author: NANO VIC, P.J.,

text:
    Two River Community Bank v. Fox Funding PA, LLC

      C.P. of Carbon County,
    No. 09-0006

      Scott M. Rothman, for plaintiff.

      Anthony Roberti, for respondent Melo Enterprises, LLC
    September 10, 2013
   NANO VIC, P.J.,

Melo Enterprises, LLC (“Melo”) has appealed two orders entered by us on July 9,2013: one setting aside a sheriff’s sale which occurred on November 6, 2009, the other denying Melo’s request to satisfy the underlying judgment upon which the sale was based.

This opinion is filed in accordance with Pa.R.A.P. 1925(a).

PROCEDURAL AND FACTUAL BACKGROUND

This is a mortgage foreclosure action. The mortgage foreclosed upon (the “bank mortgage”) was executed by Fox Funding PA, LLC (“mortgagor”), a Pennsylvania limited liability company, on October 21, 2005, in favor of The Town Bank (“bank”), which later merged with Two River Community Bank. Upon default in payment of the indebtedness secured by the mortgage, an action in mortgage foreclosure was commenced by bank against mortgagor on January 2, 2009. Pursuant to Pa.R.C.P. 2352(a), Two River Community Bank, as successor by merger to The Town Bank, was substituted as plaintiff on April 13, 2009.

On August 31,2009, bank’s motion for judgment on the pleadings was granted and a judgment in rem was entered in favor of bank and against mortgagor in the amount of $1,126,126.55, plus interest, costs of suit, and reasonable attorney fees in an amount to be determined by the court. Upon praecipe, a writ of execution to satisfy this judgment was issued on September 10, 2009, against mortgagor with respect to the property listed as the collateral in the bank mortgage (the “mortgaged property”). A sheriff’s sale of this property was held on November 6, 2009. The purchaser was 1400 Market Street, LLC, to whose use bank’s judgment, and its rights under the bank mortgage and underlying note, were assigned immediately prior to the sheriff’s sale. On November 30,2009, a sheriff’s deed for the mortgaged property issued to 1400 Market Street and was duly recorded in the Carbon County Recorder of Deeds Office on December 7, 2009, in Carbon County Document Book 1810, page 652.

It is undisputed that mortgagor never held title to or an ownership interest in the mortgaged property, either at the time the bank mortgage was executed or later. Instead, the real owner of the property was Fox Funding, LLC (“owner”), a New Jersey limited liability company, separate and distinct from mortgagor, although both are allegedly owned or controlled by the same person, James P. Harrison, who is also the managing member for both. In separate proceedings docketed in this court at No. 12-0788, 1400 Market Street seeks to rescind and reform the bank mortgage and the note it secures, both executed by Mr. Harrison as the managing member of mortgagor at a settlement held on October 21,2005, to reflect the averred true and intended borrower, owner, to whom title to the mortgaged property was transferred at the same time.

At the settlement held on October 21, 2005, two deeds conveying title to the mortgaged property were delivered to owner: one from Harry, Catherine, John, and Linda Roscoe for thirty-six acres (the “Roscoe parcels”) and one from Dennis and Elsie Waselus for one hundred thirty-two acres (the “Waselus parcels”). As part of the purchase price for their property, the Waseluses took back a mortgage from owner in the face amount of $372,000.00. This mortgage (the “Waselus mortgage”), which correctly identified owner as the borrower, and was executed by Mr. Harrison in his capacity as the managing member of owner, expressly stated that it was

UNDER AND SUBJECT, in both lien and payment, to a construction and purchase loan mortgage to secure the payment of the principle sum of ONE MILLION SEVENTY-FIVE THOUSAND AND 00/100 ($1,075,000.00) DOLLARS given by [Owner] to Town Bank dated October 21, 2005, and intended to be recorded forthwith.

Nevertheless, because the bank mortgage named and was executed by mortgagor, as the mortgagor therein, rather than by owner, to whom title to both the Roscoe and Waselus parcels (the mortgaged premises described in the bank mortgage) had been conveyed, the mortgage was in fact executed by a party which had no record or real interest in the mortgaged premises.

On November 8, 2010, Melo purchased the Waselus mortgage for $1,000.00. At the time, the unpaid principal balance owed was in excess of $360,000.00. Not only did Melo know at the time of purchase that the Waselus mortgage was intended to be a second mortgage to the bank’s first mortgage in the amount of $1,075,000.00, Melo also knew that the title 1400 Market Street acquired to the mortgaged premises by virtue of the November 30, 2009, sheriff’s deed was subject to challenge since the bank mortgage was not executed by the true property owner.

On December 3,2010, Melo commenced a foreclosure action against owner docketed to No. 10-3538 in this court seeking to foreclose on the Waselus mortgage. 1400 Market Street was permitted to intervene. In response to 1400 Market Street’s contention that the Waselus mortgage was discharged in the foreclosure proceedings on the bank mortgage, Melo argued that mortgagor, as a stranger to title, had neither the power nor the authority to grant a mortgage on the Waselus parcels, and that the sheriff’s deed which issued upon execution could convey no better title to this property than that held by mortgagor. We accepted Melo’s argument and held that the Waselus mortgage was not extinguished by the sheriff’s sale, but remained as a valid, enforceable lien. See Melo Enterprises v. Fox Funding, 18 Carbon Co.L.J. 595 (memorandum opinion of February 15, 2012).

On February 28, 2013, Melo filed its petition in these proceedings to have bank’s August 31, 2009, foreclosure judgment marked satisfied under the Deficiency Judgment Act, 42 Pa.C.S.A. §8103. On March 8, 2013, bank filed its petition seeking to set aside the November 6, 2009, sheriff’s sale. By order dated July 9,2013, we set aside the sheriff’s sale held on November 6, 2009, and vacated the in rem judgment taken on August 31, 2009. In a separate order of the same date, we also denied Melo’s petition to mark the judgment satisfied. Both orders are the subject of Melo’s appeal taken on August 7, 2013.

DISCUSSION

In resolving both appeals, we believe the controlling question is whether the real owner of property is an indispensable party to a mortgage foreclosure proceeding. An action in mortgage foreclosure is strictly an in rem proceeding based on the mortgage. Newtown Village Partnership v. Kimmel, 621 A.2d 1036, 1037 (Pa. Super. 1993). In consequence, the Pennsylvania Rules of Civil Procedure require the real owner of property, as well as the mortgagor — unless the plaintiff releases such person from liability for the debt secured by the mortgage — be named as defendants. Pa.R.C.P. No. 1144.

An indispensable party is one whose rights are so connected with the claims of the litigants that no decree can be made without impairing those rights. Campanaro v. Pennsylvania Elec. Co., 656 A.2d 491, 493 (Pa. Super. 1995) (quoting Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988)). “Unless all indispensable parties are made parties to an action, a court is powerless to grant relief. Thus, the absence of such a party goes absolutely to the court’s jurisdiction.” Id. “The absence of an indispensable party renders any decree or order in the matter void for lack of jurisdiction.” Hubert v. Greenwald, 743 A.2d 977, 980 (Pa. Super. 1999).

As a matter of law, a real property owner cannot be deprived of his property in an action of mortgage foreclosure in which he is not a party. Commercial Banking Corp. v. Culp, 443 A.2d 1154, 1156 (Pa. Super. 1982). As the real owner of the property subject to this mortgage foreclosure, owner (Fox Funding LLC) was a necessary and indispensable party to this action. Biernacki v. Redevelopment Authority of Wilkes-Barre, 379 A.2d 1366 (Pa. Cmwlth. 1977) (owner of real estate is an indispensable party to proceedings seeking transfer of title to the property to another); Hart v. O’Malley, 647 A.2d 542, 549 (Pa. Super. 1994) (“Appellate courts have consistently held that property owners are indispensable parties in lawsuits concerning the owners’ property rights.”). Without owner’s joinder, no relief was possible since an action in mortgage foreclosure is in rem and binds only the mortgaged property. In consequence, bank’s failure to name owner as a defendant, deprived this court of jurisdiction to act vis-a-vis the mortgaged premises and renders the judgment entered on August 31, 2009, a legal nullity. This error was compounded when execution was attempted on the judgment.

In our February 15, 2012, memorandum opinion, we wrote:

In its simplest terms, the Bank mortgage was not executed by either the real or record owner of the property. Further, the in rem judgment which the Bank sought to obtain in its mortgage foreclosure action against Fox Funding PA, LLC was against an entity which never held an interest in the property. It necessarily follows that the sheriff’s deed which issued upon execution on this judgment and which purported to convey such title in the property as was held by Fox Funding PA, LLC to Buyer, in reality conveyed nothing. A sheriff’s deed can convey no better title than that held by the judgment debtor. Tonge v. Radford, 156 A. 814, 815 (Pa. Super. 1931) (“A purchaser of land at sheriff’s sale buys at his own risk and acquires only the interest which the defendant in the execution had, and no more.”) (construing Weidler v. Farmer’s Bank of Lancaster, 11 Serg. & Rawle 134 (Pa. 1823)).

Melo Enterprises v. Fox Funding, 18 Carbon Co.L.J. 595, 599 (2012). This is equally relevant to the present discussion.

Because the judgment upon which the sheriff’s execution emanated was a nullity and because the sheriff was without authority to convey any interest in real estate in an in rem proceeding in which the defendant/debtor never owned or held an interest, our order setting aside the sheriff’s sale and vacating the in rem judgment was appropriate. Mortgage Electronic Registration Systems, Inc. v. Ralich, 982 A.2d 77, 80 (Pa. Super. 2009) (“A sheriff’s sale may be set aside after delivery of the sheriff’s deed based on fraud and lack of authority to make the sale.”); see also Workingmen’s Sav. and Loan Ass’n v. Kestner, 652 A.2d 327, 328 (Pa. Super. 1994) (“After delivery of a sheriff’s deed to a purchaser, the only attacks possible on the sheriff’s sale are those based on fraud which vitiates the transaction or a lack of authority to make the sale.”).

Our order denying Melo’s petition to mark the judgment satisfied is a necessary corollary of the foregoing. Having determined that this court was without jurisdiction to act in a mortgage foreclosure action in which the real owner of the property was not joined, that the judgment entered in that action was void ab initio, and that the sheriff’s deed which thereafter issued conveyed nothing, to argue, as Melo does, that the judgment should be satisfied, defies logic. How legally can a judgment be satisfied which never validly existed and which was never paid?

To the extent Melo relies upon the Deficiency Judgment Act in requesting satisfaction, Melo’s reliance is misplaced. That Act conditions the filing of a petition for a deficiency judgment, as well as a petition to satisfy a judgment after execution thereon, upon the sale of the real property executed upon, either directly or indirectly, to the judgment creditor. 42 Pa.C.S.A. §8103(a), (d). Here, as already stated, neither bank nor 1400 Market Street acquired anything in the sheriff’s sale held on November 6, 2009, much less any title or ownership interest in the property being foreclosed upon. Under these circumstances, where no valid in rem judgment existed and nothing was conveyed upon execution, the Deficiency Judgment Act has no applicability. To the extent Melo argues bank’s petition to set aside the sheriff’s sale is barred by the six-month statute of limitations applicable to an action or proceeding to set aside a judicial sale of property, 42 Pa.C.S.A. §5522(b) (5), the issue has been waived. This issue was never raised by Melo as a defense to bank’s petition to set aside the sheriff’s sale, nor was it raised at the argument held on July 9, 2013, or at any time prior to the entry of our orders dated July 9, 2013. Moreover, and perhaps more importantly, it is intellectually dishonest to argue that a legal proceeding which is void at its inception for lack of subject matter jurisdiction can somehow be magically transformed from one having no effect to an effect which is decisive simply by the passage of time and the failure to make an earlier challenge to its validity. Biernacki, 379 at 1368. (“No court may grant relief in the absence of an indispensable party.”). Perhaps the easier answer, is to simply state that because no valid judicial sale of property occurred on November 6, 2009, the period of limitations provided in 42 Pa.C.S.A. §5522(b)(5) is inapplicable to these proceedings.

CONCLUSION

It is often said that bad facts make bad law. Equally true is that unusual facts often make the application of general principles of law flawed. In this case, what simple common sense and fairness dictate has been unduly complicated by a multitude of errors, beginning with the preparation and execution of the bank mortgage, and exacerbated by the opportunistic efforts of Melo to take advantage of what appears, at its most basic level, to be a scrivener’s error. In the end, we believe the rulings we have made comport with the law and fairly adjust the rights of the parties.

      . Because Two River Community Bank’s interest in the mortgage is the same as that previously held by The Town Bank, for ease of reference the term bank as used in this opinion also includes The Town Bank’s successor, Two River Community Bank.

      . This was in accordance with a $1,300,000.00 loan commitment from bank to owner dated October 13, 2005, pursuant to which owner was to acquire title to the Roscoe and Waselus parcels which in turn were to be used by owner as collateral for a first lien mortgage to bank to secure payment of the loan. Between the date of execution of the loan commitment and the date of closing, it was agreed to break the loan into two separate amounts: $1,075,000.00 to be secured by the first lien mortgage, and $225,000.00 to be secured by a second mortgage existing as a second lien on the Roscoe parcels and a third lien on the Waselus parcels.

      . Joseph Sinisi, whose name appears in the caption of this case, is a junior mortgage holder to whom owner granted a mortgage on or about December 30,2008. Mr. Sinisi’s mortgage describes multiple parcels, in addition to those identified in the bank mortgage, as securing the debt owed to him. The Sinisi mortgage expressly references the bank and Waselus mortgages, and ostensibly constitutes a fourth lien mortgage on the Waselus parcels. See petition to set aside sheriff’s sale, paragraphs 19-22. The existence of the Sinisi mortgage does not affect our analysis of the issues under appeal.

      . In this context, it is worth noting that “[a] petition to set aside a sheriff’s sale invokes the equitable powers of the trial court.” Jefferson Bank v. Newton Associates, 686 A.2d 834, 838 (Pa. Super. 1996). Though bank repeatedly raises whether Melo should be barred by the doctrine of unclean hands from opposing its petition, we found it unnecessary to reach this issue in our resolution of the petition and Melo’s request to have the mortgage judgment marked satisfied.

      . Melo filed one notice of appeal appealing two separate orders. This practice is at best frowned upon, and, at worst, may result in one or more appeals being quashed. Sulkava v. Glaston Finland Oy, 54 A.3d 884, 888 (Pa. Super. 2012); M.R. Mikkilineni v. Amwest Surety Ins. Co., 919 A.2d 306, 311 (Pa. Cmwlth. 2007).

      . To the extent Melo argued the petition to set aside the sheriff’s sale was untimely, it did so on the basis of Pa.R.C.P. No. 3132 which provides:
      Upon petition of any party in interest before delivery of the personal property or of the sheriff’s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances,
      (emphasis added). See Melo’s memorandum of law opposing plaintiff’s petition to set aside sheriff’s sale filed on April 5, 2013. While it is true that the delivery of a sheriff’s deed generally divests the court of the authority to set aside a sheriff’s sale, as noted in the Ralich and Kestner cases cited in the body of this opinion, an exception to this limitation is where the sheriff was without the authority to make the sale.


source: Caselaw Access Project

author: PICCIONE, J.,

license: Public Domain

text:
    McConahy v. McConahy

      C.P. of Lawrence County,
    No. 10679 of 2012, C.A.

      Phillip L. Clark, for plaintiff.

      Bradley G. Olson, Jr., for defendant.
    September 16, 2013
   PICCIONE, J.,

Before the court for disposition is the defendant’s, Ashley L. McConahy (hereinafter, the “defendant”), motion to set aside marital settlement agreement (hereinafter, the “motion”). The defendant and the plaintiff, Sean T. McConahy (hereinafter, the “plaintiff’) were married on July 9,2001, in Florida. During the course of their marriage, the parties had three minor children and resided in Lawrence County, Pennsylvania. Around the end of April 2012, the defendant decided that she desired to terminate her marriage to the plaintiff. (N.T. 4-1-13 pg. 7). On June 4,2012, the plaintiff filed a complaint in divorce, wherein the plaintiff avers that his marriage to the defendant is irretrievably broken. On June 5, 2012, the parties filed a marital settlement agreement that the defendant now contests.

On October 17, 2012, the defendant filed the instant motion to set aside marital settlement agreement (hereinafter, the “motion”), in which the defendant argues that the martial settlement agreement (hereinafter, the “agreement”) should be set aside for the following reasons: (1) the plaintiff did not fully and/or fairly disclose his financial assets; (2) the terms of the agreement are wholly unfair to defendant’s legal interest in the martial property; (3) the defendant signed the agreement as a result of the plaintiff’s continued mental abuse; (4) the agreement is unreasonable; and (5) attorney Michael C. Bonner (hereinafter, “attorney Bonner”) was not acting in a neutral capacity in the drafting and execution of the agreement. Evidentiary hearings on the instant motion were held in this court on January 31, 2013, April 1, 2013 and April 30, 2013. Additionally, each party submitted memoranda of law in support of each party’s respective positions. The court now sets forth a recitation of the testimonies of the witnesses during the evidentiary hearings.

The parties became socially acquainted with attorney Bonner when their children participated in youth activities together. In approximate late April or early May 2012, the parties contacted attorney Bonner and informed him of their intent to seek a divorce. When attorney Bonner met with both the plaintiff and defendant he informed then that he was not representing either party in an adversarial divorce action; rather, he would merely assist them in working through the divorce process. (N.T. 1-29-13 pg. 9). Attorney Bonner met with one or both of the parties on three scheduled meetings, on May 3, 2012, May 9, 2012, and May 24, 2012. Additionally, the parties individually met with attorney Bonner spontaneously, without a scheduled appointment. Attorney Bonner then drafted a proposed marital settlement agreement based upon his meetings with the parties and a spreadsheet prepared by the plaintiff that consisted of compilation of assets. The spreadsheet had columns for the name of the asset, the plaintiff’s proposed distribution of the asset to the defendant, the defendant’s proposed retention of the asset. (N.T. 1-29-13 pgs. 14-16). Attorney Bonner later reviewed the spreadsheet item by item in his office simultaneously with both of the parties. (N.T. 1-29-13 pg. 16).

Attorney Bonner testified that he discussed with the parties a temporary support payment to the defendant until the defendant was able to obtain a job, child support, spousal support, splitting savings accounts, income tax returns, as well as an IRA account. (N.T. 1-29-13 pgs. 22-23). Attorney Bonner testified that he found the defendant to have a “more than adequate” grasp of the marital assets, and she corrected the plaintiff in several instances. (N.T. 1-29-13 pg. 48). The plaintiff and his father owned a farm in the form of a partnership. Mr. Bonner informed the plaintiff and defendant during their discussions that the defendant, specifically, was entitled to have the assets of the farm valued; however, attorney Bonner testified that the parties did not discuss the defendant’s receiving any portion of the farm. Attorney Bonner testified that when one party would begin to ask him questions regarding the terms of the proposed marital settlement agreement, attorney Bonner instructed the parties to obtain counsel.

Attorney Bonner testified that he advised the parties that a martial settlement agreement would be a full and comprehensive agreement and neither party would be entitled to anything outside what is included in that agreement. (N.T. 1-29-13 pg. 43). Moreover, attorney Bonner gave both parties an opportunity to review the agreement prior to meeting with him to execute a final agreement. (N.T. 1-29-13 pg. 46). He sent the agreement via email to the plaintiff alone because the plaintiff allegedly communicated to attorney Bonner that he and the defendant would be discussing it together and the plaintiff would ensure that the defendant received the draft agreement. (N.T. 1-29-13 pg. 51). Additionally, attorney Bonner testified that he received feedback from both parties regarding the terms of the draft agreement. (N.T. 1-29-13 pg. 49).

Attorney Bonner testified that over the course of his meetings with the parties, together and on an individual basis, the defendant never appeared to be distraught; rather, the defendant appeared to be “flippant” or “jovial.” (N.T. 1-29-13 pg. 37). Attorney Bonner testified that the defendant neither confided in him that she was afraid of the plaintiff nor did the defendant appear to him to be afraid of the plaintiff. Moreover, attorney Bonner did not find the plaintiff to be in control of the terms of the agreement during the discussions.

The defendant’s testimony contradicts much of attorney Bonner’s testimony. First, the defendant does not recall meeting with attorney Bonner in May 2012, nor does the defendant recall attorney Bonner’s reviewing the terms of the proposed marital settlement agreement with the parties prior to her signing a final draft. (N.T. 4-1-13 pgs. 9, 20). However, the defendant does recall receiving the proposed martial settlement agreement and noticing changes that were incorporated into the final draft. (N.T. 4-1-13 pg. 34). The defendant also testified that she never spoke to attorney Bonner on the telephone regarding her divorce and that all discussions with attorney Bonner occurred while in the plaintiff’s presence. (N.T. 4-1-13 pgs. 12,17).

The defendant testified that she knew the values of the parties’ bank accounts; however, she did not know the value of the plaintiff’s retirement account at the Ellwood City Credit Union. (N.T. 4-1-13 pgs. 23-25). The defendant was also aware of the value of the parties’ IRA accounts. (N.T. 4-1-13 pg. 32). The defendant discussed the division of the vehicles with the plaintiff while at attorney Bonner’s office. (N.T. 4-1-13 pgs. 26-27). The defendant maintains that she and the plaintiff have not discussed any distribution of personal property. (N.T. 4-1-13 pg. 33). The defendant testified that she asked for personal property and never received those items. (N.T. 4-1-13 pg. 33).

The defendant also testified regarding her employment through McConahy farm (hereinafter, the “farm”). The defendant retained the position of bookkeeper for the farm. (N.T. 4-1-13 pg. 35). Through her employment with the farm, the defendant was primarily responsible for paying bills through one of the two accounts in the farm’s name, preparing quarterly reports for tax purposes, and issuing paychecks to the employees. (N.T. 4-1-13 pg. 34-35). The defendant also delivered documents to the accountant upon request. (N.T. 4-1-13 pg. 37). The defendant testified that she would attempt to answer questions the accountant had. (N.T. 4-1-13 pg. 37). However, the defendant testified that she was unaware of the farm’s inventory or equipment, accounts receivables, accounts payable, but she did receive and view bank statements for both farm accounts. (N.T. 4-1-13 pgs. 38-39). Additionally, the defendant was aware that the farm had completed its payments on a number of the farming equipment. (N.T. 4-1-13 pg. 40). She was aware that the farm utilized a mower and a skid loader upon which the farm was making payments, but the farm was not making payments on other pieces of equipment. Regarding the assets of the farm, the defendant was aware that it encompasses an extensive amount of real estate, approximately 1,000 acres. (N.T. 4-1-13 pg. 42). The defendant also knew that the farm is titled as a partnership, with the plaintiff and his father, Tom McConahy, as the two partners. (N.T. 4-1-13 pg. 42).

The defendant testified that she was present for the negotiations between the plaintiff and his father of the partnership interest that was gifted to the plaintiff. (N.T. 4-1-13 pg. 59). Although the defendant asserts she did not take part in the negotiations of the terms, she would communicate any changes in those terms to the attorney, Robert Clark, Esquire (hereinafter, “attorney Clark”), who handled the agreement. (N.T. 4-1-13 pg. 59). She also transferred paperwork between attorney Clark and the plaintiff when necessary. (N.T. 4-l-13pg. 60). Additionally, pursuant to creating a partnership interest for the plaintiff, Mr. Tom McConahy and the plaintiff obtained an appraisal of the equipment of the farm. (N.T. 4-1-13 pg. 63). The appraiser, Mr. Whiting, visited the farm and appraised the equipment in 2009. (N.T. 4-1-13 pgs. 63, 80). The defendant testified that she was present for the appraisal. (N.T. 4-1-13 pg. 63). The defendant acknowledged that at the time she and the plaintiff approached Mr. Bonner to create a marital settlement agreement, she was aware that the plaintiff held a partnership interest in the farm, and she knew of the asset values provided to Mr. Whiting. (N.T. 4-1-13 pg. 66).

During the course of her employment as the farm’s bookkeeper, the defendant enrolled in a course through The Pennsylvania State University designed for farm bookkeeping. (N.T. 4-1-13 pg. 52). The instructor to the course downloaded spreadsheets and charts of accounts for a dairy business onto her computer. (N.T. 4-1-13 pg. 53). Although the defendant was employed as a bookkeeper for the farm for approximately three years, she never utilized those programs. (N.T. 4-1-13 pg. 53). Additionally, the farm’s bank statements were delivered to the parties’ marital residence. (N.T. 4-1-13 pg. 53). Upon receiving those statements, the defendant opened them, stapled them together, and made annotations on them to ensure checks cleared. (N.T. 4-1-13 pg. 53). The defendant concedes that she had a general knowledge of the farming operation. (N.T. 4-1-13 pg. 55). The defendant also created year-end accounting reports. (N.T. 4-1-13 pg. 56). These reports included, inter alia, the employees, the amount of money spent on supplies, repairs, feed, breeding, and the amount paid in taxes. (N.T. 4-1-13 pg. 56). The defendant also noted deposits and other credits on bank statements. (N.T. 4-1-13 pg. 57).

During the defendant’s employment with the farm, the Farm entered into an oil and gas lease with Shell. (N.T. 4-1 - 13 pg. 44). The farm received approximately $900,000.00 as an up-front royalty. (N.T. 4-1-13 pgs. 44-45). This royalty was payable to the individual partners and included on each partner’s personal income tax returns. (N.T. 4-1-13 pg. 45). With this payment, the partners set up funds with a stockbroker. (N.T. 4-1-13 pg. 45). The defendant asserts that she had no involvement with creating those funds, nor did she know what the values of those funds were. (N.T. 4-1-13 pg. 45). She further asserts that she had no involvement with negotiating the terms of the oil and gas lease; however, she did negotiate whether a well would be placed on the property. (N.T. 4-1-13 pg. 46).

The defendant asserts that she feared the plaintiff. (N.T. 4-1-13 pg. 47). She testified that he was an “intense person,” and she sought treatment for that fear during marriage counseling sessions she and the plaintiff attended. (N.T. 4-1-13 pg. 47). Also, the defendant asserts that the plaintiff requested the defendant sign a marital settlement agreement quickly. (N.T. 4-1-13 pg. 49). She testified that she perceived a sense of urgency in the plaintiff’s tone regarding signing an agreement. (N.T. 4-1-13 pg. 49). However, the defendant testified that she attended the meetings with attorney Bonner by driving her own vehicle alone and knew she was free to leave at any time she wanted. (N.T. 4-1-13 pg. 65). Furthermore, she testified that she knew she was free to take the proposed marital settlement agreement to an independent attorney to review, and nothing stopped her from doing so. (N.T. 4-1-13 pg. 76).

While negotiating a martial settlement agreement, the defendant specifically recalls agreeing to receive a portion of the plaintiff’s pension. (N.T. 4-1-13 pg. 72). Additionally, the defendant testified that she negotiated staying on the plaintiff’s health insurance through his employer. (N.T. 4-1-13 pg. 72). The defendant also testified that she and the plaintiff negotiated when each would claim their children as dependents. (N.T. 4-1-13 pg. 75). The defendant could not recall whether she requested any changes to be made to the proposed marital settlement agreement she received from Mr. Bonner. (N.T. 4-1-13 pg. 74).

The plaintiff’s father, Mr. Thomas McConahy, also testified during the hearing on April 1, 2013. Mr. Thomas McConahy testified that before gifting the plaintiff with a partnership interest in the farm, he arranged for the farm to be appraised. (N.T. 4-1-13 pg. 90). Mr. Thomas McConahy testified that defendant was present during the appraisal and during the discussions regarding the assets of the farm. (N.T.4-1-12 pgs. 90-91). Additionally, Mr. Thomas McConahy testified that attorney Clark drafted a number of proposed partnership agreements. (N.T. 4-1-13 pg. 91). Mr. Thomas McConahy testified that the defendant was actively involved in those negotiations in that she would speak to attorney Clark, make appointments with him and retrieve and drop off documents to attorney Clark’s office. (N.T. 4-1-13 pg. 91). Mr. Thomas McConahy testified that the defendant was privy to all information contained in the partnership agreement but did not dictate the terms of that agreement. (N.T. 4-1-13 pgs. 92, 97).

Mr. Thomas McConahy also testified regarding the defendant’s employment as the farm’s bookkeeper. He testified that she was responsible for the “books” and prepared documents for the accountant, and paid bills. (N.T. 4-1 -13, pgs. 92-94). Mr. Thomas McConahy testified that he would write approximately eighty percent of the checks and the defendant would record them. (N.T. 4-1-13 pg. 98). Additionally, Mr. Thomas McConahy testified that if he questioned the value of any of the farm’s two bank accounts, he would instruct the defendant to call the bank. (N.T. 4-1-13 pg. 94). He testified that she had access to both the farm’s bank accounts and any password that may be necessary to obtain that information. (N.T. 4-1-13 pg. 94).

Mr. Thomas McConahy also testified regarding the oil and gas lease. He testified that he, the plaintiff, the defendant, the Shell representative and his girlfriend were all present for the negotiations. (N.T. 4-1-13 pg. 95). He further testified that the defendant had access to all oil and gas information since it was kept at the marital residence. (N.T. 4-1-13 pg. 95). After receiving the royalty payment pursuant to the oil and gas lease, Mr. Thomas McConahy, the plaintiff, and the defendant met with a stockbroker and their accountant, Ms. Karen McFarland, to discuss potential investments. (N.T. 4-1-13 pgs. 96-97). Mr. Thomas McConahy testified that the defendant was an active participant in these conversations as well. (N.T. 4-1-13 pg. 97).

Attorney Clark testified during the April 30, 2013 hearing. Attorney Clark performed legal work for the plaintiff and his father over a number of years. (N.T.4-30-13 pg. 5). He prepared a partnership agreement for the plaintiff and his father in 2009. (N.T. 4-30-13 pg. 5). Attorney Clark testified that most of his communication was through the defendant as the defendant would contact him, drop off or pick up papers regarding the partnership agreement. (N.T. 4-30-13 pg. 6, 9). Additionally, attorney Clark testified that the defendant would bring certain items to his attention that the partners wanted to be included in the agreement and he had discussions with her to confirm what deeds were being transferred into the partnership. (N.T. 4-30-13 pg.7). Attorney Clark clarified that the defendant did not have any ownership interest in the partnership nor did she negotiate the terms of the partnership with him. (N.T. 4-30-13 pg. 9).

Ms. Karen McFarland (hereinafter, “McFarland”) also testified during the April 30, 2013 hearing. McFarland is a tax preparer who prepared taxes for the plaintiff and the farm. (N.T. 4-30-13 pg. 13). McFarland testified that the defendant would bring a summary of the farm’s expenses so she could prepare a tax return. (N.T. 4-30-13 pg. 14). McFarland testified that she recalled instances when she needed clarification of the expenses and the defendant answered those questions for her or she would obtain the answer from a partner and relay it back to McFarland. (N.T. 4-30-13 pg. 15). McFarland testified that she and the defendant met two to three times per year to prepare the farm’s taxes. (N.T. 4-30-13 pg. 18). During each meeting McFarland and the defendant would discuss the farm’s bank statements and the summary of expenses, which were prepared by the defendant. (N.T. 4-30-13 pgs. 18-20). McFarland testified that based upon her interactions with the defendant, it appeared that the defendant was familiar with the farm’s finances although she did not discuss values of assets with the defendant. (N.T. 4-30-13 pg. 25). Additionally, McFarland prepared the parties’ personal income tax returns. (N.T. 4-30-13 pg. 22). McFarland would primarily deal with the defendant in preparing these returns as well. (N.T. 4-30-13 pg. 22).

Lastly, the plaintiff testified during the April 30, 2013 hearing. The plaintiff testified that the defendant suggested that they use attorney Bonner to draft a marital settlement agreement because they knew him through the children’s affiliation with youth sports. (N.T. 4-30-13 pg. 35). The plaintiff testified that he called attorney Bonner to schedule a meeting with him, and he met with attorney Bonner initially alone in April 2012, then together with the defendant two or three additional times. (N.T. 4-30-13 pg. 36). The plaintiff testified that although attorney Bonner did not participate in establishing the terms of the marital settlement agreement, he did inform the parties, inter alia, that they needed to establish child and spousal support, if any, and to create a comprehensive list of the marital assets. (N.T. 4-30-13 pgs. 36-37). The plaintiff also testified that attorney Bonner informed the parties that they were entitled to obtain independent counsel if they wished. (N.T. 4-30-13 pg. 39). The plaintiff could not recall if the defendant met with attorney Bonner alone, but he testified that the defendant informed him that she had spoken to attorney Bonner on the telephone. (N.T. 4-30-13 pg. 38).

The plaintiff testified that he and the defendant actually negotiated the terms of a marital settlement agreement. (N.T. 4-30-13 pg. 39). The plaintiff recalled that the defendant requested receiving a lesser portion of his pension than she would be entitled to receive by law if she could remain on the plaintiff’s health insurance provided to him through his employment with Lincoln High School in Ellwood City. (N.T. 4-30-13 pg. 39). The plaintiff testified that he agreed to those terms after discussing with his employer whether the defendant could continue to receive health insurance benefits under his heath insurance policy after separation. (N.T. 4-30-13 pg. 86). Additionally, the plaintiff testified that he and the defendant discussed when each would claim their children as dependents. (N.T. 4-30-13 pg. 40). The plaintiff also recalled that the defendant told him that she did not want anything that was tied to the Farm. (N.T. 4-30-13 pg. 100). Moreover, upon separation, the plaintiff testified that he and the defendant agreed to close their joint accounts and split the monies. (N.T. 4-30-13 pg. 42).

The plaintiff testified that he presented values of various items and accounts to the defendant. (N.T. 4-30-13 pg. 50). He testified that he created a spreadsheet that included estimates of the parties’ marital assets and discussed them with the defendant. (N.T. 4-30-13 pg. 50-51). The plaintiff recalled at least three edited spreadsheets that were changed based upon his conversation with the defendant. (N.T. 4-30-13 pg. 67). These spreadsheets did not include any asset of the farm. (N.T. 4-30-13 pg. 69). The plaintiff could not recall if he told the defendant that she would not be entitled to any asset of the farm’s. (N.T. 4-30-13 pg. 69). Further, the plaintiff insisted that he provided the defendant with all information she requested of those assets. (N.T. 4-30-13 pg. 51). The plaintiff testified that the defendant never requested copies of the parties’ bank statements, credit card statement, pension account statement, or IRA holdings. (N.T. 4-30-13 pg. 52). The plaintiff testified that the defendant was the spouse who kept and filed those statements in the marital residence. (N.T. 4-30-13 pg. 55).

The plaintiff also testified regarding personal items located within the marital residence. The plaintiff testified that he was aware of two instances in April 2012 during which the defendant and the plaintiff’s cousin entered the residence while the plaintiff was at work to retrieve any personal items she wanted. (N.T. 4-30-13 pg. 52). The plaintiff testified that she retrieved a number of her personal belongings, a couch, and a television, at that time. (N.T. 4-30-13 pg. 52). The plaintiff also testified that the defendant returned to the residence after the parties’ signed the marital settlement agreement to retrieve additional items. (N.T. 4-30-13 pg. 52).

The plaintiff also testified regarding his and the defendant’s personal finances. The plaintiff testified that the defendant took the responsibility to pay the bills for the family. The plaintiff also testified that account statements for his credit union account were delivered to his mailbox at his employer, except during the summer months when they would be delivered to the marital residence. (N.T. 4-30-13 pg. 43). The plaintiff testified that the defendant never accessed this account on her own, but she was present when the plaintiff withdrew $7,000.00 from that account to purchase a camp site in Andover, Ohio in 2011. (N.T. 4-30-13 pg. 43).

The plaintiff also testified regarding the defendant’s employment with the farm. The plaintiff testified that the defendant was employed as a bookkeeper for the farm. (N.T. 4-30-13 pg. 44). When the defendant began working as the bookkeeper, the farm purchased a computer for her and the defendant enrolled in the a course designed for farming accounting. (N.T. 4-30-13 pg. 45). The defendant was employed as a bookkeeper for the farm for approximately three years and generally performed all duties on her own. (N.T. 4-30-13 pg. 45-46). The plaintiff testified that the defendant generally performed her work on time, but occasionally fell behind and needed the plaintiff’s assistance. (N.T. 4-30-13 pg. 93).

Additionally, the plaintiff testified that the defendant was not present for the initial meeting with attorney Clark to discuss the partnership interest but became involved afterwards. (N.T. 4-30-13 pg. 47). The plaintiff testified that he and his father would review a draft partnership agreement and the defendant was always present and would look over the agreement as well. (N.T. 4-30-13 pg. 47). The plaintiff recalled discussing with the defendant their concerns regarding their children’s future interest in the farm. (N.T. 4-30-13 pg. 48). The plaintiff testified that he and the defendant discussed assigning their children as the only beneficiaries of the farm. (N.T. 4-30-13 pg. 48).

The plaintiff also recalled when he and his father arranged for an appraisal of the farm in connection with creating the partnership interest. (N.T. 4-30-13 pg. 54). The plaintiff testified that he, his father, and the defendant walked around the farm with the appraiser. (N.T. 4-30-13 pg. 54). Immediately thereafter, these parties proceeded into the marital residence to discuss the values of the farm assets. (N.T. 4-30-13 pg. 54). The approximate fair market values of the assets were then recorded. (N.T. 4-30-13 pg. 54). The plaintiff believes that the defendant was the person who recorded those asset values. (N.T. 4-30-13 pg. 54).

Lastly, the plaintiff testified that the defendant was actively involved in negotiating the oil and gas lease. (N.T. 4-30-13 pg. 48). He recalled that the defendant negotiated the distance from the house Shell could place a well upon the property. (N.T. 4-30-13 pg. 49). This oil and gas lease was also not included on any of the spreadsheets the plaintiff created while negotiating a settlement with the defendant. (N.T. 4-30-13 pg. 69). The plaintiff testified that he believed the oil and gas lease and the proceeds therefrom were considered to be farm assets. (N.T. 4-30-13 pgs. 69-70). The plaintiff explained that the monies he and his father received as partners in the farm pursuant to the oil and gas lease were to be included in their personal income taxes because the farm is not an entity according to the law, and any income received therefrom must be claimed by the partners on their personal income tax returns. (N.T. 4-30-13 pg. 75). Some of the proceeds of the oil and gas lease were invested back into the farm; specifically, the partners prepaid items used for feed one year in advance and purchased equipment. (N.T. 4-30-13 pgs. 97-98). The plaintiff testified that the defendant contacted the company to set up the prepayment. (N.T. 4-30-13 pg. 101). After paying off debt, prepaying items, and purchasing equipment, the defendant testified that approximately $200,000.00 remained from the proceeds of the oil and gas lease. (N.T. 4-30-13 pg. 102). It was this amount that the parties used to form the IRA funds. (N.T. 4-30-13 pg. 102).

Pursuant to the Supreme Court of Pennsylvania’s analysis in Simeone v. Simeone, post-nuptial agreements are to be evaluated as any other contract. 581 A.2d 168 (Pa. 1990). “Traditional principles of contract law provide perfectly adequate remedies where contracts are procured through fraud, misrepresentation, or duress.” Id. at 166. Absent a showing of the same, the parties are bound by their agreements. Id. In determining the validity of a postnuptial agreement, it is irrelevant if the terms of the contract are reasonable or the bargain was advantageous to either party. Id. The reasonableness of the terms of the contract is not appropriate for judicial review. One is assumed to understand the terms of the contract into which he is entering and those terms “must be regarded as binding without regard to whether the terms were fully understood by the [party]. Ignorantia non excused" Id.

Additionally, the Supreme Court refused to mandate that a contract is void unless each party consults with an independent legal counsel. The court stated that this “would constitute a paternalistic and unwarranted interference with the parties’ freedom to enter into contracts.” Id. However, the court acknowledged and reaffirmed the long standing principle “that a full and fair disclosure of the financial positions of the parties is required.” Id. at 167. Such disclosure need not be exact, as long as it is “full and fair.” Kaufmann Estate, 171 A.2d 48, 51 n.8 (Pa. 1961). The court stated, “Absent this disclosure, a marital misrepresentation in the inducement for entering a[n agreement] may be asserted.” Simeone, 581 A.2d at 167. “If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. A spouse may attempt to rebut this presumption through an assertion of fraud or misrepresentation; however, such presumption can be rebutted if it is proven by clear and convincing evidence.” Paroly v. Paroly, 876 A.2d 1061, 1066 (Pa. Super. 2005). “[A]n agreement is valid even if it does not contain financial disclosure itself and can be upheld if it merely recites that such disclosure has been made.” Id. Finally, “[w]hether adequate disclosure has been made will depend on the facts and circumstances of individual cases.” Mormello v. Mormello, 682 A.2d 824 (Pa. Super. 1996) (overruled on other grounds).

Furthermore, the Superior Court in Lugg v. Lugg, 64 A.3d 1109 (Pa. Super. 2013) found that “a party [may] waive economic disclosure in terms of a prenuptial agreement, as long as the waiver is voluntary and in writing.” The court continued, that since prenuptial and post-nuptial agreements are to be similarly construed, “full economic disclosure, it is waiveable in a post-nuptial agreement.” Id. at 1112-13. Therefore, if a post-nuptial agreement contains a waiver of economic disclosure, it is valid and enforceable absent a showing of fraud, misrepresentation or duress. Id. at 1113.

First, defendant argues that this court should set aside the agreement because the plaintiff did not fully and/or fairly disclose his financial assets. As stated above, absent a full and fair disclosure of the parties’ financial worth, “a material misrepresentation in the inducement for entering a[n] agreement may be asserted.” Mormello, 682 A.2d at 828. A full and fair disclosure requires that a “reasonable estimate of the worth of the assets must be attempted so that the general financial resources of the parties are not obscured.” Hess, 580 A.2d 357. “If an agreement provides that full disclosure has been made, a presumption of full disclosure arises.” Simeone, 581 A.2d at 167. A party can rebut this presumption by proving fraud, duress, or misrepresentation in the inducement for entering the agreement by clear and convincing evidence. Id.

On the first page, the instant agreement states, “WHEREAS, the parties have been fully advised of their legal rights and obligations and have been fully informed of their respective property holding, income, liabilities and expectancies [.]” Additionally, section eighteen of the agreement is entitled the “Warranty of Disclosure.” This section states the following:

Husband and Wife represent that they have disclosed to each other in full, their respective assets and liabilities, as of the date of separation, that they have been given ample opportunity to identify analyze and value the assets titled in the name of or held for the benefit of the other party and that this Agreement was negotiated and entered into on the basis of those disclosures and their substantial accuracy.

Agreement. § 18. Further, section thirteen of the agreement is entitled “Business Interest.” This section provides the following:

Husband is a partner in McConahy Farm (hereinafter ‘The Farm’). Wife hereby waives, assigns, designates, and transfers any and all rights, title, claim and interests to Husband which she may have, had or shall at anytime have to his business interest in The Farm. Effective with the execution of this Agreement, Husband will be the sole and exclusive owner of his business interest in The Farm and may take action with respect to his business interest as he, in his sole discretion deems appropriate. Husband warrants that Wife has no responsibility with respect to his business interest.

Agreement. Pg. 7. §13. Based upon the language of these above three sections, the agreement clearly provides that full disclosure has been made. Therefore, the court finds that there is a presumption of full disclosure. In order to rebut this presumption, the defendant must make a showing of fraud, duress, or a material misrepresentation by clear and convincing evidence.

In an attempt to rebut the above presumption, the defendant argues that the plaintiff did not disclose to her the value of the farm, equipment, structures, and animals, and crops located therein. The court finds this contention to be contrary to the evidence and testimony presented during the three evidentiary hearings described above. The credible evidence establishes that the defendant was employed as a bookkeeper for the farm from the time the plaintiff acquired the partnership interest in 2009 until the parties’ separation in April 2012.

Through her employment, the defendant had obtained a general knowledge of the daily farming operations. She took a class offered through an extension of The Pennsylvania State University that taught procedures for farming bookkeeping. The defendant also paid bills through one of the two bank accounts the farm utilized and issued pay checks to employees. She opened the farm’s bank statements and annotated them. The defendant prepared year-end statements that accounted for the farm’s expenditures and income. Moreover, the defendant prepared quarterly reports for tax purposes, delivered them to the farm’s accountant two to three times a year and reviewed those statements with the accountant. Further, The defendant possessed the account numbers and passwords for both bank accounts owed by the farm. Upon request, the defendant would obtain balances for both accounts. The defendant had access to the farm’s financial information and accessed that information upon request. Therefore, it is evident by the access afforded to the defendant to this information that she was fully engaged in the financial affairs of the farm such that she appreciated its operations and value.

“Indeed, where a spouse is fully engaged in the financial affairs and is familiar with a business owned by the other spouse, [the court] will uphold an agreement even when it contains neither disclosure nor an affirmation that disclosure was made.” Paroly, 876 A.2d at 1066. In light of the foregoing, the court finds that the Agreement indeed contains an affirmation of disclosure, and the defendant was fully engaged in the financial affairs of the farm. The court finds that the defendant signed the agreement with the full knowledge of the value of the farm, and she waived any interest therein by signing the agreement. Therefore, the defendant is bound by the waiver in section thirteen, “Business Interest,” contained in the agreement.

The defendant also claims that the agreement should be set aside because there was no full and fair disclosure of the parties’ marital assets. Under the facts of this case, the defendant has failed to prove that she was deprived of full and fair disclosure of the marital estate at the time the agreement was executed. The defendant testified that she was aware of the values of the parties’ personal bank accounts. Additionally, attorney Clark and McFarland testified that the defendant was privy to all investment information when the financial advisor established the parties’ IRA accounts. The defendant argues that the availability of financial information is not equivalent to full and fair disclosure thereof. See Ebersole, 713 A.2d at 104-105. Although an accurate statement of the law, the court finds that the defendant not only had access to the parties’ financial information, but she also was fully aware of the values of such assets as she was the party who took the responsibility to pay any bills and receive the financial statements. It is evident that the defendant actually possessed the information of the parties’ assets as attorney Bonner could recall instances in which the defendant corrected the plaintiff regarding the value of certain marital assets. Additionally, both the plaintiff and attorney Clark testified that the plaintiff’s mentality was that of a “simple farmer” and the defendant was the spouse who was responsible for the parties’ finances. This court finds this testimony to be more credible than the defendant’s assertion of ignorance.

The only asset of which the defendant did not fully know the value was the plaintiff’s retirement benefits account with the Ellwood City Federal Credit Union; however, she testified that she knew the existence of the account, and she received statements from that account during the summer months. Moreover, the defendant was responsible for paying the parties’ bills during the course of their marriage. “Although...a full and fair disclosure does not require disclosure of the exact amount of property, Kaufmann’s Estate, 171 A.2d 48. 404 Pa. 131 (1961), there must be a sufficient disclosure of assets to allow the other party to make an intelligent decision concerning the rights which will be given up under the terms of the agreement.” Nitkiewicz v. Nitkiewicz, 535 A.2d 664, 667 (Pa. Super. 1988). The defendant knew about this account and received its statements during the summer months from this account. The court cannot find that the exact worth of the retirement account had a substantial bearing on the parties’ property distribution. As a result, the circumstances of the instant case establish that the defendant had a sufficient understanding of the parties’ assets at the time the agreement was executed.

Based upon the above, the defendant has failed to rebut the presumption of full and fair disclosure by clear and convincing evidence of fraud or a misrepresentation. Although the agreement did not contain the values of the assets, this does not invalidate the agreement. The facts and circumstances of this case demonstrate that the defendant was fully and fairly aware of the marital estate. As such, the parties are bound by the disclosure language contained in the agreement.

The defendant also argues that the agreement should be set aside because it is wholly unfair to her legal interest. It is not for the court to invalidate an agreement based upon the unfairness of its terms. The alleged inequity of the bargain may not be evaluated by the court. See Sobad v. Fessenden, 825 A.2d 682, 688 (Pa. Super. 2003). Moreover, the agreement explicitly states the following:

WHEREAS, both parties represent by the execution of this Agreement, that they fully understand all of the terms, conditions and provisions of this Agreement and believe it to be fair, just, adequate and reasonable as to each of them and consonant with the best interests and welfare of their child, and accordingly both Husband and Wife freely and voluntarily accept such terms, conditions and provisions.

Agreement pg. 2. The above terms are clear and unambiguous. “[T]he paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent.” Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004). “[Wjhere, as here, the words of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the express language of the agreement itself.” Id. As a result the clear intent of the parties in the instant case has been memorialized in the agreement. The defendant is, therefore, not entitled to relief on this basis.

Similar to the above argument, the defendant also argues that the agreement should be set aside because it is unreasonable. This contention is without merit. The court in Simeone provided that the reasonableness of an agreement is not a proper subject for judicial review. 581 A.2d at 166. See also Lugg v. Lugg, 64 A.3d 1109, 1112 (Pa. Super. 2013). As a result, this court will not consider the reasonableness of the agreement; and the agreement cannot be set aside on this basis.

Next, the defendant argues that the agreement should be set aside because she was under the duress of her husband. The court in Hamilton v. Hamilton, 591 A.2d 720, 721 (Pa. Super. 1991) defined duress as follows:

That degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness... Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel.

(citing Carrier v. William Penn Broadcasting Co., 233 A.2d 519 (Pa. 1967)).

In the instant matter, there is little evidence or testimony that the defendant signed the agreement under duress. The defendant testified that the plaintiff is “an intense person” and she addressed this issue with the parties’ marriage counselor. The defendant did not testify that she was actually afraid of the plaintiff or that the plaintiff threatened to or inflicted any degree of restraint upon the defendant. Moreover, the agreement plainly states that “neither party has retained counsel on their own behalf, although understanding and being aware of their right to do so, and freely, voluntarily and under their own accord without duress and any promises other than set forth herein, understand their rights and responsibilities, agree and consent to execute this agreement without the aid nor assistance of counsel, understanding the legal significant of this Agreement.” In addition to the language of the agreement, attorney Bonner testified that he advised each party that both could obtain counsel. The defendant also conceded that she knew she could have obtained counsel prior to signing the agreement. She also admitted to signing the agreement voluntarily and attending the meetings with attorney Bonner under her own free will. Therefore, there is no merit to the defendant’s claim that she signed the agreement under duress. Accordingly, the defendant is not entitled to relief from the agreement on this basis.

The defendant next argues that the agreement should be set aside because attorney Bonner was not acting in a neutral capacity when drafting and executing the agreement. A review of the testimony reveals that attorney Bonner was indeed acting in a neutral capacity when drafting the agreement. The testimony clearly establishes that attorney Bonner refused to give the parties legal advice and acted solely as the scrivener. Attorney Bonner’s thirteen-year friendship with the plaintiff does not suggest that attorney Bonner was acting as the plaintiff’s attorney and unfairly towards the defendant.

The record reveals that attorney Bonner filed the complaint in divorce on behalf of the plaintiff; however, on the cover sheet, the complaint in divorce states that his representation is for filing purposes only. The court finds this to be of no consequence. The record also reveals that the defendant actively participated in negotiating the provisions of the agreement. The agreement also states the following:

WHEREAS, neither party has retained counsel on their own behalf, although understanding and being aware of their right to do so, and freely, voluntarily and under their own accord without duress or any promises other than set forth herein, understanding their rights and responsibilities, agree and consent to execute this Agreement without the aid nor assistance of counsel, understanding the legal significance of this Agreement.

Agreement pg. 1. The court finds this language to be presumptively persuasive. Neither party has presented any evidence to suggest that attorney Bonner coerced the defendant to sign the agreement or that attorney Bonner treated either party unfairly or in any way but a neutral capacity. As such, the court finds that attorney Bonner was acting in a neutral capacity when drafting the agreement.

Based upon the foregoing, the court finds the instant agreement to be a valid contract including a bargained for exchange. The defendant through her testimony conceded that she negotiated the terms of the contract with the plaintiff. She also admitted that she voluntarily signed the agreement. As a result, the agreement and its terms are valid and will not be set aside.

Lastly, the defendant argues that the oil and gas lease is outside the scope of the agreement and should be subject to independent equitable distribution proceedings. As stated above, the farm obtained an oil and gas lease with the Shell Corporation. The defendant argues that the oil and gas lease is not a business interest that would come within in the language of section thirteen of the agreement. As also provided supra, section thirteen states the following:

Husband is a partner in McConahy Farm (hereinafter ‘The Farm’). Wife hereby waives, assigns, designates, and transfers any and all rights, title, claim and interests to Husband which she may have, had or shall at anytime have to his business interest in The Farm. Effective with the execution of this Agreement, Husband will be the sole and exclusive owner of his business interest in The Farm and may take action with respect to his business interest as he, in his sole discretion deems appropriate. Husband warrants that Wife has no responsibility with respect to his business interest.

Agreement, pg. 7. §13.

The defendant argues that since the royalty payment from the oil and gas lease was included on the partners’ personal incomes taxes and there was no provision that required the partners to reinvest the monies into the farm, the proceeds from the lease are not a business asset of the farm’s. This court does not find this argument to be persuasive. The Shell Corporation contracted only with the partners of the farm for the oil and gas lease. Only the partners as partners to the farm had an interest in the land that was subject to the oil and gas lease. The proceeds were lawfully included on each partner’s personal income taxes by way of the Internal Revenue Code. The proceeds of the lease were first used to satisfy necessities of the farm. The oil and gas lease appears to be more persuasively a business interest of the farm than of the marital estate. However, the court does not need to classify the proceeds from the oil and gas lease because it is of no consequence.

As found above, the defendant knowingly and voluntarily waived her right to obtain any additional interest in the farm or income of the plaintiff’s. Section three, entitled “Mutual Release” provides in relevant part, “Wife hereby releases all rights, interest, claims, demands and privileges in or to any or all the real or personal property now owned by the [Plaintiff] as his own personal estate[.]” Agreement, §3. Furthermore, section nineteen of the agreement is entitled “Waiver of Rights and Obligation” and provides, in relevant part, the following: Agreement, §19. Based upon the language of these provisions, and the considerations discussed above, specifically the defendant’s access to and intimate knowledge of the finances of both the marital estate and of the Farm, the court finds that the defendant has knowingly and effectively waived her right to any interest beyond those contained in the agreement, including any proceeds from the oil and gas lease executed on behalf of the farm.

[A]ny further debt or liability or property obtained by the respective party hereto shall belong to that party only, and the other party hereto shall not be responsible for any debt or obligation of that party, nor shall either party have any claim to any additional property attained hereafter by one of the parties hereto.

Based upon the foregoing, the defendant’s petition to set aside marital settlement agreement is hereby denied.

ORDER OF COURT

And now, this 16th day of September, 2013, the case being before the court on January 29,2013, April 1, 2013, and April 30, 2013 regarding defendant’s motion to set aside marital settlement agreement, with Phillip L. Clark, Jr., Esquire, appearing and representing the plaintiff, and with Bradley G. Olson, Jr., Esquire, appearing and representing the defendant, it is hereby ordered and decreed as follows:

1. Defendant’s motion to set aside marital settlement agreement is hereby denied pursuant to the attached opinion.

2. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.

      . Although the defendant obtained spreadsheet forms and programs from this class, she never employed them in her bookkeeping of the farm.


author: FARINA, J.,

text:
    Styer v. Weaver Petroleum, Inc.

      C.P. of Lancaster County,
    No. CI-11-01349

      Susan P. Peipher, for plaintiff.

      Gary A. Hurwiiz, for defendants.
    July 30 2013
   FARINA, J.,

Presently before the court is the motion for summary judgment of defendants K.E. Weaver Petroleum, Inc. and Kenneth E. Weaver. Plaintiff filed the instant lawsuit to recover expenses incurred in remediating the release of fuel oil from an underground storage tank. The sole issue raised by defendants’ motion is whether plaintiff’s daughter, Sandra Styer-Martin, is an indispensable party to this action by virtue of her status as a joint tenant with right of survivorship of the property that is the subject of this litigation. For the following reasons, I conclude that Ms. Styer-Martin does have a “joint interest” in the property under Pa.R.C.P. 2227(a), that she is therefore an indispensable party who must be joined, and that since the statute of limitations has run as to her, the action must be dismissed under Pa.R.C.P. 2227(a) and Pa.R.C.P. 1032(b).

Under Pa.R.C.P. 2227(a), “[pjersons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.” Pa.R.C.P. 2227(a). If such a party cannot be joined, the court must dismiss the action. See Moorehead v. Lopatin, 445 A.2d 1308, 1310 (Pa. Super. 1982) (“Pa.R.C.P. 2227(a) requires dismissal of an action, brought against only one party where there exists no timely attempt to join another necessary party as a defendant.”); see also Enright v. Kirkendall, 819 A.2d 555, 557 (Pa. Super. 2003) (same); see also Maloney v. Rodgers, 135 A.2d 88, 92 (Pa. Super. 1957) (“The failure to join all the joint owners, either voluntarily or involuntarily, would require that the action be dismissed.”) (citing Pa.R.C.P. 1032(2), now Pa.R.C.P. 1032(b)).

“Significantly, the Rule is not predicated upon some administrative benefit to be gained by joinder but upon the unity and identity of the interests of the co-owners who are to be joined.” State Farm Mut. Auto. Ins. Co. v. Ware’s Van Storage, 953 A.2d 568, 573 (Pa. Super. 2008) (quotation omitted).

Plaintiff argues that “[t]he Supreme Court’s holding in DeCoatsworth demonstrates that a joint owner of property is not automatically an indispensable party in claims brought by his or her co-owner.” He argues that the case stands for the proposition that the court must employ the 4-factor test articulated in Mechanicsburg Area School District v. Kline, 431 A.2d 953, 956 (Pa. 1981), regardless whether joint property is involved and Rule 2227 is invoked. This argument is incorrect for several reasons.

First, this argument is based on an incorrect reading of the Decoatsworth case and a misinterpretation of the Decoatsworth Court’s invocation of Mechanicsburg Area School District. In Mechanicsburg Area School District, the school district sued in equity to prevent the final installment of school subsidies because the incomes of 1,084 taxpayers were erroneously attributed to the school district in calculating Mechanicsburg’s taxable income for subsidy purposes. Mechanicsburg Area School District, supra, at 955. Three of the defendants, the Secretary of Education, the State Treasurer, and the Secretary of Revenue, filed preliminary objections to the complaint, alleging failure to join the other school districts in the Commonwealth as necessary and indispensable parties. Id., at 956. Rule 2227 was not discussed, and the court created the current test to determine whether a party is indispensable. Id.

In Decoatsworth, an estranged husband and wife at risk of losing their home conveyed the property to an individual pursuant to an agreement that they could buy it back at a later time, and after the estranged husband, who was the only one living at the residence at the time, refused to pay the sums the buyer claimed were owed, the buyer sued to evict him, and the estranged husband counterclaimed for fraud but did not join his estranged wife. Decoatsworth, at 793-794. Our Supreme Court reversed the Superior Court’s finding that the estranged wife was an indispensable party to the husband’s counterclaim, noting that the entireties estate at issue there was severed when the estranged husband and wife effectuated a joint transfer of the property to the plaintiff. Id., at 797. Since they were not co-owners due to the severance of the tenancy, and the husband was seeking damages, not re-instatement of his interest, the court found that the estranged wife was “not an indispensable party on account of her status as a member of a tenancy by the entireties.” Id. Contrary to plaintiff’s assertion, the court then began to analyze whether the wife was an indispensable party under the factors in Mechanicsburg Area School District only because it had determined that the wife was not indispensable by virtue of her status as a tenant by the entireties. See DeCoatsworth, at 797 (“We conclude, therefore, that Odessa is not an indispensable party on account of her status as a member of a tenancy by the entireties, but it remains to consider whether she may be indispensable for some other reason.”).

Plaintiff’s argument is also belied by the fact that in other cases after Mechanicsburg Area School District and DeCoatsworth where jointly-owned property was the subject of the litigation and motions were made on the basis of failure to join an indispensable party, the court did not use the four-part test from Mechanicsburg Area School District. For example, in Moorehead, supra, one year after the court’s decision in Mechanicsburg Area School District, the Superior Court held that in an action alleging negligent maintenance of real estate owned by two parties as tenants by the entireties, both parties must be timely joined under Rule 2227(a) to avoid dismissal of the case; no mention was made of Mechanicsburg Area School District or the test created therein. Likewise, in Enright v. Kirkendall, 819 A.2d 555 (Pa. Super. 2003), twenty-two years after Mechanicsburg Area School District and nine years after DeCoatsworth, the Superior Court analyzed the same issue that was before the Court in Moore head and again made no mention oí Mechanicsburg Area School District or the four-part test.

Finally, plaintiff’s argument that joint ownership of the subject property is not enough to make the co-owner an indispensable party is inconsistent with a plain reading of the rule. The interpretation of Pa.R.C.P. 2227(a), like the interpretation of all rules of civil procedure, must be guided by the dictates of Pa.R.C.P. 127, which provides “[wjhen the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Pa.R.C.P. 127. Rule 2227(a) states that “[pjersons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.” Pa.R.C.P. 2227(a). It is clear that the phrase “joint interest” clearly and unambiguously encompasses joint tenancy property, as joint tenancy property is property that is owned, in every sense of the word, jointly.

It is axiomatic that in order for a joint tenancy to form, there must exist a unity of interest, title, time, and possession. “[I]n other words, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same possession.” Estate of Kotz, 406 A.2d 524, 532 (Pa. 1979) (quotation omitted). “The interest of two joint-tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other. While it continues, each of two joint tenants has a concurrent interest in the whole...” In re Haggerty’s Estate, 166 A. 580, 581 (Pa. 1933) (citing Blackstone, Book 2, §§ 182, 184).

The conclusion that joint tenants meet the definition of indispensable parties, although leading to a harsh result in cases such as the one presently before the court, is a logical one, given the foundation for Rule 2227. In State Farm Mut. Auto. Ins. Co., supra, the Superior Court noted that the rule is “predicated.. .upon the unity and identity of the interests of the co-owners who are to be joined.” State Farm Mut. Auto. Ins. Co., at 573. If the basis for the rule, and therefore the focus of the inquiry, is the “unity and identity of the interests of the co-owners to be joined,” then the rule must apply to joint tenants, who have a unity of interest, which, by definition, requires “identical interests as to the share of the common property,” Edel v. Edel, 424 A.2d 946, 948-49 (Pa. Super. 1981) (citation omitted), as well as a unity of time, title, and possession.

This conclusion is also supported by statements made by the appellate courts. In Maloney v. Rodgers, 135 A.2d 88 (Pa. Super. 1957), as a result of a car accident, the plaintiffs, Mary and Clara Maloney, sued the defendant for damages to the vehicle they owned and personal injuries, and the defendant counterclaimed against the driver, Mary, for same. Maloney, at 90. The claims were consolidated, and the jury found both drivers at fault and denied recovery to all. Id. Plaintiffs filed a motion for new trial on various grounds, and the court granted a new trial but only to Clara Maloney because the trial as to Mary was considered to have been without prejudicial error. Id. Both plaintiffs appealed, claiming, inter alia, that the trial court was required to grant a new trial as to both plaintiffs under Rule 2227(a). Id, at 90-92. The court noted that it was not clear whether the plaintiffs owned the car as tenants in common or joint tenants, but if they were joint tenants, the grant of a new trial to Clara Maloney would compel a new trial for Mary as to the car. Citing Rule 2227 and Magee v. Morton Building and Loan Association, 158 A. 647 (Pa. Super. 1931), the court noted that “[a] claim for damages to jointly owned property must be enforced in a joint action.” Id., at 92. Citing Rule 1032, the court stated that “[t]he failure to join all the joint owners, either voluntarily or involuntarily, would require that the action be dismissed.” Id. Therefore, the court held that “[a]t the new trial it must be determined whether Mary Maloney and Clara H. Maloney are joint owners, and if they are they may recover the total damage for the injury to the car because the claim is not severable.” Id., at 93.

In support of its decision, the Maloney court also noted that “Joint tenants...ape regarded as having one entire and connected right, ...and they cannot sue separately for themselves...” Id. (quotation omitted). For this proposition, the court cited Mobley v. Bruner, 59 Pa. 481 (Pa. 1868), where our Supreme Court, long before the adoption of Rule 2227, noted that “joint tenants, who are regarded as having one entire and connected right, and are said to be seised per my et per tout, each having the entire possession as well of every parcel as of the whole, cannot sue separately for themselves, or for the joint benefit of themselves and their fellows, but must join and be joined in all actions respecting the estate.” Mobley, at 483. Therefore, it is indeed the case that “the requirement of joinder of all having a joint interest has long been the law in Pennsylvania.” Onorato v. Wissahickon Park, Inc., 244 A.2d 22, 24-25 (Pa. 1968).

Although Maloney was decided in 1957, the Superior Court does not appear to have changed its position with respect to the indispensable nature of joint tenants. Although in dictum, the Superior Court has more recently stated that “[ujnder Rule 2227 Pa.R.C.P. indispensible parties are inter alia joint tenants, tenants in common, and tenants by the entireties.” Mitchell v. Prudential Prop. & Cas. Ins. Co., 499 A.2d 632, 636 (Pa. Super. 1985).

The note to the original version of Rule 2227, specifically subsection (b), also provides some insight. Subsection (b) provides: “[i]f a person who must be joined as a plaintiff refuses to join, he 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). The Superior Court has explained that “[t]he Rule is applicable only where the substantive law provides that an interest is joint and the holder of such interest refuses to join, making involuntary joinder necessary because without such joinder an indispensable party is missing and the action cannot proceed.” State Farm Mut. Auto. Ins. Co., supra, at 573 (quotations omitted). The comment to subsection (b) of the original rule provides that an unwilling person may be joined “under present rules of substantive law” when, inter alia, “[t]he willing plaintiff and the unwilling person are joint tenants or tenants by the entireties and the action is brought to preserve or recover the jointly owned property or damages for injury to such property.” Pa.R.C.P. 2227(b), adopted June 7, 1940, note (citations omitted) (emphasis added). This suggests that substantive law, at least at the time the rule was adopted, permitted the involuntary joinder of joint tenants in actions of injury to the estate because such individuals were considered indispensable parties to the litigation. Although 1940 was some time ago, the rule has remained the same, and nothing subsequent to the rule’s adoption appears to contradict this statement of the law.

As other trial courts have noted, Rule 2227(a) was derived from Federal Rule of Civil Procedure 19(a). See Pa.R.C.P. 2227(a), adopted June 7, 1940, note. Consequently, authorities interpreting that rule may be useful to the analysis. In 3 Moore Fed. Pract. §19.05, William Moore, a well-respected commentator on the federal rules, pointed out that:

A rule could not hope to state minutely who are necessary and who are indispensable parties in the myriads of cases that come before the courts. The phrase ‘joint interest’ is not to be given a technical meaning. Such a narrow meaning given to compulsory joinder would lead to a multiplicity of suits and undue vexation of defendants in cases where several persons were interested, but their interests were not technically joint.

Com. v. Baltimore & O. R. Co., 25 Pa. D. & C.2d 215, 219-20 (Pa. Com. Pl. 1961) (citing 3 Moore Fed. Pract. § 19.05). This authority, while not binding, is persuasive and provides further confirmation of the correct interpretation of Rule 2227.

Given the plain language of the rule, the courts’ interpretations of it, and the law regarding joint tenancies, I must conclude that Sandra Styer-Martin’s interest in the property as a joint tenant with right of survivorship, an interest which plaintiff concedes, renders her an indispensable party to this action, and since plaintiff, knowing of this interest, allowed the statute of limitations to expire as to her, I am forced to dismiss the instant action under Pa.R.C.P. 2227(a) and 1032(b).

Accordingly, I enter the following:

ORDER

And now, this 3 0th day of July, 2013, upon consideration of defendants K.E. Weaver Petroleum, Inc. and Kenneth E. Weaver’s motion for summary judgment, and the briefs submitted by the parties, it is hereby ordered and decreed that plaintiff’s complaint is dismissed for failure to join an indispensable party pursuant to Pa.R.C.P. 2227(a) and Pa.R.C.P. 1032(b)

      . Plaintiff concedes that the property has been owned by plaintiff and Sandra Styer-Martin as joint tenants with right of survivorship since 2002. Plaintiff also concedes that the two-year statute of limitations, which began to run on or about February 14, 2009, has elapsed as to Ms. Styer-Martin. Therefore, the only issue is whether Ms. Styer-Martin is an indispensable party to this litigation under Pa.R.C.P. 2227(a) and Pa.R.C.P. 1032(b).

      . According to the comments to the current version of the rule, the rule was amended to make a stylistic change from numerical to alphabetical ordering and to provide that dismissal is appropriate for failure to join an indispensable party only when the indispensable party cannot be joined. Neither change affects the purpose for which the case is cited, which is to show the interplay between Rule 2227(a) and Rule 1032(b).

      . The case referenced by plaintiff is DeCoatsworth v. Jones, 639 A.2d 792, 797 (Pa. 1994).

      . The court held that “[t]he determination of an indispensable party question involves at least these considerations:
      1. Do absent parties have a right or interest related to the claim?
      2. If so, what is the nature of that right or interest?
      3. Is that right or interest essential to the merits of the issue?
      4. Can justice be afforded without violating the due process rights of absent parties?”

      . In Moorehead, the plaintiffs, who were attempting to avoid a finding that the landowner who co-owned the property where plaintiffs were injured was an indispensable party, made the same arguments plaintiff makes here, to wit, that the landowner was an owner in name only and did not participate in the maintenance or control of the property. The Superior Court expressly declined to address the argument, however, because it was unsupported by the factual averments in the complaint. Although here plaintiff’s complaint contains these allegations, they do not appear as limitations in the deed, nor do they appear in the power of attorney.

      . Although the origin of this statement was a case in which the Superior Court cited to subsection (b) of the rule, the Superior Court’s reference in State Farm Mut. Auto Ins. Co. was not so limited, and in any event, subsection (b) is simply the mechanism by which subsection (a) may be enforced.

      . The substance of the rule remains unchanged since its adoption in 1940.

      . Plaintiff makes the distinction that he is suing only for out-of-pocket losses in remediating the spill. However, Ms. Styer-Martin’s interest in the property allows her to sue for injury thereto, and it is this right that governs, not how the proceeds of the recovery will ultimately be distributed.


author: CEISLER, J.,

text:
    Johnlaeden v. OMAT I REO Holdings, LLC

      Michael Johnlaeden, pro se appellant.

      Michael James Lyon, Jr., for appellees Omat I Reo, Ocwen Financial Corp.

      Gregory Javardian, for appellee CR Capital Group.
    September 5, 2013—
   CEISLER, J.,

I. FACTS AND PROCEDURAL HISTORY

The plaintiff-appellant Michael Johnlaeden (hereinafter “appellant”) appeals this court’s order of July 18,2013 that sustained defendant/appellee CR Capital Group LLC’s (hereinafter “appellee” or “CR Capital”) preliminary objections and dismissed appellant’s complaint against appellee with prejudice.

The convoluted procedural history of this case is as follows: On December 8, 1998, Zannie and Ida May Williams obtained a mortgage for a house at 4630 Femhill Road, Philadelphia with Home American Credit, Inc. d/b/a Upland Mortgage; defendants’ preliminary objections to plaintiff’s first amended complaint, ex. A. This mortgage was assigned to Deutsche Bank as trustee for Ocwen Financial Corporation (hereinafter “Ocwen”) in September 2009. Defendants’ preliminary objections, ¶5. On December 15, 2009, Deutsche Bank filed a complaint in mortgage foreclosure against the Williams for defaulting on their mortgage, (hereinafter “the foreclosure action”). On February 28, 2011, a default judgment in favor of Deutsche Bank was entered against the Williams. Id. at ¶¶5-6.

On June 7, 2011, appellant, under his “alter-ego” the Wampum Collective Fund, allegedly purchased the property from Zannie Williams for $4000. According to the Appellant, Zannie Williams granted him the deed to the property and documents acknowledging a mechanic’s lien and security agreement. First amended complaint for mechanic lien enforcement, ¶6-10 (hereinafter “first amended complaint”). Appellant alleged that work done to the 4630 Femhill Rd., by appellant and other occupants of the premises, began in November 2011 and included gutting the entire interior of the house to make it habitable. First amended complaint, ¶14-16. The mechanic’s lien itself has several serious defects, not the least of which is the fact that that a lien cannot by law take effect until a contractor has commenced improvement work. See 49 P.S. §1508. By appellant’s own pleadings, he admits that he had already been the owner of the property for several months by the time the lien took hold. However, defendants did not raise the issue of defects in appellant’s mechanic’s lien itself.

On September 15, 2011, appellant filed a motion to intervene in the foreclosure proceedings between Deutsche Bank and the Williams alleging that Wampum Collective Fund controlled the property. On September 19, 2011, appellant then filed a motion to strike the judgment. Defendants’ preliminary objections, ex. B. After a hearing, Common Pleas Court Judge Idee Fox denied both motions. Plaintiff appealed both denials to the Superior Court. In Judge Fox’s opinion filed on March 6, 2012, Judge Fox reasoned that appellant’s purported interest in the property was acquired only after the foreclosure action was filed and after default judgment was entered; therefore, plaintiff had no recognized interest in the outcome of the litigation and could not intervene in the foreclosure action. See Deutsche Bank Nat. Trust Co. v. Williams, 2012 WL 994552 (Pa. Ct. Com. Pleas, March 5, 2012), On May 2, 2012, plaintiff’s appeals were quashed by the Superior Court. Defendants’ preliminary objections, ex. B. On June 6, 2012, the property was sold at sheriff’s sale to OMAT I REO Holdings, LLC (hereinafter “OMAT”). First amended complaint, ¶18.

On January 9, 2013, appellant filed a “Complaint for Mechanic Lien Enforcement” seeking to enforce two mechanic’s liens on the property, one for $150,000 and one for $25,000, plus interest and costs. According to appellant’s complaint, two mechanic’s liens were filed under Common Pleas Case ID 1106M0003. See complaint. However, the docket for said case provides evidence of only one mechanic’s lien. Appellant named OMAT and Ocwen as defendants and alleged that OMAT was a front for Ocwen. Id. at ¶4. In this complaint, appellant asked the court to issue a writ of execution directing the sheriff to sell the property, and to apply the sale proceeds to satisfy the mechanics liens. Id. at ¶¶22, 30.

On February 20, 2013, appellant served his complaint on Shapiro & DeNardo, the law firm representing Deutsche Bank and OMAT in the foreclosure action. On February 22, 2013, appellant filed a motion to amend, in order to add appellee CR Capital as a defendant. Appellant alleged that CR Capital had purchased the property from OMAT. Plaintiff’s motion to join additional defendant, ¶3. This court granted appellant’s motion on March 21, 2013, and appellant filed an amended complaint on March 22, 2013, which, other than naming CR Capital as a defendant, was substantially similar to plaintiff’s original January 9, 2013 complaint. Compare complaint with first amended complaint. CR Capital was served with the amended complaint on March 25, 2013.

On April 11, 2013, defendants OMAT and Ocwen filed preliminary objections to appellant’s first amended complaint. These defendants argued that: 1) appellant did not have standing, as his mechanic’s lien postdated the assignment of the mortgage and the foreclosure action; 2) the complaint should be stricken for failing to name the owner of the property, Deutsche Bank, as a defendant; and, 3) appellant improperly served his original complaint on defendants’ law firm. Defendants’ preliminary objections. Appellant filed his reply to these preliminary objections that same day arguing that appellant did have standing, that the defendants were property named, and that appellant’s mechanic’s lien had legal priority over “mere finance-mortgages.” Plaintiff’s reply to defendants’ preliminary objections.

On April 19,2013, appellee CR Capital filed preliminary objections to plaintiff’s amended complaint that were substantially similar to the preliminary objections filed by the other defendants. Appellant replied to these preliminary objections on April 22, 2013 with language that was substantially similar to appellant’s reply to the preliminary objections of the other defendants.

On June 20, 2013, this court issued two orders, one addressing the preliminary objections filed by defendants OMAT and Ocwen, and the other addressing appellee CR Capital’s preliminary objections. In these orders, court sustained the preliminary objections as to demurrer, determining in each situation that plaintiff’s first amended complaint should be dismissed with prejudice.

On July 18, 2013, plaintiff appealed this court’s order pertaining to defendant CR Capital’s preliminary objections. Appellant did not appeal this court’s order pertaining to defendants OMAT and Ocwen preliminary objections. That same day, this court directed plaintiff to provide a statement of errors pursuant to Pa. R.A.P. 1925(b). Appellant filed his 1925(b) statement on August 9, 2013, which is reproduced, verbatim, herein:

1. The Court erred as a matter of law by dismissing the above captioned case with prejudice. It was the very same Order that overruled every Objection made by all Defendants. Yet the Order for Dismissal holds that “all other Objections are sustained”. There are however no other objections, so the law must go for the Plaintiff, and allow the case to be tried on the merits.

The Defendants were overruled as to issues of service; proper parties to the action, the proper form of the action; standing to sue as trustee ad litem; and making a legally sufficient claim for which relief could be granted, based on the priority of the mechanics lien enforcement versus an earlier-dated mortgage. The specific Ruling of this Court:

14-13042514 UPON CONSIDERATION OF THE PRELIMINARY OBJECTIONS, IT IS HEREBY ORDERED AS FOLLOWS: THE PRELIMINARY OBJECTION RAISED PURSUANT TO PA. R.C.P. 1028(A)(2) AND 1654(A) IS OVERRULED. THE PRELIMINARY OBJECTIONS ARGUING SERVICE OF PROCESS IS DISMISSED AS MOOT, AS SERVICE OF PROCESS WAS ACCOMPLISHED ON MARCH 25, 2013; THE REMAINING PRELIMINARY OBJECTION IS SUSTAINED AND PLAINTIFF’S FIRST AMENDED COMPLAINT IS DISMISSED WITH PREJUDICE... BYTHE COURT: 06/17/2013

All these issues are well subsumed within those procedural requirements. There being no other Objections, it is impossible to understand what Objection was sustained. Based on the written Order of the Court, the ruling errs as a matter of law for dismissing the case with prejudice despite finding no warranted objections by the Defendants. The case should be allowed to proceed for trial.

II. DISCUSSION

This court respectfully requests that the instant appeal be denied for the following reasons:

1. Appellant has waived his right to appeal this court’s order sustaining of appellee’s demurrer-based preliminary objections and dismissal of his complaint against appellee for failure to raise the issue in his 1925(b) statement.
2. Assuming, arguendo, appellant had raised this issue in his 1925(b) statement, appellant’s alleged mechanic’s lien was discharged when the property was sold at sheriff’s sale. Therefore, as appellee CR Capital took ownership of the property subsequent to said sale, appellant was barred from enforcing his lien against them.

Within any 1925(b) statement of errors an appellant is required to identify “each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues.” Pa. R.A.P. 1925(b)(4)(h). Issues not included are deemed waived. Id. at 1925(b)(4)(vii).

While appellant is indeed correct that this court overruled two of CR Capital’s preliminary objections, regarding service of process and conformity of the complaint to the rules of court, plaintiff fails to address CR Capital’s demurrer-based preliminary objection. Compare plaintiff’s statement of errors, supra, with CR Capital’s preliminary objections, at 7-11 (preliminary objections based upon “Legal Insufficiency of the Pleading-Demurrer,” “Failure to Conform to Rule of Court,” and “Improper Form of Service of FAC.”). Given that this court dismissed plaintiff’s first amended complaint on the basis of demurrer, appellant’s failure to raise this issue on appeal in his 1925(b) statement effectively bars him from raising this issue on appeal. On that basis alone, this court’s ruling on the preliminary objections must be upheld and the instant appeal denied.

Assuming, arguendo, that plaintiff had raised the issue of demurrer in his 1925(b) statement, it remains that this court properly sustained CR Capital’s demurrer-based preliminary objection. Preliminary objections in the nature of a demurrer are appropriate when the pleading at issue fails to state a claim upon which relief can be granted. Pa. R.C.P. 1028(a)(4); Willet v. Pennsylvania Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997). Such objections admit all “well-pleaded facts, as well as all reasonable inferences therefrom and may not be sustained unless it is clear on face of pleading that the law will not permit recovery sought.” Chartiers Valley School Dist. V Virginia Mansions Apartments, Inc., 489 A.2d 1381, 1386 (Pa. Super. Ct. 1985). “Where the preliminaiy objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred.” Reeves v. Middletown Athletic Ass ’n, 866 A.2d 1115, 1122 (Pa. Super. Ct. 2004) (quoting Goodman v. PPG Indus., Inc., 849 A.2d 1239, 1243 (Pa. Super. Ct. 2004)).

With regard to mechanic’s liens, it is well settled that, once a property is sold at sheriff’s sale, such a lien cannot be enforced against the new owner. Hill v. Edinboro Dev., Inc., 420 A.2d 562, 566-67 (Pa. Super. Ct. 1980) (citing Rosenberg v. Cupersmith, 87 A. 570 (Pa. 1913)). As the Pennsylvania Supreme Court has stated:

It does not need the citation of authorities to sustain the proposition, settled by all our decisions on the subject that in this state a mechanics’ lien is discharged by a judicial sale of the real estate bound by the lien. It is equally well settled and in harmony with all our cases that the purchaser at such sale takes the property discharged of the lien, and that the claimant is remitted to the fund produced by the sale for satisfaction of his claim.

Rosenberg, 87 A. at 570.

As the aforementioned sheriff’s sale occurred due to default on a mortgage that was issued to the Williams in December 1998, appellant’s June 2011 mechanic’s lien was discharged by said sale. Given this, any subsequent purchaser obtained ownership of the property free and clear of said lien, including, but not limited to, CR Capital. Accordingly, appellant was legally barred from enforcing his mechanic’s lien against the post-sale owners of the property. Thus, this court properly sustained CR Capital’s demurrer-based preliminary objection and dismissed plaintiff’s first amended complaint with prejudice.

III. CONCLUSION

For the aforementioned reasons, this court respectfully request that the instant appeal be denied.

      . Defendants OMAT I REO Holdings, LLC and Ocwen Financial Corporation filed preliminary objections together, while defendant CR Capital Group, LLC filed separate preliminary objections. Hereinafter, defendants’ preliminary objections refers to those preliminary objections filed by OMAT I REO Holdings, LLC and Ocwen Financial Corporation.

      . Appellant repeatedly refers to Ocwen as Ocwen Financial Corporation, however, Ocwen asserts that its proper name is Ocwen Loan Servicing, LLC. Defendants’ preliminary objections.

      . On March 7,2013, defendants OMAT I REO Holdings, LLC and Ocwen Financial Corporation filed their preliminary objections to plaintiff’s complaint, which was rendered moot after appellant filed his first amended complaint.

      . This court also sustained OMAT and Ocwen’s preliminary objection regarding improper service, by appellant, of his first amended complaint. All other preliminary objections, whether raised by OMAT and Ocwen or CR Capitals, were overruled by this court.