J-A17018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON F/K/A                 IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK, AS TRUSTEE                        PENNSYLVANIA
FOR THE CERTIFICATE HOLDERS OF
CWALT 2005-01CB

                            Appellant

                       v.

COMMONWEALTH LAND TITLE
INSURANCE AND FIDELITY NATIONAL
TITLE GROUP

                            Appellee                  No. 2708 EDA 2015


                    Appeal from the Order Entered July 28, 2015
                In the Court of Common Pleas of Philadelphia County
                  Civil Division at No(s): June Term, 2014, No. 709


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 18, 2016

        The Bank of New York Mellon f/k/a the Bank of New York, as Trustee

for the Certificate Holders of CWALT 2005-01CB (“BNY Mellon”), appeals

from the order entered in the Court of Common Pleas of Philadelphia County,

which granted judgment on the pleadings in favor of Commonwealth Land

Title Insurance (“Commonwealth Land”) and Fidelity National Title Group

(“Fidelity”).

        BNY Mellon initiated the instant action by writ on June 5, 2014.

Following a period of pre-complaint discovery, BNY Mellon filed a complaint
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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on June 5, 2015, asserting its entitlement to coverage under a title

insurance policy as the result of an assignment from nonparty Gateway

Funding Diversified Mortgage Services, LP (“Gateway”).

       Gateway loaned nonparties William and Arlene Segar (the “Segars”)

funds to enable the Segars to purchase real property located at 219

McCombs Road, Venetia, Pennsylvania (the “Property”) in 2004.                       In

connection with the loan to the Segars, Gateway obtained a commitment to

issue a policy of title insurance from nonparty Commonwealth Abstract and

Closing    Services    (“Commonwealth          Abstract”),1   provided   that   certain

conditions precedent were met (the “Commitment”).

       One of the conditions precedent required to be satisfied before a title

insurance policy would be issued was the discharge of a prior mortgage on

the Property, referred to in the complaint as the “Wolper Mortgage.”              See

Complaint, at ¶5.        The Wolper Mortgage was not satisfied in 2004 and

allegedly continues to encumber the Property. Id.

       BNY Mellon asserted in its complaint that the settlement agent,

nonparty James Marchewka, Esquire, defrauded the Segars and other parties

to the transaction by failing to advance the funds necessary to discharge the


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1
  We note that Commonwealth Abstract is a business entity that shares a
name similar to, but is distinct from, Appellee Commonwealth Land. For
purposes of the Commitment, Commonwealth Abstract was acting as
Commonwealth Land’s issuing agent. Throughout its Brief, BNY Mellon
conflates the two entities.



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Wolper Mortgage, and, as a result, Commonwealth Land did not issue a title

insurance policy despite the Commitment provided by Commonwealth

Abstract.    On this basis, BNY Mellon included claims in its complaint for

breach of contract and bad faith for the failure to issue a title insurance

policy.   BNY Mellon also pled negligence and vicarious liability/respondeat

superior claims, in the alternative, based upon Marchewka’s actions as

settlement agent.

       On June 26, 2015 and June 29, 2015, Appellees Commonwealth Land

and Fidelity, respectively, filed motions for judgment on the pleadings. The

trial court granted the motions in favor of both Appellees on July 28, 2015,

finding that the breach of contract and bad faith claims failed because no

policy of title insurance was ever issued.       Additionally, the negligence and

respondeat superior claims were found to be barred by the statute of

limitations. Thereafter, the court denied a motion for reconsideration, and

this timely appeal followed.2

       On appeal, BNY Mellon raises the following issues for our review:



____________________________________________


2
  Appellees filed a motion to quash BNY Mellon’s appeal on the ground that
BNY Mellon’s brief fails to include corresponding answers to each question
raised, as required by Pa.R.A.P. 2116. Additionally, Appellees assert that
the second question raised on appeal deals with discovery issues not
addressed by an order of the trial court. However, as we are able to identify
the issues raised by BNY Mellon, and the second question apparently
attempts to raise issues of material fact, we deny the motion to quash and
address the issues on the merits in this memorandum.



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      1. Whether the trial court erred in granting [Appellees’]
         unverified Motion for Judgment on the Pleadings, by assuming
         facts not in evidence and dismissing breach of contract counts
         as barred by the statute of limitations and preventing [BNY
         Mellon] from conducting any discovery on relevant issues of
         fact including [Appellees’] failure to produce the closing file
         from 2004.

      2. Whether the trial court erred, in dismissing [BNY Mellon’s
         complaint, thereby denying[ BNY Mellon] an opportunity to
         explore unresolved issues of fact[,] which include the role of
         [Appellees] and [an] employee in the closing of the property
         in 2004[,] the responsibility of [Appellees] to record the
         mortgage[,] the unresolved issue of where and whether the
         closing took place at Commonwealth[’s] or Fidelity’s office,
         the extent to which [Appellees] actually participated in the
         closing, and the defalcation of the mortgage money by
         [Appellees’] own employee.

Brief for Appellant, at 9.

      Our review of a trial court’s decision to grant a motion for judgment on

the pleadings

      is limited to determining whether the trial court committed an
      error of law or whether there were facts presented which
      warrant a jury trial. In conducting this review, we look only to
      the pleadings and any documents properly attached thereto.
      “Judgment on the pleadings is proper only where the pleadings
      evidence that there are no material facts in dispute such that a
      trial by jury would be unnecessary.”

Maryland Cas. Co. v. Odyssey Contracting Corp., 894 A.2d 750, 753

(Pa. Super. 2006) (quoting Travelers Cas. & Sur. Co. v. Castegnaro, 772

A.2d 456, 459 (Pa. 2001)). Further,

      [w]e must accept as true all well[-]pleaded statements of fact of
      the party against whom the motion is granted and consider
      against him only those facts that he specifically admits. We will
      affirm the grant of such a motion only when the moving party’s
      right to succeed is certain and the case is so free from doubt
      that the trial would clearly be a fruitless exercise.

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Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003)

      In its first issue, BNY Mellon asserts that the trial court assumed facts

not in evidence. However, in the argument section of its brief, BNY Mellon’s

sole assertion in support of this claim is that the court “misapprehended a

critical fact . . . in holding that [BNY Mellon] failed to complete a condition

precedent necessary for the issuance of title insurance. The satisfaction of

the mortgage as a condition precedent was the obligation of

[Appellees].”    Brief for Appellant, at 14 (emphasis in original).       This

argument is without merit.

      By the terms of the Commitment, Commonwealth Land was obligated

to issue a title insurance policy only if certain conditions precedent were

met, including the discharge of the Wolper Mortgage. Accordingly, as BNY

Mellon averred, and the trial court accepted as true, when the Wolper

Mortgage was not discharged because Attorney Marchewka failed to advance

the necessary funds, a title insurance policy was not issued. Thus, the title

insurance policy, the would-be contract at issue in this matter, never came

into being. Therefore, the trial court correctly determined that BNY Mellon’s

contract and bad faith claims could not stand as a matter of law. Minnich,

supra.

      BNY Mellon also argues in its first issue that the trial court erred by

applying a two-year statute of limitations to its contract claims. Indeed, the

trial court applied a two-year statute of limitations in dismissing BNY

Mellon’s negligence and respondeat superior claims, since BNY Mellon was

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put on notice that a title insurance policy had not been issued on August 23,

2010, and did not initiate the instant action until 2014.            However, as

discussed above, BNY Mellon’s contract claims were properly dismissed on

grounds not involving the statute of limitations. It appears that BNY Mellon

has conflated the court’s treatment of its contract and tort claims, and as

BNY Mellon has cited no authority contrary to the court’s ruling, we discern

no error.

      Finally, BNY Mellon argues that it did not have an opportunity to

explore factual issues and obtain discovery and information regarding:

               The closing file[,] including all documents relating to the
                mortgages that were recorded without receipt of funds;

               The file of [Appellees’]      approved     agent   employee
                [Attorney] Marchewka;

               Information on where the closing took place;

               Information on why the mortgages were              recorded
                [despite] the fact that the lender was not paid;

               The criminal records of [Attorney] Marchewka;

               Why [Appellees] did not tender a policy;

               Why [Appellees] did not notify [Gateway] of the defalcated
                funds until 2010.

Brief for Appellant, at 19.

      Although BNY Mellon lists several areas of factual uncertainty, none of

the issues raised either changes the fact that the condition of removing the

Wolper Mortgage was not met or alters the applicability of the statute of

limitations to BNY Mellon’s negligence and respondeat superior claims.



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Indeed, BNY Mellon makes no attempt to explain how the factual issues

raised would be material to or would alter the determination made by the

court below. Accordingly, a trial would be unnecessary because the material

facts remain undisputed. Maryland Cas. Co., supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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