York Legal Record Opinions

JP MORGAN CHASE BANK NATIONAL ASSOCIATION, Plaintiff v. JAMES P. MILLER and SUSAN D. MILLER, Defendants

Petition to Intervene – Mortgage Foreclosure

No. 2010-SU-1062-06

 

1. This case involves a Petition to Intervene filed in a mortgage foreclosure action, in which the Interveners claimed to have a legally enforceable right to a property, a portion of which was subject to the foreclosure action.

 

1. Pennsylvania Rule of Civil Procedure 2327 provides that a person not a party to an action at any time while the action is pending “shall be permitted to intervene” if “the determination of such action may affect any legally enforceable interest of such person whether or not such a person may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4).

 

1. The Court held that, since Respondents have not shown cause why the Petition should not be granted, i.e. have not shown that Petitioner does not have a legally enforceable interest that may be affected by the determination of the mortgage foreclosure proceeding, the Petition to Intervene will be granted.

 

________________________________________________________________

 

In the Court of Common Pleas of York County, Pennsylvania, Civil Division; JP MORGAN CHASE BANK NATIONAL ASSOCIATION, Plaintiff v. JAMES P. MILLER and SUSAN D. MILLER, Defendants;

Petition to Intervene – Mortgage Foreclosure

 

 

APPEARANCES:

NEIL A. SLENKER, Esq.

JEFFREY C. BRIGHT, Esq.

For the Petitioner

 

BLAIR H. GRANGER, Esq.

CARRIE J. LOSINGER, Esq.

For the Defendant

 

 

 

OPINION GRANTING PETITION TO INTERVENE

 

On September 27, 2011, the Court held a hearing on the Petition to Intervene in the above captioned matter filed by Lisa A. Fitz, Executrix of the Estate of Donald A. Swartz.  The Petition will be granted.

Facts and Procedural History

On June 27, 2011, Lisa A. Fitz filed a Petition to Intervene in the JP Morgan Bank v. Miller mortgage foreclosure action.  Petitioner Fitz is the Executrix of the Estate of Donald A. Swartz, which holds a mortgage on property subject to the underlying foreclosure action.  The Court issued a Rule to Show Cause why Petitioner was not entitled to intervene in the action and scheduled a hearing for August 25, 2011.  The hearing was continued to September 27, 2011, on which date the Court heard testimony and accepted certain exhibits which have been reviewed.  The Court permitted the Parties to submit supplemental Briefs, which have also been reviewed.

JPMorgan Chase Bank, National Association, (“Bank”) filed the underlying Complaint in Mortgage Foreclosure action against Defendants James P. Miller and Susan D. Miller on March 8, 2010.  The property subject to the action is located at 1282 Klines Road, Wrightsville, Pennsylvania, 17368.  Petitioner also holds a mortgage on that property.  The Bank’s mortgage was granted and recorded in 2003, prior to the mortgage held by the Decedent’s Estate. Nevertheless, the mortgage held by the Bank is secured by only a portion of the tract of land at issue, approximately 8.2742 acres of the 18.1542 acres that comprise the tract of land at issue.  Petitioners argue that in 1998 the 8.2742 acres of property subject to the Bank’s mortgage were formally joined with an additional 9.88 acres of land pursuant to a Lot-Addition Plan.[1] Respondent believes that the two parcels of land remain separate, as evidenced by their being identified by different identification numbers in the Lot-Addition Plan.  The Court finds that the Lot-Addition Plan clearly joins the two tracts of land and prohibits their being separated “unless all applicable zoning and subdivision and land development regulations are satisfied.” (Pet. Exh. 1).

On August 11, 2006, the Decedent lent the Defendants $100,000 pursuant to a Promissory Note secured by a mortgage on the total 18.1542 acres of the property at issue.  Unlike the Bank’s mortgage, the mortgage of the Estate covers the entirety of the Defendant’s property located at 128 Klines Road.  Based on her belief that a legally enforceable interest of the Estate might be affected by the disposition of the mortgage foreclosure action, the Petitioner filed this Petition to Intervene.

The Petition to Intervene will be granted.

Discussion

Pennsylvania Rule of Civil Procedure 2327 provides that a person not a party to an action at any time while the action is pending “shall be permitted to intervene” if “the determination of such action may affect any legally enforceable interest of such person whether or not such a person may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4).  The Court notes that both Parties in their filings and during the September 17, 2011, hearing argued about the legality of the Bank’s mortgage.  In its post-hearing Supplemental Brief, the Estate directs the Court to focus on the question of whether the Estate has a legally enforceable interest and should be allowed to intervene pursuant to Pa. R. Civ. P. No. 2327(4).  Respondents argue that the legality of its mortgage was relied on by the Estate as a basis for intervention and that the question of the legality of the mortgage should be determined by the Court at this time.  The Court will not determine the legality of the Bank’s mortgage because the question of intervention can be decided without making such a determination.

The Court finds that the Petitioner does have a legally enforceable interest that may be affected by the determination of the mortgage foreclosure action filed by the Bank.  As to the portion of the property subject to the Bank’s mortgage, the Estate is a junior lienholder.  Priority among similar instruments, i.e. mortgages, is determined with reference to first come first serve principles. See 42 Pa.C.S.A. §8141.  It would be incorrect to say that any junior lienholder has an interest that allows it to intervene, as the law clearly intends junior lienholders to stand outside the foreclosure proceedings of a senior lienholder.  The rights of a junior lienholder are divested by a senior lienholder’s sale of the property subject to the mortgages at a sheriff’s sale. See 42 Pa. C.S.A. §8152; Irwin Union Nat. Bank and Trust Co. v. Famous, 4 A.3d 1099 (Super. 2010).  To the extent that the purchase price received from the foreclosure sale exceeds the value of the lien held by the primary lienholder, the excess (after costs of sale, etc.) are distributed to junior lienholders in order of their priority.  See Pa. R. Civ. P. No. 3136; State Street Bank v. Petrey, 819 A.2d 581 (Super. 2003).  The primary means of enforcing an “interest” in real property after a junior mortgage is extinguished by judicial sale is to file exceptions to the schedule of distribution of proceeds.  The preceding would be the Estate’s only recourse as a junior lienholder if the Estate’s mortgage was secured by property identical to that securing the Bank’s mortgage, but the unique facts of this specific case do permit the Estate to intervene.  The Estate will be affected by the foreclosure in a way greater than junior lienholders generally: the property subject to its mortgage will be split.

First, the Bank’s mortgage is secured by only a portion of the total property which secures the Estate’s mortgage; therefore, the mortgage held by the Estate will be divested to the extent of the Bank’s interest once the Bank’s mortgage is foreclosed upon.  Second, the foreclosure of the portion of land subject to the Bank’s mortgage will result in the remaining portion of the land in which the Estate continues to have a mortgage becoming land-locked without road access.  Third, the result of the foreclosure will be an illegal subdivision of the previous whole tract of land pursuant to the local zoning ordinances.

As discussed above, the Court will not rule on the legality of the mortgage at this time.  Nonetheless, the Court has reviewed the case law identified by the Parties concerning illegal subdivisions, specifically Guido v. Township of Sandy, 584 Pa. 93, 880 A.2d 1220 (2005), as well as other relevant case law.  Both Parties have argued that Guido supports their position on the legality of the Bank’s mortgage.  The Court does not believe the opinion in Guido actually provides any such clear directives as those argued by the Parties.  In Guido, the Supreme Court held that the exercise of an option to buy a portion of a tract of land worked as a division-in-fact and effectuated a transfer of the property to the option holder relating back to the date that the agreement containing the option to buy was entered, despite the fact that Township Planning Commission had not at that time approved the subdivision as required by local ordinances.  Guido, 584 Pa. at 103-106.  Note that, unlike the present case, the Planning Commission did eventually approve the subdivision.  Nevertheless, the Supreme Court could not say whether “an interested governmental body may view a particular division-in-fact as illegal” because of non-compliance with local ordinances governing subdivisions of land. Id. at 105.  The Court held “that division-in-fact in no way impels governmentally sanctioned Subdivision.” Id. at 107-108.  The essential aspect of the Court’s determination is that while a court can determine when division-in-fact occurred it cannot enter an Order approving an application to subdivide property pursuant to local ordinances.  Concluding the opinion, the Supreme Court stated that the Court was leaving “the parties with the opportunity to seek further relief pursuant to the modification procedure established by the MPC and Sandy Township and/or to complete the underlying litigation seeking specific performance, consistently with this decision.” Id. at 108.  Whether the Supreme Court believed that the underlying litigation regarding specific performance would be successful or unsuccessful based on the opinion is not apparent.  Accordingly, whether a finding of a division-in-fact renders a contract that would otherwise be illegal legal is unclear.

Without addressing the legality of the mortgage, if, for example, Respondents are found to have caused a division-in-fact by virtue of executing the mortgage on a portion of Defendant’s property, the Petitioner’s mortgage on an undivided tract of land may become by virtue of that decision a mortgage on two separate tracts of land.  Further, if a division-in-fact is found, the Township may decide that there was an illegal subdivision and Petitioner may be therefore limited in the exercise of its rights in the now illegally subdivided portion of land in which it continues to have a mortgage.  Pennsylvania Rule of Civil Procedure 2327(4) requires the Court to permit a person to intervene if the determination of the underlying action “may” affect a legally enforceable interest of the Petitioner.  As Respondents have not shown cause why the Petition should not be granted, i.e. have not shown that Petitioner does not have a legally enforceable interest that may be affected by the determination of the mortgage foreclosure proceeding, the Petition to Intervene will be granted.

Conclusion

In conclusion, the Court will GRANT the Petition to Intervene filed on June 27, 2011.  An Order consistent with this Opinion will be entered.

BY THE COURT,

 

 

 

____________________________________

Stephen P. Linebaugh, Judge

Dated: _________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA

 

JP MORGAN CHASE BANK,                        :

NATIONAL ASSOCIATION                         : No. 2010-SU-1062-06

Plaintiff                        :

:

vs.                                                :

: CIVIL ACTION – LAW

JAMES P. MILLER                                                :

AND SUSAN D. MILLER                                    :

Defendants                        :

 

 

 

 

 

ORDER GRANTING PETITION TO INTERVENE

AND NOW, this _______ day of ______________ 2011, in accordance with the attached Opinion, the Petition to Intervene filed by Lisa A. Fitz, Executrix of the Estate of Donald A. Swartz, in GRANTED.

Copies of this Order and Opinion shall be forwarded to counsel of record.

BY THE COURT,

 

 

 

____________________________________

Stephen P. Linebaugh, Judge

ANTOINETTA SMITH, TRACY LANDIS, AND JOANNE BORDERS, Plaintiffs v. YORK COUNTY DEPARTMENT OF ELECTIONS, Defendant

Election – Write-in Votes – Recount

 

No. 2011-MI-000174-55

 

1. Michael Helfrich, a successful “write in” candidate in the election, won the position on the York City Council by 6 votes; Mr. Helfrich received 1,003 votes and Ms. Smith received 997 votes.  A recount of the election was held on December 12, 2011; the same results were reported.  Mr. Helfrich filed a Petition to Intervene in this case on December 14, 2011, which this Court granted by Order dated December 16, 2011.

 

1. Petitioners Antoinetta (Toni) Smith, a candidate in the election at issue, Tracy Landis and Joanne Borders filed a Petition to Recanvass, Recount and Redress York City Council Elections on December 1, 2011.  The Department of Elections and Voter Registration and York County Board of Elections filed an Answer on December 5, 2011.

 

1. Petitioner Smith sought to have certain write-in votes disregarded while Mr. Helfrich sought to have certain write-in votes that were not counted included.

 

1. On December 16, 2011, after hearing testimony on the issue of whether certain write-in votes should or should not have been counted in the totals for Mr. Helfrich , the Court held that it would not discard any of the votes counted for Mr. Helfrich and would add one vote to the Mr. Helfrich’s total.

 

 

­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________

 

 

 

 

 

 

 

 

In the Court of Common Pleas of York County, Pennsylvania, Civil Division; ANTOINETTA SMITH, TRACY LANDIS, AND JOANNE BORDERS, Plaintiffs v. YORK COUNTY DEPARTMENT OF ELECTIONS, Defendant;

Election – Write-in Votes – Recount.

 

APPEARANCES:

MARISA G. BUTTON, Esquire

For Petitioners

 

MICHAEL W. FLANNELLY, Esquire

For Defendant York County Department of Elections

 

CHARLES J. HOBBS, Esquire

For Michael Helfrich, Intervener

 

 

OPINION IN SUPPORT OF ORDER CERTIFYING

YORK CITY COUNCIL ELECTION RESULTS

 

Facts and Procedural History

Petitioners Antoinetta (Toni) Smith, a candidate in the election at issue, Tracy Landis and Joanne Borders filed a Petition to Recanvass, Recount and Redress York City Council Elections on December 1, 2011.  The Department of Elections and Voter Registration and York County Board of Elections filed an Answer on December 5, 2011.

 

Michael Helfrich, a successful “write in” candidate in the election, won the position on the City Council by 6 votes; Mr. Helfrich received 1,003 votes and Ms. Smith received 997 votes.  A recount of the election was held on December 12, 2011; the same results were reported.  Mr. Helfrich filed a Petition to Intervene in this case on December 14, 2011, which this Court granted by Order dated December 16, 2011.

 

This Court heard testimony on the issue of whether certain write-in votes should or should not have been counted in the totals for Mr. Helfrich on December 16, 2011.  Petitioner Smith seeks to have certain write-in votes disregarded while Mr. Helfrich seeks to have certain write-in votes that were not counted included.  The Court will not discard any of the votes counted for Mr. Helfrich and will add one vote to the Mr. Helfrich’s total.

 

Issue Presented

Whether Certain Write-In Votes Counted or Discarded by the Board of Elections Should be Discarded or Counted in the Tallying of the Number of Votes for Candidate Michael Helfrich.

Discussion

In determining whether the write-in votes counted or discarded by the Board of Elections were properly tallied, this Court must consider above all the intent of the voter.  At issue in this case are the write-in ballots for write-in candidate Michael Helfrich.  It should be noted at the outset that this case is unique among the case law discussed below as the write-in votes were accomplished by electronic means.  Essentially, a voter “typed-in” their write-in vote on a computer voting machine using a touchscreen “QWERTY” keyboard.  There are no Pennsylvania cases dealing with computerized electronic voting machines.  All of the existing case law in Pennsylvania deals exclusively with handwritten write-in votes.

The Court notes that there are specific issues that arise when one types in a vote: typographical errors, failing to make a space between first and last names,[1] misspelling of names, using only the last name,[2] missing letters, accidently hitting the key adjacent to the intended letter,[3] and citizens (especially older citizens) lacking familiarity with computer typing.[4]

At the hearing before this Court on December 16, 2011, each vote counted for Michael Helfrich which Petitioners believe should not have been counted were meticulously reviewed.  Upon questioning, the York City Bureau of Elections and Voter Registration Acting Director testified that in deciding to include or not include a vote, the “standard” used was whether the intent of the voter was clear.  This Court is tasked with the same inquiry and must determine whether the names contained in the ballots counted as votes for Mr. Helfrich did actually reflect the intent of the voter to vote for Mr. Helfrich.

While 25 P.S. §3031.12(b)(3) allows a voter to write-in a candidate on a ballot, the statute does not provide a standard for determining whether the name written incorrectly or incompletely serves as a vote for a specific candidate.  Whether an incorrect or incomplete name is counted for a candidate is governed by case law.

 

In Appeal of McCracken, 370 Pa. 562, 566 (1952), the Supreme Court stated that:

where the voter’s intent is found, it should not be defeated by the fact that the name of the candidate is misspelled, the wrong initials employed or some other or slightly different name of like or similar pronunciation has been written instead of that of the candidate actualy [sic.] intended to be voted for…A ballot may be counted which contains a candidate’s surname only although there are other persons in the borough having the same surname, it being shown that there was no other person of such name who was a candidate for the same or any other office; and so also if only the middle name of the candidate is wrong or if the first name is abbreviated or if the wrong initials are used.

 

Id. at 567 (citing 9 Ruling Cas Law, page 1144).  The Supreme Court has further stated in numerous cases that the policy of the Commonwealth is “to protect the elective franchise,” Petition of Cioppa, 533 Pa. 564, 568, 626 A.2d 146, 148 (1993), that election laws “‘will be construed liberally in favor of the right to vote,’” Appeal of James, 377 Pa. 405, 408 (1954) (quoting 29 C.J.S., Elections, § 7, p. 27), and that “‘[m]arking a ballot in voting is not a matter of precision engineering but of an unmistakable registration of the voter’s will in substantial conformity to the statutory requirements.’” Shambach v. Bickhart, 845 A.2d 793, 798-99 (2004) (citing Appeal of Gallagher, 41 A.2d 630, 632 (1945)).  The Supreme Court stated in Appeal of James that the power to discard a ballot for an irregularity “’must be exercised very sparingly and with the idea in mind that either an individual voter or a group of voters are not to be disfranchised at an election except for compelling reasons.’” 377 Pa. at 409-410 (citing Case of Bauman Election Contest, 351 Pa. 451, 454-455).  The manifest intention of the voter determines to whom the vote is attributed, not the number of mistakes made by a voter in transcribing the name of the candidate.

In reviewing this case law the Court recognizes the imperative that no standard should be enforced that would result in the disenfranchisement of the citizens of Pennsylvania.  For reasons further discussed below, the Court finds that the intent of the voters responsible for the ballots questioned by Petitioners was to vote for Michael Helfrich and to discard those votes for spelling errors or other mistakes and omissions would serve to disenfranchise those voters.

 

The Court also finds that a vote[5] not counted by the Board of Elections clearly evinces the intent of the voter to cast a vote for Michael Helfrich and the Court will thereby order that the vote be counted for Mr. Helfrich in the final certified election totals.

In reaching the above findings the Court considered various facts presented by this case.  First, there was no other candidate for city council with the name Michael Helfrich, or even with the last name Helfrich or some near variant.[6] Second, only seven registered voters in York have the last name of “Helfrich,” there are no other “Michael Helfrichs,” and no “Helfricks” are registered to vote.  Third, Mr. Helfrich actively campaigned, sending out thousands of mailers, personally handing out flyers, making robo-calls, and campaigning door-to-door.

 

Petitioners argue that, despite these facts, the mistakes, omissions, and flaws in the names typed in by some voters were egregious enough to warrant the discarding of those votes.  Among the mistakes commonly pointed to by Petitioners was the inversion of letters or the first and last name, the absence of a space between the first and last name, misspellings of “Michael” and/or “Helfrich,” and misspellings that, when spoken aloud, did not phonetically sound identical to “Michael Helfrich.”

In Dayhoff v. Weaver, 808 A.2d 1002 (2002), the Commonwealth Court found that the trial court had erred in declining to count write-in ballots for Candidate Dayhoff where voters had either misspelled his name or omitted his first name.  The Commonwealth Court found that the facts of the case supported the factual finding that the voters had intended to vote for Dayhoff. Id. at 1011.  In the case, only two registered voters had a last name of “Dayhoff,” the candidate and his wife.  And, as to the misspelled “Dehoff,” only 5 registered voters had that name.  Candidate Dayhoff testified that people commonly believe that Dehoff is the proper spelling of his name based on pronunciation.  In this case, Mr. Helfrich similarly testified about his oft misspelled first and last names, often the phonetically identical “Micheal” and “Helfrick.”  The Commonwealth Court also addressed the misspelling of the candidate’s name or the use of only his last name.  Citing Appeal of McCracken, the Commonwealth Court stated that “[t]he fact that there were other persons with the last name ‘Dayhoff’ or ‘Dehoff’ does not undermine a finding of voter intent.” Id.  Since there was no evidence that Mrs. Dayhoff or any Dehoff was also running for the same elected position, the Court determined that the voters evinced the intent to vote for Candidate Dayhoff and that those misspelled or last name only votes should be counted.  The Commonwealth Court further counseled that “not to count these votes gives too much weight to a ‘technicality’ against which result our Supreme Court warned in Appeal of James.” Id. at 1012.

The Court would also like to note that the Elections Board did closely and manually review the write-in votes for Mr. Helfrich.  This review resulted in the rejection of several write-in votes that, had they been counted, would almost certainly been attributed to Mr. Helfrich.  For example, votes for CHAEHHELFRICH,[7] HELFRIGHT,[8] and MATT HELFRICH[9] were discarded.

Based on a review of the relevant case law, taking into consideration the unique concerns posed by write-in ballots that are typed into electronic voting machines, this Court finds that all the write-in votes counted for Mr. Helfrich were appropriately attributed to him and that one additional vote not counted clearly evinces that voters intent to vote for Mr. Helfrich and will therefore be counted in order to avoid disenfranchising those votes.

Conclusion

In conclusion, the Court will Order the Certification of the Results of the York County City Council Elections as counted during the December 12, 2011 recount with the addition of the vote for ”MCHEL HELFRICK” (45535 MRHMH

York city 11-0 331) to the total votes for Michael Helfrich.  An Order consistent

with this Opinion will be entered.

BY THE COURT,

 

 

 

__________________________________

Stephen P. Linebaugh, President Judge

 

Dated: __________________

 

 

 

 

 

 

 

 

ORDER CERTIFYING ELECTION RESULTS

AND NOW, this 19th day of December 2011, in accordance with the attached Opinion, IT IS ORDERED that:

The results for the York City Council election shall be CERTIFIED by the York County Board of Elections in accordance with the Opinion filed of even date with and as counted during the December 12, 2011 recount with the addition of the vote for ”MCHEL HELFRICK” (45535 MRHMH York city 11-0 331) be added to the total votes for Michael Helfrich.  .

Copies of this Order and Opinion shall be forwarded to counsel of record.

BY THE COURT,

__________________________________

Stephen P. Linebaugh, President Judge