J-A31037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES A. D’ANGELO, SR., AND                       IN THE SUPERIOR COURT OF
CAROLYN D’ANGELO                                        PENNSYLVANIA

                           Appellant

                      v.

JP MORGAN CHASE BANK, N.A.

                                                       No. 167 EDA 2016


                   Appeal from the Order November 30, 2015
          in the Court of Common Pleas of Bucks County Civil Division
                           at No(s): No. 2006-06047

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 13, 2017

        Appellants, James A. D’Angelo, Sr. and Carolyn D’Angelo, appeal from

an order of the Court of Common Pleas of Bucks County at No. 2006-06047

(1) granting the petition of JP Morgan Chase Bank (“Appellee”) to voluntarily

discontinue its mortgage foreclosure action against Appellants without

prejudice at Civil Action No. 2006-06047, and (2) vacating a previous order

consolidating the action at No. 2006-06047 with Appellant’s tort action

against Appellee at No. 2007-00041. Because this order is not appealable,

we quash this appeal.

        This matter has a lengthy procedural history.          On July 3, 2006,

Appellee filed a mortgage foreclosure action against Appellants at No. 2006-

*
    Former Justice specially assigned to the Superior Court.


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06047 alleging that Appellants had defaulted on a note and mortgage dated

August   11,   2005   (“the   Note   and   Mortgage”)   in   the   amount   of

$1,462,500.00. Appellee sought to foreclose on residential property owned

by Appellants in Doylestown, Pennsylvania (“the property”).

     On January 4, 2007, Appellants filed a multi-count complaint against

Appellee and other defendants1 at No. 2007-00041 seeking to quiet title and

to obtain a declaratory judgment that the Note and Mortgage were forged

and unenforceable. Appellee filed an answer to the complaint asserting that

the Note and Mortgage were valid because they were duly notarized, and

that Appellants would be unjustly enriched if the court granted declaratory

relief, because Appellants had two prior mortgages on the property totaling

approximately $1,500,000.00 which they had paid off with the proceeds of

the Note. On March 12, 2007, Appellants filed an amended complaint at No.

2007-00041.

     On July 1, 2010, Appellee filed a motion to consolidate the actions at

Nos. 2006-06047 and 2007-00041.        On July 16, 2010, Appellee filed a

motion for partial summary judgment in Appellant’s action at No. 2007-

00041.

     On December 14, 2010, the trial court granted Appellee’s motion to

consolidate the two actions.    On April 11, 2011, the trial court granted

1
  The other defendants include James D’Angelo, Jr. (Appellants’ son),
Mortgage First Lending Group, Harry Anthony, Citizens Settlement Services,
Inc., Tonya Friend and Michelle Sheridan.



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Appellee’s motion for partial summary judgment and imposed an equitable

lien of $1,339,387.50 against Appellants’ interest in the property, finding

that regardless of whether the Note and Mortgage were forged, Appellants

received a significant benefit from the Note and Mortgage by using the Note

proceeds to pay off prior mortgages.

      On December 28, 2011, Appellants filed a motion for leave to file a

second amended complaint to add EMC Mortgage as an additional defendant

and to add a new claim against Appellee and EMC Mortgage under the Unfair

Trade Practices and Consumer Protection Law.           The trial court did not

immediately rule on Appellants’ motion to amend.

      On September 10, 2012, the trial court denied Appellants’ emergency

motion to stay the sheriff’s sale of the property. On September 12, 2012,

Appellants appealed the order denying their emergency motion to this Court

at 2393 EDA 2012.       On September 14, 2012, the property was sold to

Appellee at sheriff’s sale. Appellants failed to file a petition to set aside the

sheriff’s sale, and the sheriff’s deed was recorded on October 10, 2012. On

December 27, 2012, this Court quashed Appellants’ appeal at 2393 EDA

2012 as interlocutory.     On June 19, 2013, the Supreme Court denied

Appellants’ petition for allowance of appeal.

      On February 6, 2014, Appellee filed a motion for partial summary

judgment on Counts I and II of Appellants’ amended complaint in No. 2007-




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00041. On February 27, 2014, the trial court denied Appellants’ motion for

leave to file a second amended complaint in No. 2007-00041.

     On March 13, 2014, Appellants filed a response in opposition to

Appellee’s motion for partial summary judgment in No. 2007-00041.         On

April 30, 2014, Appellants filed a motion for leave to file a third amended

complaint on the basis of a press release by the United States Department of

Justice which stated that Appellee had agreed to pay a $13 billion settlement

for misleading investors about securities containing toxic mortgages.

     On July 3, 2014, after briefing and oral argument, the trial court

granted Appellee’s motion for summary judgment on Count II but denied

summary judgment on Count I. On August 8, 2014, Appellants appealed the

July 3, 2014 order to this Court at 2313 EDA 2014. On January 13, 2015,

the trial court denied Appellants’ motion for leave to file a third amended

complaint. On March 9, 2015, this Court quashed Appellants’ appeal at 2313

EDA 2014.

     Thereafter, on July 21, 2015, Appellee filed a motion to voluntarily

discontinue its mortgage foreclosure action at No. 2006-06047 without

prejudice pursuant to Pa.R.C.P. 229(a).2    On August 17, 2015, Appellants

filed a response opposing Appellee’s motion. On December 1, 2015, the trial

court entered the order presently on appeal, in which it granted Appellee’s

2
  Pa.R.C.P. 229(a) provides: “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.”



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motion to voluntarily discontinue its action at No. 2006-06047 and vacated

the order consolidating the actions at Nos. 2006-06047 and 2007-00041.

      On December 30, 2015, Appellants filed a notice of appeal at No.

2006-06047—but not at No. 2007-00041—from the December 1, 2015

order. Both Appellants and the trial court complied with Pa.R.A.P. 1925.

      Appellants raise three issues in this appeal:

         1. In this nearly ten-year old case, is it an abuse of
         discretion and error of law to twice deny Appellants’ right
         to amend pleadings to aver transactions or occurrences,
         which have happened before or after the filing of the
         original pleadings and to conform pleadings to evidence
         offered or admitted?

         2.     Where a court grants a petition to voluntarily
         discontinue a foreclosure action “without prejudice” in a
         case that appears completely consolidated with a
         declaratory judgment action, which the court then severs
         in the same order, are all of the otherwise non-final and
         interlocutory orders issued in the consolidated actions now
         final appealable orders?

         3.    Is the April 11, 2011 [o]rder granting [Appellee]
         [p]artial [s]ummary [j]udgment in the amount of
         $1,339,387 and requiring . . . Appellants to confirm an
         equitable lien by executing an Amended and Restated Note
         and Mortgage effective August 11, 2015[,] subject to
         vacatur where Appellants prove that the Note and
         Mortgage are forgeries and that [Appellee] conspired with
         Stewart Title to defraud the court and Appellants in order
         to procure the equitable lien on Appellants’ marital
         property using documents that [Appellee] and Stewart
         Title knew were forgeries?

Appellants’ Brief at 5-6.

      Before we may address the merits of Appellants’ claims, we must first

determine whether we have jurisdiction to entertain this appeal. A court’s


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jurisdiction is a threshold issue that the court may consider at any time. See

McCutcheon v. Philadelphia Elec. Co., 788 A.2d 345, 349 (Pa. 2002);

Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000) (“since we lack

jurisdiction over an unappealable order it is incumbent on us to determine,

sua sponte when necessary, whether the appeal is taken from an appealable

order”) (citation omitted).

      Based on our reasoning in Motley Crew, LLC v. Bonner Chevrolet

Co., Inc., 93 A.3d 474 (Pa. Super. 2014), we lack jurisdiction over

Appellants’ appeal from the order at No. 2006-06047 granting Appellee’s

motion to discontinue its action without prejudice.     In Motley Crew, the

plaintiffs filed a praecipe for entry of default judgment against the

defendants, but the trial court granted the defendants’ petition to open

judgment. Id. at 474. The plaintiffs appealed to this Court and also filed a

praecipe to discontinue their action with prejudice as to all defendants. Id.

      In this Court, the plaintiffs contended that they could “render final for

purposes of appeal an otherwise interlocutory order—in this case, the trial

court’s order granting [a]ppellees’ petition to open default judgment—by

simply discontinuing their underlying action.”      Id. at 476.    This Court

disagreed and quashed the appeal, reasoning as follows:

            The general effect of a discontinuance is to terminate
         the action without an adjudication of the merits and to
         place the plaintiff in the same position as if the action had
         never been instituted.       See 1 Goodrich–Amram 2d §
         229:4; see also Williams Studio Div. of Photography
         by Tallas, Inc. v. Nationwide Mut. Fire Ins. Co., [ ]


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       550 A.2d 1333, 1335 ([Pa.] 1988) (noting in case of a
       voluntary nonsuit, dismissal without prejudice operates to
       leave the parties as if no action had been brought at all).
       Hence, when an action is discontinued, there no longer is
       an action pending before the trial court. It is self-evident
       that if there is no action pending before a court, there is
       no matter over which a court can or may exert jurisdiction.
       The fact that a discontinuance operates to nullify an action
       as if it was never initiated is further supported by Pa.R.C.P.
       [ ] 231(a), which provides “[a]fter a discontinuance. . .the
       plaintiff may commence a second action upon the same
       cause of action. . . .” Rule 231(a) speaks in terms of a
       second or new action and not the continuation or revival of
       the action discontinued. Id. Appellants wrongfully equate
       the effect of entering a discontinuance of an action with
       the entry of a final order from which an appeal may be
       taken.

            Moreover, [a]ppellants’ discontinuance of their action
       rendered it moot, because there no longer was an actual
       case or controversy pending either before the trial court or
       now before this Court. “‘[A]n actual case or controversy
       must be extant at all stages of review, not merely at the
       time the complaint is filed.’” Harris v. Rendell, 982 A.2d
       1030, 1035 (Pa. Cmwlth. 2009) (citing Pub. Defender’s
       Office of Venango County v. Venango County Court
       of Common Pleas, [ ] 893 A.2d 1275, 1279 ([Pa.]
       2006)). Quite simply, [a]ppellants, by discontinuing their
       action immediately prior to filing their appeal in this Court,
       deprived this Court of jurisdiction to hear the issues
       complained of in their appeal.        Because no action is
       pending from which an appeal of an order can be heard,
       this Court is without jurisdiction to hear [a]ppellants’
       claims.    Appellants rendered their action moot.         This
       appeal, therefore, must be quashed. To do otherwise and
       permit the [a]ppellants, or any party, to convert an
       otherwise interlocutory order into a final order by the mere
       filing of a discontinuance praecipe would render
       meaningless the appellate jurisdiction of our courts and all
       rules that require that appeals only be taken from final
       orders of a trial court. Moreover, should this Court hear an
       appeal from an order in a case that has been discontinued
       below, it would be impossible to remand the matter back



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         to the trial court for further proceedings when there is no
         action in the trial court.

Id. at 476-77 (footnote omitted). In a footnote, we observed:

         Our decision here does not affect the proper use of a
         praecipe to voluntarily discontinue less than all parties or
         claims so that an interlocutory order as to any remaining
         claims or parties not discontinued may be rendered final
         for appeal purposes. See Riggio v. Burns, 711 A.2d 497
         (Pa. Super. 1998), appeal dismissed, [ ] 739 A.2d 161
         ([Pa.] 1999) (interlocutory order granting summary
         judgment as to seven of nine counts was made final by a
         praecipe to discontinue remaining two counts); Glenn v.
         Horan, 765 A.2d 426, n. 1 (Pa. Cmwlth. 2001) (order
         granting preliminary objections and dismissing complaint
         as to one defendant was interlocutory at the time it was
         entered, but became a final, appealable order when
         plaintiff entered its “Praecipe to Settle, Discontinue, and
         End” as to all other defendants).             A [voluntary]
         discontinuance as to all parties and claims leaves no action
         pending before the trial court, whereas a [voluntary]
         discontinuance as to less than all parties and claims leaves
         those remaining claims and parties subject to a court’s
         jurisdiction and permits appeals from orders affecting
         those remaining claims and parties.

Id. at 476 n. 5.

      We acknowledge that a procedural difference exists between Motley

Crew and this case. The plaintiffs in Motley Crew discontinued their action

with prejudice, whereas the plaintiff at No. 2006-06047—Appellee—

discontinued   its   mortgage    foreclosure   action   without    prejudice.

Nevertheless, the discontinuance without prejudice in No. 2006-06047 had

precisely the same effect as the discontinuance in Motley Crew: (1) it

“terminate[d] [Appellee’s] action without an adjudication of the merits,” (2)

it “place[d] [Appellee] in the same position as if the action had never been


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instituted,” (3) it “rendered [Appellee’s action] moot, because there no

longer was an actual case or controversy pending either before the trial

court or now before this Court,” and (4) if we heard this appeal, “it would be

impossible to remand the matter back to the trial court for further

proceedings when there is no action in the trial court.”         Id. at 476-77

(citations omitted).   Moreover, as in Motley Crew, Appellee withdrew its

entire action; Appellee did not “voluntarily discontinue less than all parties or

claims so that an interlocutory order as to any remaining claims or parties

not discontinued [were] rendered final for appeal purposes.” Id. at 476 n.

5.   For these reasons, it is equally as proper to quash Appellants’ appeal

from the order granting the discontinuance without prejudice as it was to

quash the appeal in Motley Crew.3


3
   We briefly address several other jurisdictional flaws in Appellants’
arguments. The second argument in Appellants’ brief is that the order
granting Appellee’s motion to discontinue No. 2006-06047 without prejudice
and vacating the December 14, 2010 consolidation order renders all issues
in both Nos. 2006-06047 and 2007-00041 appealable. Building upon this
thesis, the first and third arguments in Appellants’ brief object to two rulings
in No. 2007-00041: (1) the orders denying Appellants’ motions to file second
and third amended complaints, and (2) the equitable lien of $1,339,387
imposed against Appellants’ interest in the property. None of the issues in
No. 2007-00041 are appealable, because there is no final order in No. 2007-
00041 disposing of all claims and all parties. The first count in No. 2007-
00041 remains intact under the trial court’s July 3, 2014 order.             See
Pa.R.A.P. 341(b)(1) (“A final order is any order that. . .disposes of all claims
and all parties”). Nor is any order in No. 2007-00041 an appealable
interlocutory order under Pa.R.A.P. 311, or an appealable collateral order
under Pa.R.A.P. 313. Further, even if any issues in No. 2007-00041 were
appealable, Appellants failed to file a notice of appeal in No. 2007-00041;
their only notice of appeal was in No. 2006-06047.



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     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2017




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