Johnson, E. v. Phelan Hallinan & Schmieg

J-A30019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDELLA JOHNSON (A/K/A EDELLA : IN THE SUPERIOR COURT OF

ROBINSON A/K/A EDELLA ROBINSON : PENNSYLVANIA

JOHNSON), ERIC JOHNSON, :

INDIVIDUALLY AND ON BEHALF OF :

OTHER SIMILARLY SITUATED :

FORMER AND CURRENT :

HOMEOWNERS IN PENNSYLVANIA. :

:

Appellants : No. 359 WDA 2017

:

:

v. :

:

:

PHELAN HALLINAN & SCHMIEG, LLP :

Appeal from the Order February 6, 2017

In the Court of Common Pleas of Allegheny County Civil Division at No(s):

GD-12-005395

BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2018

EdElla Johnson (a/k/a EdElla Robinson a/k/a EdElla Robinson Johnson)

and Eric Johnson, individually and on behalf of other similarly-situated

former and current homeowners in Pennsylvania (collectively “the

Johnsons”), appeal from the February 6, 2017 order sustaining the

preliminary objections in the nature of a demurrer filed by Phelan Hallinan &

Schmieg, LLP (“Phelan”). We affirm.

The certified record reveals the following. On May 23, 2002, the

Johnsons executed a mortgage and associated promissory note in the

amount of $74,000. The mortgage was secured by property located at 636

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Collins Avenue, Pittsburgh, Allegheny County.1 That instrument was duly

delivered, recorded, and subsequently assigned to the Bank of New York

Mellon Trust Company (“Mellon”).

In December 2008, the Johnsons defaulted on the mortgage. On

March 31, 2009, Mellon, through its counsel, Phelan, filed a complaint in

mortgage foreclosure. In the complaint, Mellon asserted, inter alia, that the

Johnsons owed $1,300 in attorney fees. After a non-jury trial, the trial court

found in favor of Mellon. The Johnsons appealed that decision, and this

Court affirmed. Bank of New York Mellon Trust Co., Nat’l Ass’n v.

Johnson, 170 A.3d 1261 (Pa.Super. 2017) (unpublished memorandum).

On March 23, 2012, while the foreclosure action was pending, the

Johnsons initiated the instant class action against Phelan. In their

complaint, the Johnsons alleged, inter alia, that Phelan violated section 406

of the Pennsylvania Loan Interest and Protection Law, 41 P.S. §§ 101 et seq.

(“Act 6”), by pursuing an award of attorney fees in the mortgage foreclosure

action that were not actually incurred.2 The Johnsons argued further that

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1The note was executed solely by Mr. Johnson. The mortgage was executed

by both Mr. and Mrs. Johnson.

2 Article IV of Act 6 contains the statute’s protective provisions. Section 406

of the Act limits the attorney’s fees that a “residential mortgage lender” may

recover from a “residential mortgage debtor,” and provides as follows:

With regard to residential mortgages, no residential mortgage

lender shall contract for or receive attorney’s fees from a

residential mortgage debtor except as follows:

(Footnote Continued Next Page)

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the same harm had been suffered by other former and current Pennsylvania

homeowners against whom Phelan had filed foreclosure complaints. In

reliance on section 502 of Act 6,3 which provides remedies for violations of

section 406, the Johnsons claimed that they and other similarly-situated

mortgagors were entitled to treble damages for excess attorney fees

assessed by Phelan.

Phelan filed preliminary objections in the nature of a demurrer,

contending that section 406 applies solely to “residential mortgage lenders,”

(Footnote Continued) _______________________

(1) Reasonable fees for services included in actual settlement

costs.

(2) Upon commencement of foreclosure or other legal action

with respect to a residential mortgage, attorneys’ fees

which are reasonable and actually incurred by the

residential mortgage lender may be charged to the

residential mortgage debtor.

(3) Prior to commencement of foreclosure or other legal action

attorneys’ fees which are reasonable and actually incurred

not in excess of fifty dollars ($50) provided that no

attorneys’ fees may be charged for legal expenses incurred

prior to or during the thirty-day notice period provided in

section 403 of this act.

41 P.S. § 406.

3 Article V of Act 6 provides remedies to “residential mortgage debtors” who

have been charged excessive costs and fees. Section 502 of the Act

provides, in relevant part: “a person who . . . has paid charges prohibited or

in excess of those allowed by this act . . . may recover triple the amount of

such excess . . . charges in a suit against the person who has collected such

excess . . . charges . . ..” 41 P.S. § 502.

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and not to their foreclosure counsel. On May 2, 2012, the trial court

sustained Phelan’s preliminary objections, and consolidated the matter for

appeal with another case raising similar issues, Glover v. Udren Law

Offices, P.C., docketed in the Allegheny County Court of Common Pleas at

GD-11-18015.

In the consolidated appeal, this Court affirmed the trial court’s order,

and determined that a “residential mortgage debtor” can only maintain a

cause of action for a violation of section 406 against a “residential mortgage

lender,” and not against their foreclosure counsel. Glover v. Udren Law

Offices, P.C., 92 A.2d 24, 28 (Pa.Super. 2014). Subsequently, the

Pennsylvania Supreme Court reversed, holding that foreclosure counsel

constituted a “person” for purposes of section 502, and, thus, “a borrower

may recover under [s]ection 502 from any entity — not solely the residential

mortgage lender — that collects excessive attorney’s fees in connection with

a foreclosure.” Glover v. Udren Law Offices, P.C., 139 A.3d 195, 200

(Pa. 2016). However, the High Court offered no opinion regarding the term

“collected,” as used in section 502, and remanded the matter for further

proceedings. Id. at 201.

On remand, Phelan again filed preliminary objections in the nature of a

demurrer. However, for the first time, it asserted that the Johnsons were

barred from pursuing relief under Act 6 because their $74,000 mortgage did

not qualify as a “residential mortgage” under section 101 of the Act, as their

mortgage exceeded the $50,000 statutory limit in effect at the time it was

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executed in 2002.4 The Johnsons maintained that the court should apply the

version of section 101 in effect in 2009, at the time the foreclosure action

was commenced, which raised the limit for a “residential mortgage from

$50,000 to $217,873.5 On November 30, 2016, the trial court sustained

Phelan’s preliminary objection based on collateral estoppel. The Johnsons

filed a motion for reconsideration, which Phelan opposed, and the Johnsons

filed a reply in support of their motion. The trial court granted

reconsideration so that the three remaining preliminary objections could be

ruled upon. On February 6, 2017, the trial court sustained the first

preliminary objection on the basis that the version of section 101 in effect at

the time the mortgage was executed was controlling, and the Johnsons were

precluded from bringing an action against Phelan under Act 6 because their

____________________________________________

4 Section 101 of Act 6 provides all of the definitions through which Act 6 is

interpreted. In 2002, when the Johnsons executed their mortgage, section

101 defined a “residential mortgage,” in pertinent part, as “an obligation to

pay a sum of money in an original bona fide principal amount of fifty

thousand dollars ($50,000) or less, evidenced by a security document and

secured by a lien upon property located in this Commonwealth[.]” 41 P.S.

§ 101 (as amended April 6, 1979, effective until September 7, 2008).

5 In 2008, section 101 was amended, and the term “residential mortgage”

was redefined as “an obligation to pay a sum of money in an original bona

fide principal amount of the base figure or less, evidenced by a security

document and secured by a lien upon property located in this

Commonwealth[.]” 41 P.S. § 101 (as amended September 8, 2008). The

amended statute defined “base figure” as “two hundred seventeen thousand

eight hundred seventy-three dollars ($217,873), as adjusted annually for

inflation by the department through notice published in the Pennsylvania

Bulletin.” Id.

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mortgage was not a “residential mortgage” under the Act.6 In so finding,

the trial court determined that, when the legislature amended section 101 in

2008, it did not manifest an intent that the amendment apply retroactively.

See Trial Court Opinion, 2/6/17, at 2. The trial court observed that this

conclusion was supported by the reasoning employed in two federal district

court cases, Murphy v. Bank of America, N.A., 2016 WL 1020969 (E.D.

Pa., March 14, 2016),7 and Trunzo v. Citi Mortg., 43 F.Supp.3d 517 (W.D.

Pa. 2014),8 which it found persuasive. See Trial Court Opinion, 2/6/17, at

2.

The Johnsons filed a timely notice of appeal. Since the trial court did

not order the Johnsons to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, the court did not isssue a Pa.R.A.P. 1925(a)

____________________________________________

6 The trial court determined that, based upon its ruling on the first

preliminary objection, the remaining preliminary objections were moot. See

Trial Court Opinion, 2/6/17, at 3.

7 In Murphy, the United States District Court for the Eastern District of

Pennsylvania held that a mortgage executed in 2006 for $53,200 was not a

“residential mortgage” under Act 6, because the 2008 amendment to the Act

did not apply retroactively. In so ruling, the district court determined that

because “the Pennsylvania General Assembly made no clear and manifest

intention to make the 2008 Act 6 amendments retroactive, we must apply

the definition of ‘residential mortgage’ as it existed in 2006.” Murphy,

supra at *5-7.

8 In Trunzo, the United States District Court for the Western District of

Pennsylvania held that a mortgage executed in 2007 for $69,900 was not a

“residential mortgage” under Act 6, because the 2008 amendment to the Act

did not apply retroactively. Trunzo, supra at 535-37.

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opinion, and instead entered an order indicating its reliance on its February

6, 2017 opinion and order. This matter is now ready for our review.

The Johnsons raise five questions for our consideration:

1. Did the prior decisions of the Pennsylvania appellate courts,

and the Pennsylvania agencies that were delegated by the

Legislature to regulate Act 6, as amended in 2008[,]

erroneous[ly] interpreted [sic] the statutory language of new

Act 6?

2. Did the lower court err when it concluded that a district court

decision discussing considerably different issues under Act 6

enacted in 1974, as amended, with respect to quite different

loan transactions[,] constitute error as a matter of law?

3. Did the lower court err in holding that the general rule that

contracts cannot be regulated apply [sic] to the contracts of

highly regulated banks engaged in mortgage financing?

4. Did the lower court err in holding that the general rule that

the attorney fee terms of a contract cannot be regulated

although the Pennsylvania Supreme Court held that, because

an attorney has no vested rights in the attorney fee terms,

they can be regulated?

5. Did the lower court err when it failed to follow Supreme

[C]ourt’s earlier mandate and remand in [Glover, supra]?

Appellants’ brief at 2.9

____________________________________________

9 Notably, the issues raised in the Johnsons’ statement of the questions

involved do not correspond to the headings included in their brief. Further,

upon a thorough review of the record, including all of the Johnsons’ written

filings and the notes of testimony of the October 31, 2016 hearing, we

conclude that their third and fourth issues were not raised before the trial

court, and are therefore waived. See Pa.R.A.P. 302(a) (“Issues not raised is

the lower court are waived and cannot be raised for the first time on

appeal.”). Although the Johnsons made a brief reference to the contracts

(Footnote Continued Next Page)

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Our scope and standard of review following a trial court’s ruling on

preliminary objections in the nature of a demurrer is well settled:

Our standard of review of an order of the trial court

overruling or [sustaining] preliminary objections is to determine

whether the trial court committed an error of law. When

considering the appropriateness of a ruling on preliminary

objections, the appellate court must apply the same standard as

the trial court.

Preliminary objections in the nature of a demurrer test the

legal sufficiency of the complaint. When considering preliminary

objections, all material facts set forth in the challenged pleadings

are admitted as true, as well as all inferences reasonably

deducible therefrom. Preliminary objections which seek the

dismissal of a cause of action should be sustained only in cases

in which it is clear and free from doubt that the pleader will be

unable to prove facts legally sufficient to establish the right to

(Footnote Continued) _______________________

clause in their reply in support of motion for reconsideration, the reference

was insufficient to preserve the issue for our review. See Prince George

Ctr. v. United States Gypsum Co. (In re Prudential Ins. Co. of Am.),

704 A.2d 141, 145 (Pa.Super. 1997) (holding that issues raised initially in a

petition for reconsideration are beyond the scope of appellate jurisdiction

and declining to consider them on appeal); Meyer-Chatfield Corp. v. Bank

Fin. Servs. Grp., 143 A.3d 930, 938 n.4 (Pa.Super. 2016) (holding that

raising an issue for the first time in a motion for reconsideration does not

rescue that issue from waiver). Contrary to the Johnsons’ representation

therein that the contracts clause had been “discussed in previous briefings,”

we can find no other reference to it in the record before us. Notably, in the

Statement of the Case included in their brief, the Johnsons do not specify

the place in the record where this issue was raised before the trial court and

preserved for our review. See Pa.R.A.P. 2117 (c) (requiring, inter alia, the

appellant to specify in the statement of the case “[t]he state of the

proceedings in the court of first instance . . . at which, and the manner in

which, the questions sought to be reviewed were raised[,] . . . [t]he method

of raising them[,] . . . [and] the way they were passed upon by the

court.”). Finally, the Johnsons’ fifth issue is not addressed in their appellate

brief; therefore, it is waived on appeal. See Pa.R.A.P. 2119(a) (stating that

the parties’ briefs must include a discussion of each question raised on

appeal and a citation of authorities as are deemed pertinent).

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relief. If any doubt exists as to whether a demurrer should be

sustained, it should be resolved in favor of overruling the

preliminary objections.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011) (internal

citation omitted).

Also implicated herein is a question of statutory interpretation of

certain provisions of Act 6. As statutory interpretation is a question of law,

our standard of review is de novo and our scope of review is plenary. See

e.g., Roverano v. John Crane, Inc., 177 A.3d 892, 903 (Pa.Super. 2017).

The Johnsons contend that the trial court erred by applying the version

of section 101 in effect at the time their mortgage was executed in 2002,

rather than the version of section 101 in effect at the time the foreclosure

action was initiated in 2009. Since the prior version of section 101 had been

repealed and replaced, they argue the trial court was required to apply the

amended terms of section 101. They further claim that nothing in the 2008

amendment indicates an intent by the legislature to restrict its effect to

mortgages executed after to its effective date, and maintain that the

absence of such language indicates an intention that the 2008 amendment

apply to all foreclosure actions upon its effective date. Appellant’s brief at

13-14.

In support of their position, the Johnsons highlight the protective

provisions contained in sections 403, 404, 406, and 407 of Act 6, which

utilize the term “residential mortgage” in concert with the commencement of

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a foreclosure action, and claim that these provisions suggest that the

effective date of the amendment need only precede the commencement of

foreclosure proceedings. They further note that section 405, which prohibits

prepayment penalties, specifically exempts mortgages entered into prior to

the effective date of the amendment, and provides “[r]esidential mortgage

obligations contracted for on or after the effective date of this act may

be prepaid without penalty or other charge for such prepayment at any time

before the end of the period of the loan.” Appellants’ brief at 15 (citing 41

P.S. § 405) (emphasis in original). The Johnsons assert that the inclusion of

this language in section 405 supports their argument that the legislature

could have included provisions explicitly prohibiting retroactive application in

other sections of the Act, such as section 406, but declined to do so.

The Johnsons also challenge the trial court’s reliance on Murphy,

supra, and Trunzo, supra, on the basis that those cases applied federal

decisional law that did not involve foreclosure actions.10 Finally, the

Johnsons argue that the trial court’s interpretation of Act 6 fails to effectuate

the Act’s remedial purpose, and “would leave an enormous number of

homeowners without protection under Act 6.” Appellants’ brief at 24.

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10 The district courts in Murphy and Trunzo relied upon In re Harris-

Penna, 446 B.R. 178 (Bankr.E.D.Pa. 2009), and In re Grayboyes, 2006

WL 437546 (E.D.Pa. Feb. 22, 2006), neither of which involved foreclosure

proceedings, for the proposition that, in determining whether Act 6 applies,

courts look to the principal amount set at the time the mortgage transaction

took place.

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The central question presented in this dispute is whether the trial court

should have construed Act 6 by employing the definition of “residential

mortgage” provided by the version of section 101 in effect at the time the

Johnsons executed their mortgage, or the version of section 101 in effect at

the time foreclosure proceedings were initiated. Under the version in effect

in 2002, the Johnsons’ $74,000 mortgage exceeded the $50,000 limit

imposed by Act 6, and hence did not constitute a “residential mortgage”

subject to the Act’s provisions. Conversely, if the 2008 version controls, the

Johnsons’ $74,000 mortgage qualifies as a “residential mortgage” under the

increased $217,873 limit of Act 6, thereby permitting the Johnsons to pursue

a cause of action against Phelan under section 406 for excessive attorney

fees.

Initially, we turn to the Statutory Construction Act for guidance. When

conducting statutory interpretation, “our object is to ascertain the

Legislature’s intent, giving effect to all of the relevant statutory provisions.”

Glover, supra at 199 (citing 1 Pa.C.S. § 1921(a)). “Generally, a statute’s

plain language provides the best indication of legislative intent.” Roverano,

supra at 903 (citation omitted). However, we are also mindful that the

Pennsylvania legislature has expressly prohibited retroactive application of

statutory provisions unless it has clearly and manifestly provided for such

application. See 1 Pa.C.S. § 1926 (“No statute shall be construed to be

retroactive unless clearly and manifestly so intended by the General

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Assembly.”). Our courts have repeatedly interpreted this provision as

creating a strong presumption of prospective statutory application only,

absent clear language to the contrary. Brangs v. Brangs, 595 A.2d 115,

119 (Pa.Super. 1991).

More central to the point, however, is that we are not dealing with a

newly created statute; rather, we are dealing with an amendment to a

statute. The legislature has clarified that amendments to statutory

provisions do not become effective until the date of their enactment:

Whenever a section or part of a statute is amended, the

amendment shall be construed as merging into the original

statute, become a part thereof, and replace the part amended,

and the remainder of the original statute and the amendment

shall be read together and viewed as one statute passed at one

time; but the portions of the statute which were not altered by

the amendment shall be construed as effective from the time of

their original enactment, and the new provisions shall be

construed as effective only from the date when the

amendment became effective.

1 Pa.C.S. § 1953 (emphasis added). Thus, whereas Pennsylvania recognizes

a presumption against retroactive application of statutes, 1 Pa.C.S. § 1926,

it specifically provides that amendments are only effective prospectively

from their effective date. See 1 Pa.C.S. § 1953.

Under the version of section 101 in effect when the Johnsons executed

their mortgage in 2002, a “residential mortgage” was defined, in pertinent

part, as “an obligation to pay a sum of money in an original bona fide

principal amount of fifty thousand dollars ($50,000) or less, evidenced by a

security document and secured by a lien upon property located in this

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Commonwealth[.]” 41 P.S. § 101 (as amended April 6, 1979, effective until

September 7, 2008).

In 2008, section 101 was amended, and the term “residential

mortgage” was redefined as “an obligation to pay a sum of money in an

original bona fide principal amount of the base figure or less, evidenced by a

security document and secured by a lien upon property located in this

Commonwealth[.]” 41 P.S. § 101 (as amended effective September 8,

2008). The amended statute defined “base figure” as “two hundred

seventeen thousand eight hundred seventy-three dollars ($217,873), as

adjusted annually for inflation by the department through notice published in

the Pennsylvania Bulletin.” Id.

Our review of the 2008 amendment to Act 6 reveals no indication by

the General Assembly that the increased monetary limit for “residential

mortgages” was “clearly and manifestly” intended to apply retroactively to

mortgages executed prior to its effective date. See 1 Pa.C.S. § 1926. We

are mindful that Act 6 is a remedial statute, which should be liberally

construed to effectuate its aims. See Glover, supra at 200 (noting that Act

6 is a usury law, designed to protect borrowers against improper mortgage

lending practices). Nevertheless, without express legislative intent that the

amendment should apply retroactively, section 1953 requires that we

construe the amendment as taking effect on the date selected by the

General Assembly, i.e., September 8, 2008. See 1 Pa.C.S. § 1953.

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The Johnsons’ reliance on First Nat’l Bank of Pennsylvania v.

Flanagan, 528 A.2d 134, 137 (Pa. 1987), and Ministers and Missionaries

Benefit Board of the American Baptist Churches v. Goldsworthy, 385

A.2d 358 (Pa.Super. 1978) (overruled by Marra v. Stocker, 615 A.2d 326

(Pa. 1992)), is misplaced. In Flanagan, our Supreme Court considered two

amendments to section 101 of Act 6. The first amendment, effective

October 5, 1978, altered the definition of “residential mortgage” in a manner

that excluded business loans. The second amendment, effective April 6,

1979, restored the definition to its pre-1978 version, which made Act 6

applicable to business loans. Plaintiffs secured a business loan in March

1979, during the period in which Act 6 did not apply to such loans. Notably,

the 1979 amendment included language which evidenced a specific intent by

the legislature that the amendment should apply retroactively: “This Act

shall take effect immediately and shall be retroactive to and including

October 5, 1978.” Flanagan, supra, at 137 (citing 41 P.S. § 101 (as

amended April 6, 1979)). Nevertheless, our Supreme Court ruled that the

amendment, if applied retroactively, would void the agreement of guaranty

securing the loan in question and, therefore, change the intentions of the

parties. Id. at 138. On this basis, the Court ruled that retroactive

application of the amendment “violate[d] the contracts clause and is

unconstitutional.” Id.

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The Flanagan Court also rejected the appellant’s argument that the

lender should be estopped from arguing that the amendment did not apply

retroactively because it had complied with certain notice requirements

imposed by the 1979 amendment. The High Court ruled that the notice

requirements in the amendment could be applied retroactively because they

were merely procedural in nature. Flanagan, supra at 138 (“The

requirement of notice of the lender’s intention to foreclose in § 403 of [Act

6] is . . . a procedural requirement and does not interfere with or deny any

substantive rights.”). Here, we are not dealing with an amendment which

imposes mere notice or disclosure requirements.11 Therefore, we find

Flanagan inapposite.

In Ministers and Missionaries, we considered whether certain notice

requirements in Act 6 could be retroactively applied to mortgages executed

before the effective date of the Act. Under sections 403 and 404, a

residential mortgage lender is precluded from accelerating the maturity date

of the mortgage debt and commencing foreclosure proceedings, despite the

existence of a default, until after the mortgagor is given notice of the default

and his right to cure it. We ruled that retroactive application of the notice

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11 For this reason we are unpersuaded by the Johnsons’ reference to a 2011

letter from the Pennsylvania Department of Banking and Pennsylvania

Housing Finance Agency to entities holding mortgages secured by

Pennsylvania real property, notifying them that of the requirement that they

comply with Act 6’s notice requirements.

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requirement did not impair the contractual rights of the mortgage lender

because it merely postponed the exercise of its right to accelerate until after

the mortgagor had received notice of and opportunity to cure a default.

Ministers and Missionaries, supra at 363.12 Thus, Ministers and

Missionaries highlights the principle that, in certain circumstances,

procedural laws, such as notice requirements, may be applied retroactively.

However, as we are not dealing with an amendment which imposes mere

notice or disclosure requirements, we find Ministers and Missionaries

inapposite.

We therefore conclude that the Johnsons’ mortgage is not a residential

mortgage protected by Act 6. The mortgage simply did not meet section

101’s definition of a “residential mortgage” because the principal amount

exceeded the $50,000 limit for residential mortgages in place at the time the

transaction was consummated in 2002. The 2008 amendment to Act 6

cannot be retroactively applied to their 2002 mortgage. Since the Johnsons’

mortgage is not a “residential mortgage” under the Act, they are without a

predicate violation of Act 6 for which they can recover under section 502.

____________________________________________

12 In Ministers and Missionaries, supra, the notice provided by the

mortgage lender did not comply with sections 403 and 404. Nevertheless,

the court ruled that “where acceleration is predicated upon a default which

cannot be cured, the reason for and the necessity of the information

[required by Act 6] disappears.” Id. at 364. In Marra, supra, our

Supreme Court rejected the suggestion in Ministers and Missionaries that

strict compliance with the notice requirements of section 403 of Act 6 is not

mandated. See Marra, supra at 194.

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We therefore hold that the trial court did not err in sustaining Phelan’s

preliminary objections in the nature of a demurrer on the basis that the

Johnsons failed to state a claim under the Act.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2018

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