J. A 1 7 0 40 /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 order 2 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 appellant s ’ lis pendens relating to

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

matter.

2 We not e that the order was executed on J une 7 , 2018, but not entered on

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

date the order was docketed.J. A1 7 0 40 /19

- 2

-

the property located at 4115

- 19 Gypsy Lane, Ph iladelphia, Pennsylvania

(“the P roperty”). We affirm.

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

On September 6, 2016, [] Ba nk 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 fi le 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 adjace nt to the Property. As part

o f the mortgage action, [appellants] filed a

li s pendens on the Property as well as a Third Party Complaint against [BNY Mellon] , the Record Tit le 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 addre ss whether intervention w as proper in this case

.J. A1 7 0 40 /19

- 3

- [Footnote 2] [] Savage allegedly resides

in and has an ownership in tere st in the Property

.

In their l

is pendens

, [appellants] assert that the

Record Title Owner abandoned and failed to maintain

an e asement that allegedly encroaches on the Property. [ 4 ] In their complaint, [appellants] requested injunct ive relief to stay any sale and

asserted claims of negligence, waste, bre ach of contract, recision of the easement, and trespass, for

whi ch they sought monetary damages.

On May 16, 2018, the Record Title Owner [and Savage] filed a Motion to Strike the li s pendens on the Property. On June 8, 2018, the trial court granted the motion striking the lis pendens on the Prop erty. 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 complain ed of on appeal pursuant to

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

Appellant s 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 th e 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 Easeme nt, 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 Pre mises A (a ppellants’ property) in favor of Premises B (Record Title Owner’s Property) )

.J. A1 7 0 40 /19

- 4

- 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?

Appe llants’ brief at 2

- 3 (footnote omitted). 5

Preliminar ily, 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 appea lable).) Appellant s 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 quashe d

.

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 appell ants’

failure to conform to the Pennsylvania Rules of Appellate P rocedure, 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. ”).J. A1 7 0 40 /19

- 5

-

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 a ppellants’ issues

chal lenge the trial court’s granting of the motion to strike appellant s ’

lis pendens

. Therefore, we address appellants’ issues collectively.

This court has long held:

Lis pendens is construed to be the jurisdiction, power, or control wh ich 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

interes t that may be acquired in the property pending the litigation will be subje ct 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 o f 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 (P a. 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 applicationJ. A1 7 0 40 /19

- 6

- 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 prop erty for the benefit of the Record Title Owner ’s Property

.

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

P roperty would want to know appellants challenge the easement

. ( Id. a t 10.)

Appellants co ntend 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 , intr udes on appellants’ property and is

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

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

in the con clusion 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 tha t a review of appellants’ brief reveals no citation to any legal authority that supports appellant s ’ 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. A1 7 0 40 /19

- 7

-

mortgage foreclosure action, for the ben efit 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 P roperty

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

u npersuaded by appella nt s ’ argument, which is unsupported by legal

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

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

attempt to extinguish the easement. Appellants acknowled ge that the Record

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

intervene, 4/16/18 at 1.)

T he 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 P roperty 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. A1 7 0 40 /19

- 8

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/8/19