Elizabeth Forward S.D. v. C.A. Moore v. Maxanna Properties, Inc. ~ Appeal of: C.A. Moore ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elizabeth Forward School District :
:
v. : No. 1128 C.D. 2021
: Submitted: May 17, 2022
Craig A. Moore :
:
v. :
:
Maxanna Properties, Inc. :
:
Appeal of: Craig A. Moore :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: June 15, 2022
Craig A. Moore appeals from an order of the Court of Common Pleas
of Allegheny County (trial court) denying his petition to set aside a sheriff sale of
the property located at 519 Rothy Drive, Elizabeth, PA 15037 (Property). Because
Moore did not timely petition the trial court to set aside the sale and because there
are no apparent grounds to void the sale, we affirm.
BACKGROUND1
The Elizabeth Forward School District (District) commenced this in
rem action against the Property for unpaid taxes pursuant to the Municipal Claims
and Tax Liens Act (MCTLA).2 The District named Moore the defendant as owner
of the Property. Following the entry of a default judgment in the amount of
1
Except as noted, the parties do not dispute the factual or procedural background to this
case.
2
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §7101-7105.
$6,245.77, as well as a writ of execution, the Sheriff of Allegheny County served
Moore with a notice of sheriff sale.
The sale was originally scheduled for November 4, 2019. However, on
November 1, 2019, Moore petitioned for federal bankruptcy protection, resulting in
an automatic stay of these proceedings.3 Following at least two continuances,4 the
trial court granted a motion by the District for a special order pursuant to
Pennsylvania Rule of Civil Procedure 3129.3(a), scheduling the sheriff sale for
August 3, 2020, and relieving the District of any further notice requirements. See
Trial Ct. Order, 7/20/20 (Special Order).
On August 3, 2020, Maxanna Properties, Inc. purchased the Property at
the sheriff sale. The sheriff acknowledged delivery of the deed on August 26, 2020.
Nearly a year after delivery of the Property deed to Maxanna, Moore
filed a petition to set aside the sheriff sale on August 20, 2021. Moore asserted that
the sale was void on two grounds: (1) the sale was “barred by the Covid-19
moratorium . . . staying foreclosures and other proceedings relating to the
dispossession of residential real estate,” and (2) the District failed to comply with
the notice requirements set forth in Pennsylvania Rules of Civil Procedure 3129.2
and 3129.3(b)(1). Pet. to Set Aside Sheriff’s Sale, 8/20/21, at 6, 7-9.
The trial court denied the petition, concluding that the Special Order
had obviated the relevant notice requirements pursuant to Rule 3129.3(a), that the
3
See 11 U.S.C. § 362. Moore filed in the United States Bankruptcy Court for the Western
District of Pennsylvania at No. 19-24297-TPA. The case was dismissed on June 11, 2020. See
Maxanna’s Resp. to Pet to Set Aside Sheriff’s Sale, 8/26/21, Ex. C (docket entries from No. 19-
24297-TPA).
4
The parties dispute the number of delays announced by the sheriff. Compare Mot. for
Special Order, 7/17/20 (the District averring a continuance on November 4, 2019, and another on
March 2, 2020), with Pet. to Set Aside Sheriff’s Sale, 8/20/21 (Moore averring a third continuance
on June 1, 2020). We need not resolve this dispute, as it is irrelevant to our disposition.
2
sheriff sale of the Property was lawful, and that Moore’s petition to set aside the sale
was untimely. See Trial Ct. Mem., 10/13/21, at 1-2 (regarding the petition’s
untimeliness, the trial court cited Pa.R.C.P. 3132). This appeal followed.
ISSUES
Moore contends that the trial court erred in denying his petition to set
aside the sheriff sale as untimely. Moore’s Br. at 11. According to Moore, because
the sale of the Property is void, he may challenge it “at any time.” Id. He therefore
asks this Court to reverse the trial court and remand with instructions to set aside the
sheriff sale. See id. at 20.
Moore asserts several grounds that purportedly render the sheriff sale
of the Property void as a matter of law. See id. at 11. For example, according to
Moore, at the time of the sale, Governor Tom Wolf had declared a COVID-19
moratorium “staying foreclosures and other proceedings relating to the
dispossession of residential real estate[.]” Id. at 12. Moore also asserts that the
District failed to comply with the notice provisions set forth in the Pennsylvania
Rules of Civil Procedure. See id. at 14-17.
DISCUSSION
Our review of a trial court’s order in a tax sale matter is limited to
determining whether the trial court abused its discretion, rendered a decision with a
lack of supporting evidence, or clearly erred as a matter of law. City of Reading v.
Zeiber, 62 A.3d 481, 481 n.1 (Pa. Cmwlth. 2013). We exercise de novo review over
questions of law. See In re Sale of Real Estate by Lackawanna Cnty. Tax Claim
Bureau, 255 A.3d 619, 625 n.5 (Pa. Cmwlth. 2021).
3
Timeliness of Moore’s Petition
A petition to set aside a sheriff sale is an equitable proceeding. U.S.
Nat’l Bank Ass’n v. United Hands Cmty. Land Tr., 129 A.3d 627, 632 (Pa. Cmwlth.
2015). Generally, a party in interest must petition the trial court for relief “before
delivery . . . of the sheriff’s deed to real property.” Pa.R.C.P. 3132. Here, Moore
petitioned the trial court nearly a year after the sheriff acknowledged delivery of the
deed, far beyond the period identified in Rule 3132. Thus, Moore’s petition was
untimely.
However, “a petitioner may invoke the equitable powers of the court
upon establishing an exception to this time bar for fraud or a lack of authority to
make the sale.” Wells Fargo Bank N.A. v. Zumar, 205 A.3d 1241, 1245 (Pa. Super.
2019) (cleaned up).5 Therefore, we turn to Moore’s several claims challenging that
the sheriff sale is void.
Governor’s Moratorium
Moore asserts that Governor Wolf had issued a moratorium that barred
the sheriff sale of the Property. See Moore’s Br. at 12. We disagree.6
5
Decisions of the Superior Court are not binding on this Court but “offer persuasive
precedent where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of Review,
180 A.3d 545, 550 (Pa. Cmwlth. 2018).
6
Moore presents no persuasive argument in support of this bald assertion. He does not
address the substance of the Governor’s executive actions and fails to cite any legal precedent
holding that the Governor had prohibited the sheriff sale of property for failure to pay real estate
taxes. Rather, he references proceedings in which litigants had challenged the Governor’s
authority to issue executive orders following his proclamation of the COVID-19 emergency. See,
e.g., Moore’s Br. at 13 (citing Friends of Danny Devito v. Wolf, 227 A.3d 872 (Pa. 2020) (holding
that the governor had statutory authority to issue an executive order compelling the closure of non-
life-sustaining businesses to reduce the spread of COVID-19)).
4
In March 2020, Governor Wolf proclaimed a disaster emergency amid
the emerging COVID-19 pandemic.7 Thereafter, the Governor issued numerous
executive orders pursuant to his emergency powers under the Emergency
Management Services Code.8 The Governor issued one such order on July 9, 2020,
which suspended the notice requirements “for specified actions related to the
dispossession of property” until August 31, 2020. Order of the Governor of the
Commonwealth of Pennsylvania Staying Notice Requirements for Specified Actions
Related to the Dispossession of Property (July 9, 2020),
https://www.governor.pa.gov/wp-content/uploads/2020/07/20200709-TWW-
eviction-order.pdf (last visited May 5, 2022) (July Order).9
Upon review, the language of the July Order is clear and specific. The
Governor suspended “the notice requirements mandated by Act 6 and Act 91 . . .
that must be satisfied prior to the initiation of [mortgage] foreclosure actions.” July
Order § 1.10 The Governor also suspended “the notice requirements mandated by
the Landlord and Tenant Act of 1951 and the Manufactured Home Community
Rights Act . . . thereby tolling the ability to commence the timelines necessary for
7
See Governor Wolf, “Proclamation of Disaster Emergency,” Mar. 6, 2020,
Commonwealth of Pennsylvania Off. of the Governor, https://www.governor.pa.gov/wp-
content/uploads/2020/03/20200306-COVID19-Digital-Proclamation.pdf (last visited May 5,
2022) (“Governor’s Proclamation”).
8
See Act of Nov. 26, 1978, P.L. 1332, No. 323, codified as amended at 35 Pa.C.S. §§
7101-79a33.
9
The July Order extended provisions set forth in an earlier order. See Order of the Governor
of the Commonwealth of Pennsylvania for Staying the Notice Requirements for Certain Actions
Related to the Dispossession of Property (May 7, 2020), https://www.governor.pa.gov/wp-
content/uploads/2020/05/20200507-TWW-dispossession-of-property-order.pdf (last visited May
5, 2022) (May Order).
10
See Loan Interest & Protection Law, Act of January 30, 1974, P.L. 13, No. 6, as amended,
41 P.S. §§ 101-605 (Act 6); Homeowners Emergency Assistance Act, Act of December 23, 1983,
P.L. 385, No. 91, as amended, 35 P.S. § 1680.401c-1680.410c (Act 91).
5
the initiation of residential eviction proceedings.” Id. § 2.11 The Governor did not
suspend, stay, postpone, or otherwise delay the sheriff sale of properties in
proceedings brought pursuant to the MCTLA. See generally id.
Here, the sheriff sale of the Property took place on August 3, 2020,
while the July Order remained in effect. However, the plain language of the July
Order did not implicate or curtail the District’s rights under the MCTLA. Thus,
Moore’s claim is without merit.
Notice Requirements for Sheriff Sale
In addition to certain provisions of the MCTLA not at issue here, the
Pennsylvania Rules of Civil Procedure govern notice with respect to sheriff sales of
real property. For example, Rule 3129.1 requires a plaintiff who pursues a writ of
execution against real property to file an affidavit that identifies the owner of the
property and every other person with a lien or interest in the property. Pa.R.C.P.
3129.1. Rule 3129.2 sets forth the manner and timing of service to all those persons
identified in the affidavit. Pa.R.C.P. 3129.2.
When an initial sale is postponed, Rule 3129.3 requires a plaintiff to
issue “new notice . . . as provided by Rule 3129.2” with two exceptions. Pa.R.C.P.
3129.3(a). First, a plaintiff may petition the trial court for a special order dispensing
with further notice requirements. Id. Second, new notice is not required when a sale
is continued to a date certain within 130 days of the scheduled sale, provided (1)
there is a public announcement of the new date at the time and place of the originally
scheduled sale and (2) there have not been more than two such continuances.
Pa.R.C.P. 3129.3(b)(1).
11
See The Landlord and Tenant Act of 1951, Act of April 6, 1951, P.L. 69, as amended,
68 P.S. §§ 250.101-397; Manufactured Home Community Rights Act, Act of November 24, 1976,
P.L. 1176, as amended, 68 P.S. §§ 398.1-398.10.3.
6
Together, these notice requirements “were intended to protect
fundamental rights of due process by insuring that persons with an interest in real
estate would receive adequate notice before being deprived of their property.” Wells
Fargo Bank, N.A. v. Ferreri, 199 A.3d 892, 896 (Pa. Super. 2018) (citation
omitted).12 Further, “there must be strict compliance with the notice provisions . . .
to guard against the deprivation of property without due process of law.”
Difenderfer v. Carbon Cnty. Tax Claim Bureau, 789 A.2d 366, 368 (Pa. Cmwlth
2001) (citation omitted) (discussing notice requirements of the Real Estate Tax Sale
Law13).
1. The new notice exception at Rule 3129.3(b)(1) is irrelevant.
Moore asserts that his due process rights were violated because the
District was required to issue new notice of the sheriff sale scheduled for August 3,
2020. See Moore’s Br. at 14-17. According to Moore, because there were more
than two postponements of the sheriff sale, the District was unable to invoke the
exception set forth in Rule 3129.3(b). See id.Moore’s assertion does not accurately reflect the trial court’s decision
in this case. In denying Moore’s petition to set aside the sheriff sale, the trial court
explained that new notice was not required because it had issued a special order
pursuant to Rule 3129.3(a). See Trial Ct. Mem. at 1-2; see also Special Order.
Therefore, because the exception at Rule 3129.3(b) is irrelevant, Moore’s claim is
devoid of merit, and no relief is due.
12
We cite Ferreri for its persuasive authority. See Lerch, 180 A.3d at 550.
13
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803. The
MCTLA and the Real Estate Tax Sale Law (RETSL) are similar in that their overall purpose is the
collection of delinquent taxes. The MCTLA applies to first and second class counties, whereas
the RETSL applies to all other counties. See generally Lohr v. Saratoga Partners, L.P., 238 A.3d
1198 (Pa. 2020); City of Allentown v. Kauth, 874 A.2d 164 (Pa. Cmwlth. 2005).
7
2. Moore has waived any challenge to the Special Order.
Moore asserts that the special order exception does not apply because
“the District misled both the public and [trial court] Judge Della Vecchia.” Moore’s
Br. at 18. According to Moore, in seeking a special order, the District “falsely
averred” that the sheriff sale of the Property had been postponed twice, when in
reality the sale had been postponed three times. Id. at 17. Moore further suggests
that this alleged subterfuge deprived him of an opportunity to challenge the Special
Order prior to its issuance by the trial court. See id. at 18 (citing in support Bayview
Loan Servs., LLC v. Good Home, LLC, 2019 WL 1384530 (Pa. Super., No. 832
WDA 2018, filed Mar. 27, 2019) (unreported) (Bayview Loan).14
Moore did not raise these arguments before the trial court. See Pet. to
Set Aside Sheriff’s Sale. Accordingly, we deem them waived. Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the first time
on appeal.”); see Lin v. Bd. of Revision of Taxes of City of Phila., 137 A.3d 637, 642
(Pa. Cmwlth. 2016) (stating that this Court “may sua sponte refuse to address an
issue raised on appeal that was not raised and preserved below”) (citation omitted);
14
In citing Bayview Loan, Moore has violated Pennsylvania Rule of Appellate Procedure
126(b), which provides that a party may cite to an unpublished, non-precedential decision of the
Superior Court “filed after May 1, 2019[.]” Pa.R.A.P. 126(b) (emphasis added). The Superior
Court filed Bayview Loan on March 27, 2019.
Further, Moore’s reliance on Bayview Loan is misplaced. In that case, the Superior Court
determined that a special order did not excuse the notice requirements of the Pennsylvania Rules
of Civil Procedure because the plaintiff had not informed the defendant’s attorney of record that
the plaintiff intended to request a special order, thus violating Pennsylvania Rule of Civil
Procedure 440(a)(1)(i) and depriving the defendant of an opportunity to challenge the issuance of
a special order. Bayview Loan, 2019 WL 1384530, at *4. Here, the District served Moore notice
of its intent to seek a special order on July 7, 2020. See Mot. for Special Order, 7/17/20, Notice
of Presentation. At the time, Moore was pro se. Therefore, the District did not violate Rule 440
or deprive Moore of an opportunity to challenge the District’s Motion for Special Order. See
Pa.R.C.P. 440(a)(2)(i) (“If there is no attorney of record, service shall be made by . . . mailing a
copy to . . . the residence or place of business of the party[.]”).
8
see also, e.g., City of Phila. v. Williams (Pa. Cmwlth., No. 863 C.D. 2017, filed June
27, 2018) (unreported) (concluding that certain service claims in a sheriff sale case
were waived on appeal).15,16
CONCLUSION
Moore did not timely petition the trial court to set aside the sheriff sale
of the Property. Further, we discern no apparent grounds upon which to void the
sale to Maxanna. Accordingly, we affirm the trial court’s order denying Moore’s
petition.
LORI A. DUMAS, Judge
15
We may cite unreported decisions of this Court for their persuasive value in accordance
with Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a).
16
Absent waiver, we note further that even if Moore is correct in asserting that there were
three postponements of the sale, that fact would not preclude the trial court from issuing a special
order. There are no particular requirements for a special order. See Pa.R.C.P. 3129.3, Explanatory
Comment 1989 (“[The special order exception] gives the court discretion to allow postponement
of the sale without new notice in appropriate cases.”).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elizabeth Forward School District :
:
v. : No. 1128 C.D. 2021
:
Craig A. Moore :
:
v. :
:
Maxanna Properties, Inc. :
:
Appeal of: Craig A. Moore :
ORDER
AND NOW, this 15th day of June, 2022, the Order of the Court of
Common Pleas of Allegheny County, entered September 10, 2021, which denied the
Petition to Set Aside Sheriff’s Sale filed by Craig A. Moore, is AFFIRMED.
LORI A. DUMAS, Judge