Kawah v. PHH Mortg. Corp.

Full title: JEBEH KAWAH Appellant v. PHH MORTGAGE CORPORATION, F/K/A CENDANT MORTGAGE…

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 9, 2019

No. J-S26017-19 (Pa. Super. Ct. Sep. 9, 2019)

Opinion

J-S26017-19 No. 3293 EDA 2018

09-09-2019

JEBEH KAWAH Appellant v. PHH MORTGAGE CORPORATION, F/K/A CENDANT MORTGAGE CORPORATION, D/B/A PHH MORTGAGE SERVICES Appellee

MEMORANDUM BY GANTMAN, P.J.E.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered October 11, 2018
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 180502540 BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI^*, J. MEMORANDUM BY GANTMAN, P.J.E.:

* Retired Senior Judge assigned to the Superior Court.

Appellant, Jebeh Kawah, appeals from the order entered in the Philadelphia County Court of Common Pleas, which sustained the preliminary objections of Appellee, PHH Mortgage Corporation, f/k/a Cendant Mortgage Corporation, d/b/a PHH Mortgage Services ("Bank"), and dismissed Appellant's complaint. We affirm.

In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them.

Appellant raises the following issues for our review:

DID THE TRIAL COURT ERR AS A MATTER OF LAW IN SUSTAINING [BANK'S] PRELIMINARY OBJECTIONS BASED ON A MISAPPLICATION OF THE THEORY OF RES JUDICATA?

DID THE TRIAL COURT ERR AS A MATTER OF LAW IN SUSTAINING [BANK'S] PRELIMINARY OBJECTIONS BASED ON A MISAPPLICATION OF PA.R.C.P. 233.1(A), WHICH STATES THAT UPON THE COMMENCEMENT OF ANY ACTION FILED BY A PRO SE PLAINTIFF IN THE COURT OF COMMON PLEAS, A DEFENDANT MAY FILE A MOTION TO DISMISS THE ACTION ON THE BASIS THAT: (A) THE PRO SE PLAINTIFF IS ALLEGING THE SAME OR RELATED CLAIMS WHICH THE PRO SE PLAINTIFF RAISED IN A PRIOR ACTION AGAINST THE SAME OR RELATED DEFENDANTS, AND (B) THESE CLAIMS HAVE ALREADY BEEN RESOLVED PURSUANT TO A WRITTEN SETTLEMENT AGREEMENT OR A COURT PROCEEDING, BY THE TRIAL COURT ERRONEOUSLY CONCLUDING THAT [THE] PLAINTIFF IS ALLEGING THE SAME OR RELATED CLAIMS?

DID THE TRIAL COURT ERR BY FAILING TO ADDRESS [APPELLANT'S] CLAIMS OF PROMISSORY ESTOPPEL[,] CONSTRUCTIVE FRAUD, TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATION SIMPLY BECAUSE THEY WERE RELATED TO A PRIOR CASE BETWEEN THE PARTIES?

(Appellant's Brief at 4-5).

The scope and standard of review in examining a challenge to an order sustaining preliminary objections in the nature of a demurrer are as follows:

Our review of a trial court's sustaining of preliminary objections in the nature of a demurrer is plenary. Such preliminary objections should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. We will reverse a trial court's decision to sustain preliminary objections only if the trial court has committed an error of law or an abuse of discretion.

Kramer v. Dunn , 749 A.2d 984, 990 (Pa.Super. 2000) (internal citations omitted).

All material facts set forth in the complaint as well as all

inferences reasonably [deducible] therefrom are admitted as true for [the purpose of this review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Wawa , Inc., v. Alexander J. Litwornia & Associates , 817 A.2d 543, 544 (Pa.Super. 2003) (quoting Price v. Brown , 545 Pa. 216, 221, 680 A.2d 1149, 1151 (1996)). To the extent the questions presented involve an interpretation of the rules of civil procedure, our standard of review is de novo. Gray v . PennyMac Corp., 202 A.3d 712, 715 (Pa.Super. 2019).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Arnold L. New, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed January 8, 2019, at 4-6) (finding: Appellant's current complaint asserts Bank wrongfully foreclosed upon and sold mortgaged property, despite existence of mortgage modification; previously, Appellant unsuccessfully raised same or similar argument in her defense to Fannie Mae's ejectment action; additionally, alleged existence of mortgage modification was central to Appellant's 2013 suit against Bank, in which Bank prevailed; state and federal courts have previously addressed alleged violations of federal law, which Appellant raises in current complaint; simply put, courts have rejected Appellant's claims on at least three prior occasions; to extent Appellant argues Rule 233.1 does not apply, because Bank allegedly admitted it had mailed loan modification application to Appellant in December 2013, that argument also fails, where receipt, or even submission, of application is not enforceable contract). The record supports the trial court's rationale. Accordingly, we affirm.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/9/19

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