J. A17040/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

GREGORY WASHINGTON, 

WICK SAVAGE, THE BANK OF 

NEW YORK MELLON, F/K/A THE BANK 

OF NEW YORK, AND INTERVENOR 

PLAINTIFFS EUGENE MATTIONI AND 

MARIE J. MATTIONI, 

F/K/A MARIE J. KILLIAN

:

:

:

:

:

:

:

: No. 2100 EDA 2018

APPEAL OF: EUGENE MATTIONI AND 

MARIE J. KILLIAN MATTIONI

:

:

Appeal from the Order Entered June 8, 2018,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. September Term, 2016 No. 00219

BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 08, 2019

Eugene Mattioni and Marie J. Killian Mattioni (“appellants”)

1 appeal the 

June 8, 2018 order2 entered in the Court of Common Pleas of Philadelphia 

County granting Gregory Washington (“the Record Title Owner”) and 

Wick Savage’s (“Savage”) motion to strike appellants’ lis pendens relating to 

 

1 We note that both appellants are attorneys and represent themselves in this 

matter.

2 We note that the order was executed on June 7, 2018, but not entered on 

the docket until June 8, 2018. The caption has been updated to reflect the 

date the order was docketed.
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the property located at 4115-19 Gypsy Lane, Philadelphia, Pennsylvania 

(“the Property”). We affirm.

The trial court set forth the factual and procedural history as follows:

On September 6, 2016, [] Bank of New York Mellon 

[(“BNY Mellon”)] filed a mortgage foreclosure 

complaint against [the Record Title Owner] regarding 

a mortgage that it holds on the Property. On June 29, 

2017, a default judgment was entered against the 

Record Title Owner for failing to file a timely answer 

to [BNY Mellon’s] complaint. The date for the Sheriff’s 

Sale was postponed by requests of [BNY Mellon] and 

the Record Title Owner several times so that the 

Property could be sold through a short sale 

transaction.

On April 16, 2018, [appellants] filed a Petition to 

Intervene[Footnote 1] and a Motion to Stay any Short 

Sale between [BNY Mellon] and the Record Title 

Owner. [Appellants] own and reside at 4111 Gypsy 

Lane and also own 4109 Gypsy Lane, which are 

located immediately adjacent to the Property. As part 

of the mortgage action, [appellants] filed a 

lis pendens on the Property as well as a Third Party 

Complaint against [BNY Mellon], the Record Title 

Owner, and [] Savage.[Footnote 2]

[Footnote 1] The trial court entered an 

ex parte order granting [appellants’] 

Petition to Intervene. Whether 

[appellants] have a sufficient interest in 

the mortgage action to have been granted 

intervenor status is not the subject of this 

appeal.[

3]

 

3 We note that appellate courts are prohibited from raising the issue of 

standing sua sponte because “[w]hether a party has standing to maintain an 

action is not a jurisdictional question.” See In re Nomination Petition of 

deYoung, 903 A.2d 1164, 1168 (Pa. 2006). Therefore, we cannot address 

whether intervention was proper in this case.
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[Footnote 2] [] Savage allegedly resides 

in and has an ownership interest in the 

Property.

In their lis pendens, [appellants] assert that the 

Record Title Owner abandoned and failed to maintain 

an easement that allegedly encroaches on the 

Property.[

4] In their complaint, [appellants] 

requested injunctive relief to stay any sale and 

asserted claims of negligence, waste, breach of

contract, recision of the easement, and trespass, for 

which they sought monetary damages.

On May 16, 2018, the Record Title Owner [and 

Savage] filed a Motion to Strike the lis pendens on 

the Property. On June 8, 2018, the trial court granted 

the motion striking the lis pendens on the Property. 

On July 3, 2018, [appellants] filed this timely appeal.

Trial court opinion, 8/29/18 at 1-2. The trial court did not order appellants to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). However, the trial court filed a Rule 1925(a) opinion.

Appellants raise the following issues for our review:

1. Whether a dispute over the viability of a land 

locked easement of ingress and egress for 

pedestrians and vehicles between adjoining 

residential properties is a property interest 

subject to a Lis Pendens in order to place 

prospective purchasers of either the dominant 

estate or servient estate on notice of the dispute 

and litigation and the potential that the 

 

4 The record reveals that the easement encroaches, or intrudes, upon 

appellants’ property, the servient estate, for the benefit of the Record Title 

Owner’s Property, the dominant estate. See Grant of Easement, Reproduced 

Record at 46a (stating, a perpetual easement of ingress and egress, for 

pedestrian and vehicular traffic, is granted and shall extend only to the current 

driveway, the bridge, and the turnaround area immediately adjacent to the 

bridge on Premises A (appellants’ property) in favor of Premises B (Record 

Title Owner’s Property)).
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easement will be extinguished by the 

litigation? . . . .

2. Is the decision and conclusion of law of the [trial 

court] supported by competent evidence and 

applicable law and an abuse of discretion[?] 

Should the [trial c]ourt’s Order striking the 

Lis Pendens be reversed as not in compliance 

with competent evidence, law and an abuse of 

discretion?

Appellants’ brief at 2-3 (footnote omitted).5

Preliminarily, we must resolve the jurisdictional issue raised sua sponte

by this court. (See per curiam order, 8/10/18 (asking appellants to show 

cause as to why the appeal should not be quashed because the order striking 

the lis pendens may not be final and appealable).) Appellants filed a 

response stating the order striking the lis pendens qualified as a final order 

and also a collateral order and, therefore, was appealable. We agree this 

court has jurisdiction over the appeal, and the appeal need not be quashed. 

See Barak v. Karolizki, 196 A.3d 208, 220 (Pa.Super. 2018) (holding, “an 

 

5 We note that appellants’ brief fails to comply with Pennsylvania Rule of 

Appellate Procedure 2111; specifically, the brief fails to include a statement 

of jurisdiction, the order or other determination in question, a statement of 

both the scope of review and standard of review, and a summary of the 

argument. See Pa.R.A.P. 2111(a). Although we do not condone appellants’ 

failure to conform to the Pennsylvania Rules of Appellate Procedure, 

appellants’ failure does not hamper our review. See Kern v. Kern, 892 A.2d 

1, 6 (Pa.Super. 2005) (holding, “as a practical matter, this Court quashes 

appeals for failure to conform to the Rules of Appellate Procedure only where 

the failure to conform to the Rules results in the inability of this Court to 

discern the issues argued on appeal.”).
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order striking a lis pendens notice is an immediately appealable order, either 

as a final or collateral order.”).

A review of appellants’ brief demonstrates that both of appellants’ issues 

challenge the trial court’s granting of the motion to strike appellants’

lis pendens. Therefore, we address appellants’ issues collectively.

This court has long held:

Lis pendens is construed to be the jurisdiction, 

power, or control which courts acquire over property 

involved in a suit, pending the continuance of the 

action, and until final judgment. The doctrine does 

not establish an actual lien on the affected property, 

but rather merely gives notice to third parties that any 

interest that may be acquired in the property pending 

the litigation will be subject to the result of the action. 

Finally, Lis pendens is based in common law and 

equity jurisprudence, rather than in statute, and is 

wholly subject to equitable principles.

Dorsch v. Jenkins, 365 A.2d 861, 863-864 (Pa.Super. 1976) (citations and 

internal quotations omitted). When reviewing matters of equity, this court is 

limited to determining whether the trial court committed an error of law or 

abused its discretion. Barak, 196 A.3d at 223.

Courts must apply a two-part test to determine if a lis pendens should 

be stricken. Id. at 222.

[S]tep one “is to ascertain whether title is at issue in 

the pending litigation.” In re: Foremost Industries, 

Inc. v. GLD, 156 A.3d 318, 322 (Pa.Super. 2017). If 

this first prong is satisfied, the analysis proceeds to a 

second step where:

the [trial] court must balance the equities 

to determine whether (1) the application 
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of the doctrine is harsh or arbitrary and 

(2) whether the cancellation of the 

lis pendens would result in prejudice to 

the non-petitioning party.

Id. at 322-323[, ]quoting Rosen v. Rittenhouse 

Towers, 334 Pa.Super. 124, 482 A.2d 1113, 1116 

(1984).

Barak, 196 A.3d at 222.

Here, appellants seek to extinguish the easement that encroaches on 

their property for the benefit of the Record Title Owner’s Property. 

(Appellants’ brief at 8.) Appellants argue that any potential purchaser of the 

Property would want to know appellants challenge the easement. (Id. at 10.) 

Appellants contend it was an abuse of discretion for the trial court to strike 

the lis pendens without, among other things, visiting the Property.6 (Id.

at 13.)

A review of the record demonstrates that the easement, which is the 

basis of appellants’ lis pendens, intrudes on appellants’ property and is 

appurtenant to and runs with the Property, which is the subject of the 

 

6 We note that appellants contend, “[i]t is not necessary to cite a case to aid 

in the conclusion that there is no clearer an abuse of discretion than in this 

case.” We disagree. See Pa.R.A.P. 2119(a) (requiring that the argument 

section of a brief shall contain “discussion and citation of authorities as are 

deemed pertinent.”). We note that a review of appellants’ brief reveals no 

citation to any legal authority that supports appellants’ argument that the trial 

court abused its discretion in striking the lis pendens. See Stimmler v. 

Chestnut Hill Hosp., 981 A.2d 145, 153 n.9 (Pa.Super. 2009) (holding that

the argument section of appellant’s brief should contain citations to the record 

and legal authority, as well as analysis and application to the facts, to guide 

this court in its review of the issue).
J. A17040/19

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mortgage foreclosure action, for the benefit of any future owners of the 

Property. (See appellants’ notice of lis pendens, 5/4/18 at Exhibit A & B.) 

The trial court concluded that the imposition of a lis pendens on the Property 

was improper because “title to the [P]roperty is not at issue.” (Trial court 

order, 9/8/18 at n.1; see also trial court opinion, 8/29/18 at 4.) We are 

unpersuaded by appellants’ argument, which is unsupported by legal 

authority, that title is at issue because a purchaser of the Property at 

Sheriff’s Sale might not have use of the easement if appellants prevail in their

attempt to extinguish the easement. Appellants acknowledge that the Record

Title Owner has title to the Property. (See appellant’s motion and petition to 

intervene, 4/16/18 at 1.)

The record supports the trial court’s conclusion that title is not at issue,

and we find no abuse of discretion in the trial court’s granting of the motion 

to strike the lis pendens on the grounds appellants failed to establish that 

title to the Property was at issue. See Barak, 196 A.3d at 222. Consequently, 

appellants’ claims that the trial court erred as a matter of law and abused its 

discretion in striking the lis pendens must fail.

Order affirmed.
J. A17040/19

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/19