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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE BANK OF NEW YORK MELLON F/K/A IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK, AS TRUSTEE PENNSYLVANIA
FOR THE CERTIFICATE HOLDERS OF
CWALT 2005-01CB
Appellant
v.
COMMONWEALTH LAND TITLE
INSURANCE AND FIDELITY NATIONAL
TITLE GROUP
Appellee No. 2708 EDA 2015
Appeal from the Order Entered July 28, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2014, No. 709
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 18, 2016
The Bank of New York Mellon f/k/a the Bank of New York, as Trustee
for the Certificate Holders of CWALT 2005-01CB (“BNY Mellon”), appeals
from the order entered in the Court of Common Pleas of Philadelphia County,
which granted judgment on the pleadings in favor of Commonwealth Land
Title Insurance (“Commonwealth Land”) and Fidelity National Title Group
(“Fidelity”).
BNY Mellon initiated the instant action by writ on June 5, 2014.
Following a period of pre-complaint discovery, BNY Mellon filed a complaint
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*
Retired Senior Judge assigned to the Superior Court.
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on June 5, 2015, asserting its entitlement to coverage under a title
insurance policy as the result of an assignment from nonparty Gateway
Funding Diversified Mortgage Services, LP (“Gateway”).
Gateway loaned nonparties William and Arlene Segar (the “Segars”)
funds to enable the Segars to purchase real property located at 219
McCombs Road, Venetia, Pennsylvania (the “Property”) in 2004. In
connection with the loan to the Segars, Gateway obtained a commitment to
issue a policy of title insurance from nonparty Commonwealth Abstract and
Closing Services (“Commonwealth Abstract”),1 provided that certain
conditions precedent were met (the “Commitment”).
One of the conditions precedent required to be satisfied before a title
insurance policy would be issued was the discharge of a prior mortgage on
the Property, referred to in the complaint as the “Wolper Mortgage.” See
Complaint, at ¶5. The Wolper Mortgage was not satisfied in 2004 and
allegedly continues to encumber the Property. Id.
BNY Mellon asserted in its complaint that the settlement agent,
nonparty James Marchewka, Esquire, defrauded the Segars and other parties
to the transaction by failing to advance the funds necessary to discharge the
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1
We note that Commonwealth Abstract is a business entity that shares a
name similar to, but is distinct from, Appellee Commonwealth Land. For
purposes of the Commitment, Commonwealth Abstract was acting as
Commonwealth Land’s issuing agent. Throughout its Brief, BNY Mellon
conflates the two entities.
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Wolper Mortgage, and, as a result, Commonwealth Land did not issue a title
insurance policy despite the Commitment provided by Commonwealth
Abstract. On this basis, BNY Mellon included claims in its complaint for
breach of contract and bad faith for the failure to issue a title insurance
policy. BNY Mellon also pled negligence and vicarious liability/respondeat
superior claims, in the alternative, based upon Marchewka’s actions as
settlement agent.
On June 26, 2015 and June 29, 2015, Appellees Commonwealth Land
and Fidelity, respectively, filed motions for judgment on the pleadings. The
trial court granted the motions in favor of both Appellees on July 28, 2015,
finding that the breach of contract and bad faith claims failed because no
policy of title insurance was ever issued. Additionally, the negligence and
respondeat superior claims were found to be barred by the statute of
limitations. Thereafter, the court denied a motion for reconsideration, and
this timely appeal followed.2
On appeal, BNY Mellon raises the following issues for our review:
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2
Appellees filed a motion to quash BNY Mellon’s appeal on the ground that
BNY Mellon’s brief fails to include corresponding answers to each question
raised, as required by Pa.R.A.P. 2116. Additionally, Appellees assert that
the second question raised on appeal deals with discovery issues not
addressed by an order of the trial court. However, as we are able to identify
the issues raised by BNY Mellon, and the second question apparently
attempts to raise issues of material fact, we deny the motion to quash and
address the issues on the merits in this memorandum.
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1. Whether the trial court erred in granting [Appellees’]
unverified Motion for Judgment on the Pleadings, by assuming
facts not in evidence and dismissing breach of contract counts
as barred by the statute of limitations and preventing [BNY
Mellon] from conducting any discovery on relevant issues of
fact including [Appellees’] failure to produce the closing file
from 2004.
2. Whether the trial court erred, in dismissing [BNY Mellon’s
complaint, thereby denying[ BNY Mellon] an opportunity to
explore unresolved issues of fact[,] which include the role of
[Appellees] and [an] employee in the closing of the property
in 2004[,] the responsibility of [Appellees] to record the
mortgage[,] the unresolved issue of where and whether the
closing took place at Commonwealth[’s] or Fidelity’s office,
the extent to which [Appellees] actually participated in the
closing, and the defalcation of the mortgage money by
[Appellees’] own employee.
Brief for Appellant, at 9.
Our review of a trial court’s decision to grant a motion for judgment on
the pleadings
is limited to determining whether the trial court committed an
error of law or whether there were facts presented which
warrant a jury trial. In conducting this review, we look only to
the pleadings and any documents properly attached thereto.
“Judgment on the pleadings is proper only where the pleadings
evidence that there are no material facts in dispute such that a
trial by jury would be unnecessary.”
Maryland Cas. Co. v. Odyssey Contracting Corp., 894 A.2d 750, 753
(Pa. Super. 2006) (quoting Travelers Cas. & Sur. Co. v. Castegnaro, 772
A.2d 456, 459 (Pa. 2001)). Further,
[w]e must accept as true all well[-]pleaded statements of fact of
the party against whom the motion is granted and consider
against him only those facts that he specifically admits. We will
affirm the grant of such a motion only when the moving party’s
right to succeed is certain and the case is so free from doubt
that the trial would clearly be a fruitless exercise.
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Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003)
In its first issue, BNY Mellon asserts that the trial court assumed facts
not in evidence. However, in the argument section of its brief, BNY Mellon’s
sole assertion in support of this claim is that the court “misapprehended a
critical fact . . . in holding that [BNY Mellon] failed to complete a condition
precedent necessary for the issuance of title insurance. The satisfaction of
the mortgage as a condition precedent was the obligation of
[Appellees].” Brief for Appellant, at 14 (emphasis in original). This
argument is without merit.
By the terms of the Commitment, Commonwealth Land was obligated
to issue a title insurance policy only if certain conditions precedent were
met, including the discharge of the Wolper Mortgage. Accordingly, as BNY
Mellon averred, and the trial court accepted as true, when the Wolper
Mortgage was not discharged because Attorney Marchewka failed to advance
the necessary funds, a title insurance policy was not issued. Thus, the title
insurance policy, the would-be contract at issue in this matter, never came
into being. Therefore, the trial court correctly determined that BNY Mellon’s
contract and bad faith claims could not stand as a matter of law. Minnich,
supra.
BNY Mellon also argues in its first issue that the trial court erred by
applying a two-year statute of limitations to its contract claims. Indeed, the
trial court applied a two-year statute of limitations in dismissing BNY
Mellon’s negligence and respondeat superior claims, since BNY Mellon was
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put on notice that a title insurance policy had not been issued on August 23,
2010, and did not initiate the instant action until 2014. However, as
discussed above, BNY Mellon’s contract claims were properly dismissed on
grounds not involving the statute of limitations. It appears that BNY Mellon
has conflated the court’s treatment of its contract and tort claims, and as
BNY Mellon has cited no authority contrary to the court’s ruling, we discern
no error.
Finally, BNY Mellon argues that it did not have an opportunity to
explore factual issues and obtain discovery and information regarding:
The closing file[,] including all documents relating to the
mortgages that were recorded without receipt of funds;
The file of [Appellees’] approved agent employee
[Attorney] Marchewka;
Information on where the closing took place;
Information on why the mortgages were recorded
[despite] the fact that the lender was not paid;
The criminal records of [Attorney] Marchewka;
Why [Appellees] did not tender a policy;
Why [Appellees] did not notify [Gateway] of the defalcated
funds until 2010.
Brief for Appellant, at 19.
Although BNY Mellon lists several areas of factual uncertainty, none of
the issues raised either changes the fact that the condition of removing the
Wolper Mortgage was not met or alters the applicability of the statute of
limitations to BNY Mellon’s negligence and respondeat superior claims.
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Indeed, BNY Mellon makes no attempt to explain how the factual issues
raised would be material to or would alter the determination made by the
court below. Accordingly, a trial would be unnecessary because the material
facts remain undisputed. Maryland Cas. Co., supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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