Lynch, J. v. Bank of America ( 2017 )

J-S09001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. LYNCH, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BANK OF AMERICA, BAYVIEW LOAN
SERVICING, KML LAW GROUP AND
MATHEW FISEL, ESQUIRE,
Appellees Nos. 1434 & 1435 EDA 2016
Appeal from the Orders Entered April 12, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 151202495
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 01, 2017
John J. Lynch (“Lynch”) appeals pro se from the orders1 entered on
April 12, 2016, sustaining preliminary objections filed by Bank of America
(“BoA”), Bayview Loan Servicing (“Bayview”), KML Law Group (“KML”), and
Mathew Fisel, Esq. (“Fisel”)2 (collectively, “Appellees”). We affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
The trial court noted, “Lynch filed separate Notices of Appeal for each of
this [c]ourt’s rulings; these matters were consolidated via court order on
June 25, 2016. . . .” Trial Court Opinion, 8/26/16, at n.2.
2
In his brief, Fisel spells his given name as “Matthew.” KML and Fisel’s
Brief at 4.
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Because neither Lynch nor the trial court provided a factual history of
this matter, we glean the facts of this case from the record. Lynch filed suit
against Evelyn Rivera (“Rivera”) on December 3, 2014, averring that she
was responsible for injuries he sustained on November 2, 2014, when
Michael Wilson and Tara Wilson assaulted Lynch after they followed Rivera
into his apartment where Rivera was seeking refuge. Lynch obtained a
default judgment against Rivera for $50,000. KML/Fisel Preliminary
Objections, 2/10/16, at Exhibit B; Response to Preliminary Objections,
2/16/16, at ¶ 1.
In aid of execution on the default judgment, Lynch filed a petition for
supplemental relief pursuant to Pa.R.C.P. 3118, requesting that the trial
court order Rivera’s mortgagees, BoA and Bayview, to provide Lynch with
her homeowner’s insurance information. Response to Preliminary
Objections, 2/16/16, at ¶ 5. The trial court denied the petition. Order,
12/22/15. In response, Lynch sought to intervene in Appellees’ foreclosure
action against Rivera.3 Petition to Intervene, 4/28/16. The trial court
denied the petition. Order, 5/20/16. Lynch filed an appeal, which we
quashed sua sponte. Order, 8/15/16.
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3
BoA commenced a foreclosure action against Rivera’s property on June 25,
2014, as a result of her default on mortgage payments. After BoA assigned
the mortgage to Bayview, Bayview was substituted as the plaintiff in the
foreclosure action. KML represented the mortgagees in the foreclosure
action, and Fisel is an attorney with the firm. KML/Fisel Preliminary
Objections, 2/10/16, at ¶¶ 3-5.
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In the action underlying this appeal, Lynch filed a pro se complaint
against Appellees on December 28, 2015, averring that his left eye was
permanently injured as a result of the actions of Rivera. Complaint,
12/28/15, at ¶¶ 1, 2. Lynch further averred that he obtained a judgment
against Rivera for damages in the amount of $50,000. Id. at ¶ 2. Seeking
recovery of the damages under Rivera’s homeowner’s insurance policy,
Lynch averred that he repeatedly demanded that Appellees provide him with
Rivera’s insurance information. Id. at ¶¶ 1, 3, 7. In his prayer for relief,
Lynch requested judgment against Appellees in the amount $50,000, plus
court costs, purportedly for failing to provide Rivera’s homeowner’s
insurance information.
KML and Fisel filed preliminary objections to Lynch’s complaint on
February 10, 2016, and BoA and Bayview filed preliminary objections on
February 16, 2016. In two separate orders entered on April 12, 2016, the
trial court sustained both sets of preliminary objections. This appeal
followed.
On appeal, Lynch presents three issues for our consideration:
1. Does the opinion of the trial court accurately reflect the
gist of the matter in the complaint?
2. Does Homeowners insurance cover the interest of the
mortgagee and mortgagor equally against losses to their
interest attacked in Writ of execution arrived at by suits at
law upon the mortgagee[?]
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3. Can the [A]ppellees refuse to provide the information
demanded in the complaint and ordered by the trial court
to be provided in related case 150304249 with impunity[?]
Lynch’s Brief at 4 (answers omitted).
As stated above, Lynch appeals from orders sustaining Appellees’
preliminary objections, wherein they claimed that Lynch demurred, i.e.,
failed to state a cause of action for which relief can be granted. KML/Fisel
Preliminary Objections, 2/10/16, at ¶ 9; BoA/Bayview Preliminary
Objections, 2/16/16, at ¶ 9.
Our standard of review of a trial court’s order granting
preliminary objections in the nature of a demurrer is de novo
and our scope of review is plenary. Soto v. Nabisco, Inc., 32
A.3d 787, 789 (Pa.Super.2011). “The question presented by the
demurrer is whether, on the facts averred, the law says with
certainty that no recovery is possible. Where a doubt exists as to
whether a demurrer should be sustained, this doubt should be
resolved in favor of overruling it.” Id. at 790.
A demurrer by a defendant admits all relevant facts
sufficiently pleaded in the complaint and all
inferences fairly deducible therefrom, but not
conclusions of law or unjustified inferences. In ruling
on a demurrer, the court may consider only such
matters as arise out of the complaint itself; it cannot
supply a fact missing in the complaint.
Id. (quoting Butler v. Charles Powers Estate, 29 A.3d 35,
38–39 (Pa.Super.2011)). Consequently, “preliminary objections
should be sustained only if, assuming the averments of the
complaint to be true, the plaintiff has failed to assert a legally
cognizable cause of action.” Id. at 789–90. “Where the
complaint fails to set forth a valid cause of action, a preliminary
objection in the nature of a demurrer is properly sustained.” Id.Krajewski v. Gusoff, 53 A.3d 793, 802 (Pa. Super. 2012).
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Lynch’s first issue challenges the trial court’s understanding of the
underlying action. According to Lynch, the trial court has “no grasp on the
gist of the subject matter in the complaint.” Lynch’s Brief at 8. Lynch
asserts that his claim “is for personal injury,” which was the result of
Rivera’s actions, and that, as “co interested parties with Rivera,” Appellees
are required to provide the requested insurance information. Id. at 8–9.
We observe one factual misstatement by the trial court. Lynch
averred that the judgment he obtained against Rivera was for damages
resulting from a permanent injury to his left eye. The trial court, however,
incorrectly stated that he sought to recover against Rivera’s policy “for
damage done to his own home.” Trial Court Opinion, 8/26/16, at 1.
Otherwise, we discern no error in the trial court characterizing Lynch’s
claims as sounding in personal injury and bad faith. Id. Lynch filed suit
against Appellees based on their failure to produce Rivera’s insurance
information (bad faith), and he requested judgment against them for
damages in the same amount as that awarded by default in his case against
Rivera—$50,000 (personal injury).
Upon review of the entire record, we discern no substantive lack of
understanding by the trial court. The factual inaccuracy in the trial court’s
opinion is insignificant and does not undermine its ultimate conclusion that
“all of Lynch’s claims, both in tort and in contract, could not warrant
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recovery against these Appellees.” Trial Court Opinion, 8/26/16, at 2. Thus,
Lynch’s first issue affords no relief.
Next, Lynch asks if Rivera’s homeowner’s policy equally covers her
interest and the defendant mortgagees’ interest in her home against losses.
According to Lynch, “it does.” Lynch’s Brief at 4. We interpret Lynch’s
argument as suggesting that BoA and Bayview are required to provide
Rivera’s homeowner’s insurance policy because they, like Rivera, have an
interest in her home. Id. at 9.4
At the heart of this issue is a question of duty, which the trial court
addressed as follows:
Accepting all of the facts that Lynch has alleged in [the]
Complaint as true, this [c]ourt agreed with Appellees that no
recovery against any one of them is possible. It is unclear to
this [c]ourt why Lynch feels that the assignee of a mortgage (or
the law firm involved in foreclosure proceedings related to that
mortgage) has any responsibility to furnish information of any
kind to a third party who claims to have been injured in a
property other than the mortgaged premises. Lynch has failed
to identify any sort of duty, created by law or by contract, that
any of the parties to this case would have to him. For that
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4
Lynch also argues that Appellees “should not be permitted to refuse to
comply with the order of the court in the related case NO.# 15-03-04249 of
September 15, 2015 to provide insurance information . . . .” Lynch’s Brief
at 9. Appellees deny that they were ordered to do so. KML/Fisel’s Brief at
5, 14; BoA/Bayview’s Brief at 8, 22. Regardless, we note that the record
does not include a copy of the referenced order, and, therefore, we will not
consider it as a basis for disturbing the trial court’s ruling. See Stumpf v.
Nye, 950 A.2d 1032, 1041 (Pa. Super. 2008) (“[T]his Court may only
consider items which have been included in the certified record and those
items which do not appear of record do not exist for appellate purposes.”).
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reason, all of Lynch’s claims, both in tort and in contract, could
not warrant recovery against these Appellees.
Trial Court Opinion, 8/26/16, at 2.
We reiterate:
Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon
the appellant. To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his
undoing.
Wilkins v. Marsico, 903 A.2d 1281, 1284–1285 (Pa. Super. 2006) (internal
citations omitted).
Upon review, we observe that Lynch presents neither a cogent
argument nor controlling authority regarding BoA’s or Bayview’s alleged duty
to provide Rivera’s insurance information. Thus, this issue is waived. See
Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034, 1045
(Pa. Super. 2015) (citing Pa.R.A.P. 2119(a), (b) to support finding of waiver
where arguments were undeveloped and unsupported by any controlling
authority).
Lastly, Lynch asks whether Appellees can refuse to provide the
information demanded in the complaint and ordered by the trial court in
another case with impunity. Lynch’s Brief at 9. For the reasons noted
above, we also find this issue to be waived. Ramalingam, 121 A.3d at
1045, Pa.R.A.P. 2119(a), (b).
Orders affirmed.
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Judges Stabile and Platt concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
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