U.S. Bank Trust, N.A. v. Solomon, M. ( 2021 )

J-S45016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK TRUST, N.A., AS TRUSTEE : IN THE SUPERIOR COURT OF
FOR LSF9 PARTICIPATION TRUST : PENNSYLVANIA
:
:
v. :
:
:
MICAH SOLOMON AND OCCUPANTS :
: No. 824 EDA 2020
Appellants :
Appeal from the Order Entered January 28, 2020,
in the Court of Common Pleas of Montgomery County,
Civil Division at No(s): No. 2019-18944.
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 10, 2021
In this ejectment action, Micah Solomon appeals, pro se, from the order
granting summary judgment and a writ of possession to U.S. Bank Trust, N.A.,
for the townhouse where he and his family live. We vacate the judgment in
favor of the Bank and dismiss this case for lack of subject-matter jurisdiction,
without prejudice for the Bank to refile this suit with all the indispensable
defendants joined as named parties.
Mr. Solomon and his family occupy a townhouse in a Montgomery
County gated-community, known as Breyer Woods. The Solomons have the
keys to the premises, a code to open the communal gate, and access to the
property’s mailbox. In July of 2019, U.S. Bank Trust, N.A., filed this action to
eject Mr. Solomon and all other unnamed “Occupants” from the property. The
sheriff served only Mr. Solomon.
J-S45016-20
To support its claims of ownership and right to remove the Solomons,
the Bank produced an August 21, 2017 deed granting it whatever interest in
the property Bayview Loan Service, Inc. once possessed. According to the
Bank, Bayview Loan acquired title at a sheriff’s sale following a foreclosure.
See Bank’s Brief at 5 (citing Bayview Loan Servicing, LLC v. Richardson,
Civ. Doc. No. 2012-13958 (C.P. Montgomery 2016)). In September of 2017,
the Bank recorded its quitclaim deed from Bayview.
In Mr. Solomon’s responsive pleading, entitled “Answer to Plaintiff’s
Complaint, Preliminary Objections, and New Matter,” he admitted to living in
the townhouse with other, unidentified members of his family. He then alleged
a third-party, Pegasus General Contractors Inc., transferred title to him by a
“Fee Simple Deed.” Solomon’s Answer at 2. According to Mr. Solomon, he
had no dealings with the Bank. He “dealt strictly with [Pegasus], who
presented [him] with keys, an agreement for possession, occupancy, and
directions to change the utilities [to his] name, and further authorized [his]
immediate family to occupy said premise.” Id. Mr. Solomon claims Pegasus
also gave him “a digital code for entrance to the front gate and mailbox.” Id.
In that pleading, Mr. Solomon also raised preliminary objections to the
court’s personal and subject-matter jurisdiction. See Solomon’s Answer at 3.
One of those preliminary objections asserted the trial court “may not exercise
jurisdiction over the objection of a party [under Pennsylvania Rule of Civil
Procedure] 1028(5), for lack of capacity to sue, non-joinder of a necessary
party . . . .” Id. He claimed the Bank made no “mention of a very important
-2-
J-S45016-20
and necessary party, [i.e.,] Pegasus General Contractors Inc., who[se]
involvement in this case is so intricate to the outcome of the case, it would be
an injustice to not include the party.” Id.
In New Matter, Mr. Solomon averred the Bank signed a sales agreement
for the property with Pegasus. He ultimately claimed the right to occupy the
townhouse by virtue of the Bank’s sale to Pegasus.1 But he attached neither
a deed nor a sales agreement to his Answer and New Matter to prove the
alleged transfer from the Bank to Pegasus. Mr. Solomon stated that the local
police seized his deed to the townhouse during a search of the property. See
id. at 2.
The Bank filed a Reply to the New Matter. It “admitted that there was
failure of consideration between [the Bank] and Pegasus General Contractors,
Inc., because the checks tendered by Pegasus General Contractors, Inc. were
returned by the issuing banks.” Bank’s Reply to New Matter at 4. Because
Pegasus’s checks bounced, the Bank claimed it “remains the owner of the
property and is entitled to immediate possession.” Id.
The case then took several strange turns. First, the trial court never
entered an order ruling upon Mr. Solomon’s preliminary objections, including
those challenging its jurisdiction over the subject matter.
Also, a docket entry following the Reply to New Matter, for September
27, 2019, was listed as a “Correction: [Filing #] 5 was voided from the Docket
____________________________________________
1Mr. Solomon raised other defenses irrelevant here, and he also alleged Civil
Rights Violations by the local police. See Solomon’s Answer at 4-6.
-3-
J-S45016-20
because the Defendants are not a party to the action.” Prothonotary’s Docket
Entry Seq. #6. Apparently, the former Prothonotary of Montgomery County
struck this case’s fifth filing from the record.2 Below the Docket Entries there
is a “Voided Docket.” There, the prothonotary listed a September 27, 2019
entry of appearance by Michelle Jackson as “addl defts not parties to case.”
Voided Docket Entry #1.
Despite Mr. Solomon’s preliminary objections still being outstanding, the
Bank filed a Motion for Summary Judgment on December 10, 2019. At the
time, Mr. Solomon was incarcerated in the Montgomery County jail, but the
record does not reflect why he was imprisoned.3 He therefore mailed a motion
to amend his pleadings and to request more time to respond to the Motion for
Summary Judgment. The prothonotary’s filing clerk received Mr. Solomon’s
____________________________________________
2The current Prothonotary of Montgomery County, Noah Marlier, Esquire, took
office on January 8, 2020. Thus, these procedural anomalies in no way reflect
upon him.
3 See Exhibit “A” of Solomon’s Reformatted Motion (Envelope from the Office
of the Prothonotary, post-marked 1/7/2020, to Mr. Solomon at “MCCF” — i.e.,
the Montgomery County Correctional Facility). The prothonotary’s envelope
to Mr. Solomon also listed his address as the Montgomery County Correctional
Facility:
60 Eagleville Road
Eagleville, PA 19403
County of Montgomery, https://www.montcopa.org/496/Correctional-Facility
(last visited November 3, 2020).
-4-
J-S45016-20
mailed motion within 30 days of the Motion for Summary Judgment.4
However, she declared his motion void on January 6, 2020. See Voided
Docket Entry #2.
The filing clerk wrote, “filings cannot be accepted in the form of a letter,
all filings must be in legal format[.]” Id.; See also Exhibit “A” of Solomon’s
Reformatted Motion (Letter from prothonotary to Mr. Solomon, declaring that
“flings cannot be accepted in the form a letter, all filings must be in legal
format[.] Forms & Procedures can be found @www.montcopa.org/prothy[.]”)
The filing clerk’s rejection letter cited no rule of procedure, no administrative
order of court, and no precedential authority.
Upon receiving the rejection letter, Mr. Solomon redrafted his motion to
conform to the prothonotary’s stylistic mandates and mailed his reformatted
motion to the courthouse.5 The prothonotary docketed this motion on January
27, 2020. The next day, the prothonotary issued a rule for the Bank to answer
Mr. Solomon’s reformatted motion to amend his pleadings and for more time
to respond to the summary-judgment motion.6 The trial court simultaneously
____________________________________________
4 Mr. Solomon relates in his appellate brief that his wife re-mailed the motion
for summary judgment to him in the county jail. Also, the record does not
reflect on what date the prothonotary received Mr. Solomon’s “voided” motion,
but the filing clerk noted its existence on the “Voided Docket” on January 6,
2020, which was 26 days after the Bank moved for summary judgment on
December 11, 2020. Thus, the prothonotary received the “voided” motion
within 30 days of the Motion for Summary Judgment.
5 The date of that mailing does not appear in the record.
6The record does not indicate how the prothonotary had the authority to issue
a Rule to Show Cause.
-5-
J-S45016-20
entered an order granting summary judgment to the Bank, partially because
it believed that Mr. Solomon had not replied to the Bank’s Motion for Summary
Judgment within 30 days.
A few weeks later, the Bank answered Mr. Solomon’s motion. It argued
he only had 30 days from the date that the Bank sought summary judgment
to respond — i.e., until January 10, 2020 — and that his reformatted motion
was untimely. The Bank admitted it “received a copy of a letter addressed to
the [trial court] requesting an extension of time to respond to the Motion for
Summary Judgment.” Bank’s Response to the Reformatted Motion at 2. But
the Bank told the trial court, “This ‘letter motion’ does not appear on the
docket, and it is unclear if it was ‘filed.’” Id. It then accused Mr. Solomon of
delaying 16 days “after learning his ‘letter motion’ was rejected to file the
instant motion on January 27, 2020.” Id.
The Bank asked the trial court to deny Mr. Solomon’s request for more
time as moot, because the court had granted summary judgment. Four days
later, before the trial court could rule on Mr. Solomon’s reformatted motion or
the Bank’s response, the Bank had the prothonotary enter judgment in its
favor. The prothonotary also issued a writ of possession to the Bank.
Mr. Solomon then filed this timely appeal.
The following week, the trial court ordered him to submit a Pa.R.A.P.
1925(b) Statement. He complied. That court also entered an order denying
Mr. Solomon’s reformatted motion. The court opined that “it no longer [had]
jurisdiction to rule on [that] motion, because it raises issues related to [the
-6-
J-S45016-20
Bank’s] Motion for Summary Judgment, which was already granted . . . and
which is currently pending appeal.” Trial Court Order, 3/6/2020, at 1 n.1
(citing Pa.R.A.P. 1701(b)). The trial court then filed its 1925(a) Opinion.
Mr. Solomon raises five issues on appeal. They are as follows:
1. Did the trial court have jurisdiction to entertain the
action . . . ?
2. Did the trial court abuse its discretion and/or commit
a clear error of law by granting [the Bank’s] Motion
for Summary Judgment, while [Mr. Solomon’s] Motion
to Amend His Pleadings and for an Enlargement of
Time to File a Response was docketed and Rule to
Show Cause had been docketed . . . ?”
3. Did the Prothonotary’s Office and trial court deny a
prisoner meaningful access to the court and due
process of law by rejecting [Mr. Solomon’s] letter
motion asking the court’s leave to amend his
pleadings and for an enlargement of time to file an
answer to [the Bank’s] Motion for Summary Judgment
and by disregarding [Mr. Solomon’s] pleadings and
Reformatted Motion . . . ?
4. Did the trial court abuse its discretion and commit
error of law by granting [the] Motion for Summary
Judgment, as a matter of law . . . ?
5. Did the trial court and [the Bank] violate the service
requirements of the Pa. Rules of Civil Procedure by
continuing to serve [Mr. Solomon] at [his] home
address, when it was a matter of public record that
[he] was in the custody of the Commonwealth of
Pennsylvania?
Solomon’s Brief at 5-6.
We address only the first issue, because it renders all the others moot.
Mr. Solomon asserts that the trial court lacked subject-matter jurisdiction,
-7-
J-S45016-20
because Pegasus General Contractors, Inc. is an indispensable party. We
disagree with that assertion; nevertheless, we conclude that the Bank failed
to join all of the indispensable parties. Thus, the trial court should have
sustained Mr. Solomon’s preliminary objection to subject-matter jurisdiction
and dismissed the Bank’s complaint without prejudice.
Mr. Solomon claims the Bank failed to perfect the trial court’s subject-
matter jurisdiction over this case. See Solomon’s Brief at 11-12. Because he
thinks the Bank sold its title for the townhouse to Pegasus, Mr. Solomon
contends the grant of summary judgment is “an attempt to emasculate
Pegasus General Contractors, Inc. and its owners of their right to notice and
opportunity to be heard before the judicial power of the Commonwealth is
used to take their property.” Id. at 16.
The trial court acknowledged Mr. Solomon’s argument that the action is
precluded due to failure to join a necessary party. However, it did not address
that issue in its 1925(a) Opinion.
Our “standard of review in determining whether a court has subject-
matter jurisdiction is de novo, and the scope of review is plenary.”
Commonwealth, Office of Atty. Gen. ex rel. Corbett v. Locust Twp., 968
A.2d 1263, 1269 (Pa. 2009). Notably, “lack of subject-matter jurisdiction is
a non-waivable issue, which may be raised by the parties at any stage of the
proceedings and can be raised by the appellate courts sua sponte.” Weir v.
Weir, 631 A.2d 650, 653 (Pa. Super. 1993) (citation omitted).
-8-
J-S45016-20
“Persons having only a joint interest in the subject matter of an action
must be joined on the same side as plaintiffs or defendants.” Pennsylvania
Rule of Civil Procedure 2227(a). If such a person “refuses to join, he or she
shall, in a proper case, be made a defendant or an involuntary plaintiff when
the substantive law permits such involuntary joinder.” Pa.R.C.P. 2227(b).
Thus, “absence of an indispensable party goes absolutely to the court’s
jurisdiction. If an indispensable party is not joined, a court is without
jurisdiction to decide the matter . . . the failure to join an indispensable party
cannot be waived.” Hart v. O’Malley, 647 A.2d 542, 549 (Pa. Super. 1994)
(citations omitted).
This is an ejectment action. As such the only issue for the trial court to
resolve was whether Mr. Solomon and the other occupants of the townhouse
were lawfully occupying it. The Supreme Court of Pennsylvania has held that
“the only necessary or indispensable party to an ejectment action is the person
in actual possession of the land . . . .” Bannard v. New York State Nat.
Gas Corp., 172 A.2d 306, 310 (Pa. 1961). If the person in possession has a
lease for the premise, “it is the tenant, not the landlord, who constitutes the
only necessary or indispensable party.” Id.Unlike an action to quiet title, where anyone with an ownership interest
would be in jeopardy of losing her interest in the res, a person who is not in
possession has nothing at risk in an ejectment action. See, e.g., Hartzfeld
v. Green Glen Corp., 552 A.2d 306, 310 (Pa. Super. 1989) (stating that, in
a quite title action, “all parties who claimed title to the property at issue must
-9-
J-S45016-20
be joined as indispensable parties.”) If the Bank had sought quiet title, then
Pegasus might have an interest in the lawsuit. But this is not a quiet-title
action, and Mr. Solomon makes no assertion that Pegasus is in actual
possession of the property. Nothing of record indicates that Pegasus occupies
the townhouse. Thus, Pegasus is not indispensable to the Bank’s ejectment
action.
On the other hand, the unserved, unnamed members of Mr. Solomon’s
household are indispensable parties to this proceeding. Mr. Solomon pleaded
in his Answer that Pegasus gave not only him, but also his “immediate family
permission to occupy said premise.” Solomon’s Answer at 1. Moreover, the
Bank mailed its Motion for Summary Judgment to Mr. Solomon’s home
address while he was in jail. Mr. Solomon’s wife then “re-mailed the [Bank’s]
motion to [Mr. Solomon] at the prison.” Solomon’s Brief at 7. Thus, she
remained in actual occupancy of the property, even though the bank did not
name her as a defendant in this action. The same would be true of any other
members of the Solomon family residing in the townhouse. Indeed, the Bank
alleged that the other “Occupants” of the townhouse are “Defendant[s]” in
this action. 7 Bank’s Complaint at 1.
Any unnamed persons occupying the townhouse risk removal from the
property if the Sheriff of Montgomery County executes the writ of possession
____________________________________________
7 Pennsylvania Rule of Civil Procedure 2005 addresses the procedure for filing
suit against unknown defendants. The Bank did not follow that procedure in
this case.
- 10 -
J-S45016-20
against “Micah Solomon and occupants,” even though the Bank failed to join
those other individuals as parties and serve them. This interest renders the
additional occupants indispensable, individual defendants, and their absence
from this ejectment case is fatal to the trial court’s subject-matter jurisdiction.
To secure subject-matter jurisdiction the Bank needed to name and join
all adult members of Mr. Solomon’s family who live in the townhouse with him
as additional defendants, because they had a “joint interest in the subject
matter of an action.” Pa.R.C.P. 2227(a). Their interests are identical to Mr.
Solomon’s interest, i.e., remaining in the townhouse. The Bank did not
specifically name these other “Occupants” as defendants in its complaint;
therefore, the trial court lacked subject-matter jurisdiction.
We vacate the order granting summary judgment to the Bank and the
writ of possession. Mr. Solomon’s preliminary objection to the subject-matter
of the court of common pleas based upon the non-joinder of indispensable
parties is sustained.
Complaint dismissed without prejudice for the Bank to refile this lawsuit
against all the occupants of the townhouse by name.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2021
- 11 -