.2d 66, 67-68 (Pa. Super. 1993),

appeal denied, 641 A.2d 311 (Pa. 1994) (parallel citations omitted).

        Applying these principles to the case sub judice, it is undisputed that

Thomas Orman signed the mortgage in question for the subject property.

Appellant’s Complaint, 4/27/12, at Exhibit A at 3, Exhibit B at 15. As he is

listed on the disputed mortgage, the trial court correctly concluded that he is

an indispensable party to the action.     Trial Court Opinion, 6/12/14, at 4.

Despite determining that Thomas Orman was an indispensable party, the

trial court’s June 12, 2014 order nevertheless granted judgment in favor of

all defendants, which, similar to the default judgment entered on June 18,

2012 in Appellant’s favor, is an adjudication on the merits.       Trial Court

Order, 6/12/14, at 1. This was in error. See Gaynor v. Gyuris, 707 A.2d

534, 535 n.1. (Pa. Super. 1998) (noting the trial court correctly conceded

that after concluding an indispensable party was not joined, “rather than

entering judgment, it should have, pursuant to Pa.R.C.P. 1032(b), dismissed

Appellant’s action[]”), appeal denied, 727 A.2d 131 (Pa. 1998).

        Thomas Orman is, and always has been, an indispensable party in this

case.    Therefore, the trial court lacked subject matter jurisdiction to enter

judgment in favor or against any party when it entered its June 12, 2014

order granting summary judgment. By logical extension, the trial court was

also without subject matter jurisdiction to grant Appellant’s default judgment

and then open the same.         The proper remedy was always to dismiss


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J-S18039-15


Appellant’s August 7, 2013 complaint without prejudice, rather than enter

any form of judgment. See Gaynor, supra; Hartzfeld, supra.

       Based on the foregoing, we conclude the trial court correctly

determined that Thomas Orman is an indispensable party to the instant

action. However, we also conclude that the trial court lacked jurisdiction to

enter judgment in favor of any party.3 Accordingly, the trial court’s June 18,

2012 judgment and its October 2, 2012 and June 12, 2014 orders are

vacated, and the case is remanded with instructions for the trial court to

enter an order dismissing Appellant’s complaint without prejudice, consistent

with this opinion.

       Judgment and orders vacated.              Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




____________________________________________
3
  In light of this conclusion, we express no opinion on the res judicata
analysis conducted by the trial court. Furthermore, we need not address
Appellant’s remaining issues on appeal.



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