J-S47042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRIBECA LENDING CORP.                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

MARY ANN PEARSON AND
DAMIEN BOLAND

                        Appellants                  No. 1596 MDA 2015


              Appeal from the Order Entered August 11, 2015
           In the Court of Common Pleas of Lackawanna County
                   Civil Division at No(s): 2009 CV 2570


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 30, 2016

     Mary Ann Pearson and Damien Boland (collectively, Appellants) appeal

from the order of the Court of Common Pleas of Lackawanna County

entering final judgment in favor of Appellee, Tribeca Lending Corporation

(Tribeca), in this ejectment action. We quash.

     Appellants own property located in Springbrook Township, Lackawanna

County (“home lot/Lot 10”); Tribeca holds a $100,000 mortgage on the

property. The loan is evidenced by a note dated August 30, 2005.          On

November 2, 2007, Pearson conveyed, by deed, her interest in the home lot

to Boland. Pearson also holds title to two additional parcels, a “vacant lot”
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(Lots 18 and 19) and an “additional vacant lot.” 1         On August 30, 2005,

Pearson conveyed title to the vacant lot to Boland by quitclaim deed. At the

time that the Tribeca mortgage was executed in 2005, an outdated

description for the vacant lot was referenced.

       On April 20, 2009, Tribeca filed the instant action in ejectment against

Appellants for all three parcels after Appellants defaulted on their mortgage

and Tribeca foreclosed2 and successfully bid on the home lot and vacant lot

at a January 2009 sheriff sale.3           On January 4, 2010, Tribeca filed a

motion for summary judgment.             Pearson filed a response to the motion,

alleging, in part, that Tribeca did not acquire title to the home lot, but only

to the vacant lot.      Pearson further contended that she and Boland had a

“right to continued occupancy of the residential dwelling . . . which was

conveyed free and clear of the mortgage upon which [Tribeca] foreclosed.”

The court denied the summary judgment motion, finding that a controversy

existed with regard to the extent of the real property subject to the
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1
  The description set forth in a 1982 deed of correction shifts the vacant lot
to the southeast by several feet. The discrepancy in the description of the
vacant lot is referred to as the additional vacant lot which is contiguous with
the vacant lot and the home lot.
2
  The mortgage foreclosure action is a separate action, docketed at No.
2007-03396 in the Court of Common Pleas of Lackawanna County. It is not
a part of the instant appeal.
3
 The sheriff’s deed also conveyed the additional vacant lot to Tribeca since it
held and had foreclosed on an equitable mortgage lien on the additional
vacant lot.



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mortgage lien and whether Tribeca acquired title to both the home lot and

the vacant lot as a result of the mortgage foreclosure proceedings and

acquisition of the sheriff’s deed.

      After the court granted leave, Tribeca filed an amended complaint in

August 2013. On October 7, 2013, Appellants filed preliminary objections to

Tribeca’s amended complaint which the trial court sustained. Tribeca then

filed a second amended complaint, on June 2, 2014, to which Appellants

again filed preliminary objections.      The court denied the preliminary

objections on September 23, 2014, and ordered Appellants to file an answer

to the second amended complaint.        Appellants were also ordered to pay

$2,000 in reasonable counsel fees, see 42 Pa.C.S.A. § 2503, for dilatory and

vexatious conduct, as a result of the disposition of its preliminary objections

filed in connection with the second amended complaint.

      When Appellants filed their answer to Tribeca’s second amended

complaint after the court-ordered deadline, Tribeca filed a contempt petition

against Appellants in January 2015.        Following a March 2015 contempt

hearing, which neither Appellant attended, the court found Appellants in

contempt and ordered them to make full payment of $2,750 in counsel fees

within five days.   When Appellants failed to pay the ordered counsel fees,

Tribeca filed a motion to strike Appellants’ answer, new matter and

counterclaim.   After a hearing, held on April 23, 2015, the court granted

Tribeca’s motion.    As a result of Appellants’ answer being stricken, the

Appellants were considered in default for failure to file a responsive pleading.

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       On August 11, 2015, Tribeca moved to have judgment entered in its

favor with respect to Counts I (ejectment action – based on mortgage and

sheriff’s deed for home lot and vacant lot) and III (ejectment action –

equitable mortgage lien on additional vacant lot) of its second amended

complaint which the court granted.4 On the same date, the court entered a

final judgment in favor of Tribeca against each defendant in the aggregate

amount of $15,000, plus costs. See Pa.R.C.P. 1051, 1057, and 1037.              This

appeal follows.

       On appeal, Appellants raise the following issues for our consideration:

       (1)    Did the trial court err as a matter of law by overruling
              Boland/Pearson’s (Appellants[’]) preliminary objections?

       (2)    Did Tribeca’s (Appellee)           second   amended   complaint
              contain errors of law?

       (3)    Did the trial court err as a matter of law by ruling
              Boland/Pearson’s preliminary objections to be “vexatious,”
              and awarding attorney fees to Tribeca?

       (4)    Did the trial court err as a matter of law by finding
              Boland/Pearson in contempt of court and striking
              Appellants’ Answer, New Matter and Counter Claim?

____________________________________________


4
  Count II of the second amended complaint set forth an action in ejectment
(equitable mortgage lien on the home lot) based upon mistake, unjust
enrichment, and estoppel principles. Count II is an alternative form of relief
to that alleged in Count I if “the Mortgage, and as a result, the Sheriff’s
Deed, do not adequately describe the Home Lot.”           Second Amended
Complaint, 6/2/14, at 18 ¶ 89. While the general rule is that an order
dismissing fewer than all counts of a multi-count complaint is interlocutory,
Praisner v. Stocker, 459 A.2d 1255 (Pa. Super. 1983), because the court
granted relief on Count I, Count II became moot. Thus, we find the instant
order final. Pa.R.A.P. 341.



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       (5)    Did the trial court err as a matter of law by awarding a
              final judgment to Tribeca that enhanced the legal
              description of a property purchased at a Sheriff’s Sale?

       (6)    In an Ejectment Action, is Tribeca able to seek both
              “Possession of” and “Title to” two additional properties that
              were not included in a Sheriff’s sale?

       (7)    Can Tribeca seek damages for rents and profits from a
              time it did not have title to any property?

       Before we may address Appellants’ substantive claims, we must first

discuss a procedural issue presented by the instant appeal.                      When

Appellants failed to timely file their answer to Tribeca’s second amended

complaint, the court, upon praecipe by Tribeca, entered a Rule 1037 default

judgment. See Pa.R.C.P. 1026(a)5 (every pleading subsequent to complaint

shall be filed within 20 days after service of preceding pleading, but no

pleading need be filed unless preceding pleading contains notice to defend);

Pa.R.C.P. 1037.6 Appellants filed their notice of appeal from the trial court’s

August 11, 2015 order granting final judgment in favor of Tribeca pursuant

to Rule 1037.

       When     a   default    judgment        is   entered,   the   judgment   is   not

instantaneously final, and the party against whom the judgment was entered

cannot immediately appeal to this Court.                   Estate of Considine v.

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5
  We note that “[e]xcept as otherwise provided . . . , the procedure in the
action of ejectment shall be in accordance with rules relating to a civil
action.” Pa.R.C.P. 1051.
6
  Tribeca’s second amended complaint contains a notice to defend.                    See
Pa.R.C.P. 1018.1 (notice to defend; form).



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Wachovia Bank, 966 A.2d 1148, 1152 (Pa. Super. 2009).              Rather, the

proper procedure for a party that wishes to contest a default judgment is to

file with the trial court either a petition to strike or a petition to open the

default judgment.    Id.; see also Pa.R.C.P. 237.3.      Instantly, Appellants

failed to file either a petition to open or strike the judgment entered against

them. As a result, they did not follow the proper procedure to contest the

judgment in the trial court prior to filing an appeal to this Court.      See

Estate of Considine, supra at 1152 (“Only after a default judgment

becomes final do ‘all the general rules in regard to conclusiveness of

judgments apply.’”). Accordingly, we must quash the appeal.

      Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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