ETRADE v. Grassa, M. ( 2020 )

J-A04039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E*TRADE BANK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW GRASSA, SANDRA :
LANDMESSER GRASSA AND :
OCCUPANTS : No. 661 EDA 2019
:
Appellants :
Appeal from the Judgment Entered January 24, 2019
In the Court of Common Pleas of Delaware County Civil Division at
No(s): CV-2017-006606
BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED MAY 12, 2020
Appellants, Matthew Grassa and Sandra Landmesser Grassa
(Defendants), appeal from judgment entered on January 24, 2019, against
Defendants and in favor of E*Trade Bank (Plaintiff). We affirm.
The facts underlying this appeal are as follows. Defendants are the
current occupants of the property in question. Amended Complaint at ¶ 9,
Answer at ¶ 9. Plaintiff filed a complaint in ejection against Defendants.
Amended Complaint, New Matter at ¶ 16. Plaintiff attached a Sheriff’s Deed
to its Amended Complaint that accurately described the property in question.
Amended Complaint, Exhibit 1; Answer at ¶ 3.
On July 26, 2017, Plaintiff filed a complaint for ejectment against
Defendants. On December 27, 2017, Defendants filed preliminary objections
to Plaintiff’s complaint, alleging that Plaintiff failed to conform its complaint to
*Retired Senior Judge assigned to the Superior Court.
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established law because the verification attached to the complaint was signed
by Plaintiff’s attorney Martha E. Von Rosentiel, Esq., and not Plaintiff. Plaintiff
filed an amended complaint on January 16, 2018, attaching a verification
signed by the Vice President of Bayview Loan Servicing, LLC (Bayview),
Attorney-in-fact for Plaintiff, verifying that the statements in the complaint
are true and correct to the best of her knowledge and made subject to 18
Pa.C.S. § 4904. Plaintiff attached a limited power of attorney between Plaintiff
and Bayview to the amended complaint. On February 16, 2018, Defendants
filed preliminary objections to Plaintiff’s amended complaint. Defendants
claim that Plaintiff failed to attach a proper abstract of the title of the property
to their complaint. Additionally, Defendants again complained that the
verification attached to the amended complaint was not signed by Plaintiff and
states, “[t]he power of attorney attached to the amended complaint does not
grant authority to Bayview or any other attorney-in-fact to bring an action in
ejectment.”
On February 26, 2018, Plaintiff filed a response to Defendants’
preliminary objections. On May 3, 2018, the trial court filed an order
overruling Defendants’ preliminary objections. On May 23, 2018, Defendants
filed an Answer to Plaintiff’s complaint and incorporated new matter. On June
7, 2018, Plaintiff filed a reply to Defendants’ new matter. On June 11, 2018,
Plaintiff filed a motion for summary judgment, which the trial court denied
without prejudice for Plaintiff to refile its motion upon completion of discovery.
On October 22, 2018, Plaintiff filed a second motion for summary judgment.
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On January 24, 2019, the trial court granted summary judgment in favor of
Plaintiff and entered judgment in favor of Plaintiff. On February 25, 2019,
Defendants filed this timely notice of appeal.1
Defendants present the following issues for review:
1. Whether, where genuine issues of material fact exist, the
trial court abused its discretion and/or committed errors
of law by granting a motion for summary judgment.
2. Whether, where a post-foreclosure complaint in
ejectment was brought by an agent pursuant to a limited
power of attorney which does not grant to the agent the
authority to bring post-foreclosure actions in ejectment
or otherwise, the trial court abused its discretion and/or
committed errors of law by overruling the defendants’
preliminary objections and granting plaintiff’s motion for
summary judgment.
3. Whether, where the plaintiff failed to attach a valid and
complete abstract of title to its ejectment complaint, the
trial court abused its discretion and/or committed errors
of law by overruling the defendants’ preliminary
objections and granting plaintiff’s motion for summary
judgment.
Defendants’ Brief at 8.
Our standard of review of an appeal from an order granting summary
judgment is well settled:
Summary judgment may be granted only in the clearest of
cases where the record shows that there are no genuine
issues of material fact and also demonstrates that the
moving party is entitled to judgment as a matter of law.
Whether there is a genuine issue of material fact is a
question of law, and therefore our standard of review is de
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1The trial court did not order Defendants to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
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novo and our scope of review is plenary. When reviewing a
grant of summary judgment, we must examine the record
in a light most favorable to the non-moving party.
Reason v. Kathryn's Korner Thrift Shop, 169 A.3d 96, 100 (Pa. Super.
2017) (internal citations omitted).
Defendants’ first and second issues can be discussed together.
Defendants, in their brief, set out excerpts from their various pleadings under
their first issue heading. Defendants conclude that a genuine issue of material
fact existed as to whether Bayview had the authority to bring the current
action. However, Defendants do not provide an argument on this point under
this heading, but rather discuss Bayview’s authority under their second issue
heading. Therefore, we will discuss the first two issues as one. Defendants
argue that Bayview lacked the authority to sign the verification on behalf of
Plaintiff, in violation of Pa.R.Civ.P. 1024, and accordingly the trial court erred
in granting summary judgment.
Pa.R.Civ.P. 1024 states:
(a) Every pleading containing an averment of fact not
appearing of record in the action or containing a denial of
fact shall state that the averment or denial is true upon the
signer's personal knowledge or information and belief and
shall be verified. The signer need not aver the source of the
information or expectation of ability to prove the averment
or denial at the trial. A pleading may be verified upon
personal knowledge as to a part and upon information and
belief as to the remainder. . . .
(c) The verification shall be made by one or more of the
parties filing the pleading unless all the parties (1) lack
sufficient knowledge or information, or (2) are outside the
jurisdiction of the court and the verification of none of them
can be obtained within the time allowed for filing the
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pleading. In such cases, the verification may be made by
any person having sufficient knowledge or information and
belief and shall set forth the source of the person's
information as to matters not stated upon his or her own
knowledge and the reason why the verification is not made
by a party.
Pa.R.Civ.P. 1024. Any person, including an attorney for a party, may verify
on behalf of another party, provided that person does so only in those cases
in which the conditions delineated in Rule 1024 are present. JP Morgan
Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1270 (Pa. Super. 2013) (citation
omitted).
Verification is necessary to defend a party against spurious
allegations; it must not be transformed into an offensive
weapon designed to strike down an otherwise valid petition.
While we do not, of course, condone willful noncompliance
with our procedural rules, a hypertechnical reading of each
clause, and a blind insistence on precise, formal adherance,
benefits neither the judicial system nor those utilizing that
system. [C]ourts should not be astute in enforcing
technicalities to defeat apparently meritorious claims.
Monroe Contract Corp. v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa.
Super. 1979) (this Court reversed dismissal of a petition where verification
alleged party did not have knowledge but did not allege party was without
sufficient information).
The verification is signed by the Vice President of Bayview Loan
Servicing, as attorney-in-fact for Plaintiff, and states that Bayview has been
authorized to make the verification on behalf of Plaintiff. The verification
states that Plaintiff “lacks the sufficient knowledge or information to make this
verification” because it delegated the servicing activities to Bayview, its
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attorney-in-fact. The verification states, “the undersigned is fully familiar with
the statements made in the complaint and verifies that the facts set forth in
the amended complaint are true and correct to the best of her knowledge,
information and belief.” This satisfies the requirements of Pa.R.Civ.P. 1024.
Defendants additionally argue that the limited power of attorney
between Bayview and Plaintiff did not grant Bayview, as the agent and
attorney-in-fact of Plaintiff, the authority to bring post-foreclosure actions,
namely, an action in ejectment. In addition, Defendants argue that the power
of attorney has expired. Defendants are challenging the validity of the power
of attorney signed between Bayview and Plaintiff, namely, they are
challenging the terms of the agreement. However, as Defendants are not a
party to the power of attorney, Defendants do not have standing to challenge
it. See Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7
A.3d 278, 287–88 (Pa. Super. 2010) (appellant had no rights under
agreement between appellee and another party; appellant was not a third
party beneficiary of contract between appellee and other party). E*Trade is
the plaintiff bringing the ejectment action, therefore, it is not necessary that
Bayview’s power of attorney give it authority to bring the action. Bayview is
not the plaintiff bringing the ejectment action.
Next, Defendants dispute the sufficiency of the abstract of title
presented by Plaintiff in its complaint. In an action in ejectment, Pa.R.Civ.P.
1054(b) provides: “A party shall set forth in the complaint or answer an
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abstract of the title upon which the party relies at least from the common
source of the adverse titles of the parties.” Pa.R.Civ.P. 1054(b).
An abstract of title is simply a compilation in an abridged
form of the record of the vendor's title; it is a summary of
the most important parts of the deeds and other
instruments comprising the evidences of title, arranged in
chronological order, and intended to show the original
source and incidents of title. [I]f the plaintiff's abstract
reveals a defect in his chain of title, he will not have
established a prima facie title, without which his claim must
fail; the defendant need prove nothing.
Busin v. Whiting, 535 A.2d 1078, 1080 (Pa. Super. 1987) (internal citations
omitted), rev’d on other grounds, 570 A.2d 508 (Pa. 1989).
Plaintiff complied with Pa.R.Civ.P. 1054(b). In its complaint, Plaintiff
attached the Sheriff’s Deed, dated May 26, 2017, identifying the property in
question, and stating that the property was vested in Matthew Grassa and
Sandra Grassa by deed from Mark Fletcher Binnion, dated July 11, 2006,
recorded July 12, 2006 in the Delaware County Office of the Recorder of Deeds
in Deed Book 3850, Page 1209. See Amended Complaint, Exhibit pages 6-9
(unpaginated). Plaintiff stated that an in rem judgment in mortgage
foreclosure was entered against Defendants in the Court of Common Pleas of
Delaware County in Docket No. 12-5329. See Amended complaint at ¶ 4.
Plaintiff attached the docket to its complaint. Next, Plaintiff stated that the
subject premises was subjected to a Sheriff’s sale on April 21, 2017, that
Plaintiff was the successful bidder at the Sheriff’s sale and attached the
Sheriff’s Deed Poll to the complaint. Id. Plaintiff stated that the Sheriff’s
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Deed Poll was recorded on June 1, 2017 in the Office of the Recorder of
Delaware County at Instrument No. 2017028402, Book No. 6006, Page 0159.
Id. Plaintiff stated that the Sheriff’s Deed Poll represents the common source
of the adverse titles to the Defendants and Plaintiff. Id. The complaint
incorporates this deed by reference in accordance with Pa.R.Civ.P. 1019(g).
See id. (“a party may incorporate by reference ... any matter which is
recorded or transcribed verbatim in the ... office of the ... recorder of deeds
... of such county”). Plaintiff satisfied Pa.R.Civ.P. 1054(b) by showing the
common source of the title in question.
The verification to the complaint was sufficient under the Rules of Civil
Procedure and Defendants’ arguments as to the limited power of attorney and
abstract of title are meritless.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/12/2020
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