Metro Bank v. Howard, D., Jr. ( 2018 )

J-A04016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
METRO BANK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOUGLASS E. HOWARD, JR., :
ADMINISTRATOR OF THE ESTATE :
OF MARGARET A. HOWARD, AND : No. 975 MDA 2017
ALL UNKNOWN HEIRS TO THE
ESTATE OF MARGARET A. HOWARD,
DECEASED
Appellant
Appeal from the Order Entered May 18, 2017
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2014 CV 7968 MF
BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 01, 2018
Appellant Douglass E. Howard, Jr.1 appeals pro se from the order
denying his petition to set aside the sale of property located on 400 Beaver
Road in Harrisburg (the property). At the time the underlying foreclosure
action was commenced, the property was part of the estate (the estate) of
Appellant’s deceased mother, Margaret Howard (Decedent). Appellant raises
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* Retired Senior Judge assigned to the Superior Court.
1 Throughout the litigation of this case, the parties have used different
captions although a review of the certified record does not show that any
changes to the caption have been officially made. Accordingly, we have
amended the caption in this appeal to reflect the caption of the September
23, 2014 complaint as it was originally filed in the trial court.
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numerous claims asserting, in relevant part, that the trial court erred in
precluding him from representing the estate in foreclosure proceedings and in
preventing him from representing his own interest in the property after he
transferred the property from the estate to himself. We affirm in part, vacate
in part, and remand for further proceedings consistent with this memorandum.
On August 29, 2014, Appellee Metro Bank2 filed a complaint in mortgage
foreclosure against Anita Schwenk, Appellant’s sister, as executrix of the
subject estate.3 This complaint was served on both Schwenk and Appellant.
On September 16, 2014, Appellant filed pro se preliminary objections to
Appellee’s complaint. He claimed, among other things, that the complaint
improperly named Schwenk as the executrix.4
On September 23, 2014, Appellee filed an amended complaint naming
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2Metro Bank initiated the action but was later bought out by First National
Bank.
3In Appellant’s brief, he refers to “related litigation [in] CV-2013-0875” that
purportedly included an action in ejectment. Appellant’s Brief at 10.
4 Appellant claims that he was named representative in “the settlement
agreement for CV-2013-0875.” Appellant’s Brief at 10. However, the certified
record discloses no further information regarding this prior action.
Additionally, the certified record contains no indication that Appellant was
formally recognized as the representative of the estate. In any event, both
Appellant and Appellee, consistently proceeded as if Appellant represented the
estate. Appellant is not licensed to practice law but acted pro se throughout
the proceedings related to this appeal.
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Appellant as the executor of the estate.5 On October 9, 2014, Appellant filed
preliminary objections to the amended complaint. The trial court overruled
Appellant’s preliminary objections on February 18, 2015, and directed that
Appellant “file a responsive pleading to the Complaint within twenty (20) days
of the date of this Order.” Order, 2/19/15.
On March 6, 2015, Appellant filed a “Responsive Pleading” to the
amended complaint. On March 23, 2015, Appellee filed preliminary objections
to the Appellant’s Responsive Pleading. Appellee argued that the trial court
should strike Appellant’s Responsive Pleading for failure to comply with the
Rules of Civil Procedure. In particular, Appellee asserted that the Responsive
Pleading did not respond in any meaningful way to Appellee’s amended
complaint, included irrelevant and impertinent allegations, and included other
allegations that were insufficiently pled.
On June 22, 2015, the trial court scheduled a hearing on Appellee’s
preliminary objections for July 15, 2015. On July 6, 2015, Appellee filed a
motion to continue the hearing due to a scheduling conflict. The trial court
granted Appellee’s motion on July 14, 2015, and rescheduled the hearing for
September 3, 2015.
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5 Appellee refers to this filing as an amended complaint but the document is
labeled “Complaint in Mortgage Foreclosure.”
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On August 31, 2015, Appellant filed a motion to continue the hearing.6
Appellant averred that on August 23, 2015, he suffered a heart attack and
was hospitalized until August 26, 2015. See Motion for Continuance, 8/23/15,
at 1. Appellant stated that “he d[id] not wish to potentially aggravate the
medical condition or risk the need for medical attention in the courthouse.”
Id. at 1-2.
On September 3, 2015, the trial court apparently convened a hearing.
That same day, the trial court denied Appellant’s motion to continue the
hearing.7
On September 9, 2015, Appellee filed a “Motion to Strike” requesting
that the trial court strike the Responsive Pleading, prohibit Appellant from
filing further pleadings in this matter as he was not an attorney, and order the
estate to retain counsel and file an answer to the amended complaint. On
September 10, 2015, the court entered an order stating it would not entertain
Appellee’s motion as it failed to comply with Dauphin County Local Rule
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6 On August 31, 2015, Appellant also filed a motion to stay the sale of the
property by the Dauphin County Tax Claim Bureau, which the trial court denied
on September 3, 2015. On September 3, 2015, the trial court denied
Appellant’s motion because the Dauphin County Tax Claim Bureau was not a
party to the matter.
7 The trial court did not set forth its reasoning denying the motion for
continuance.
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208.2(d) requiring that Appellee certify that the motion and proposed order
were disclosed to Appellee.8
On September 10, 2015, Appellant filed a “Request for Reconsideration
of the Denial of [Appellant’s August 31, 2015] Motion for Continuance.”
Appellant claimed that after he suffered a heart attack, Appellee’s counsel
indicated that he would concur in the continuance but did not do so.9
On October 14, 2015, the trial court sustained Appellee’s preliminary
objections to Appellant’s responsive pleading and struck Appellant’s
Responsive Pleading. The trial court further stated:
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8Dauphin County Local Rule 208.2(d) regarding certification for uncontested
motions states:
All motions shall contain a certification indicating that the moving
party has disclosed the full text of the motion and the proposed
order to all parties by facsimile or electronic communication, and
that concurrence to both the motion and proposed order has been
given or denied by each party. If facsimile or electronic
communication is not possible, a copy of the motion and proposed
order shall be sent by mail. If the other party fails to respond to
the inquiry regarding concurrence within a reasonable time, this
fact must be contained in the motion.
Dauphin Cty. L.R. 208.2(d).
The trial court here found that Appellee’s motion did not include a certification
indicating it “had disclosed the full text of the motion and the proposed order
to all parties” or “that concurrence to both the motion and proposed order had
been given or denied by each party.” Order, 9/10/15.
9 A review of the certified record does not show that the trial court ruled on
Appellant’s September 10, 2015 Request for Reconsideration of the Denial of
the Defendant’s Motion for Continuance.
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In addition, upon it being brought to the [c]ourt’s attention that
[Appellant], the Administrator of [the estate], is representing the
[e]state pro se, yet is not an attorney licensed in this
Commonwealth, it is hereby ORDERED that [Appellant] may not
represent the [e]state, and is barred from filing any further
pleadings. See, In re Estate of Rowley, 84 A.3d [337] (Pa.
Commw. Ct. 2013) (holding that an administrator of an estate
may not represent the estate pro se, and that doing so constitutes
the unauthorized practice of law). The [e]state is hereby directed
that it may proceed in this matter by retaining an attorney
licensed in this Commonwealth, with that attorney entering his or
her appearance and filing a responsive pleading to [Appellee]’s
Complaint within forty-five (45) days of the date of this Order. If
no attorney enters his or her appearance and files a responsive
pleading with[in] forty-five (45) days of the date of this order[],
then [Appellee] shall be entitled to file a praecipe for default
judgment pursuant to Pa.R.C.P. 1037 without any further notice
to the [e]state.
Order, 10/14/15.
On November 10, 2015, Appellant filed an “Appeal of the Order Granted
on 1[4] October 2015” (Appeal) and a “Motion to Vacate the Order Granted
on 1[4] October 2015” (Motion), which raised the same claims. Specifically,
Appellant argued that: (1) counsel for Appellee had initially agreed to
Appellant’s motion for continuance but later appeared and argued at the
September 3, 2015 hearing; and (2) the trial court initially denied Appellee’s
September 9, 2015 motion to strike, but later granted the motion on October
14, 2015, without issuing an order to show cause. See Appeal of the Order
Granted on 1[4] October 2015, 11/10/15, 1-2; Motion to Vacate the Order
Granted on 1[4] October 2015; 11/10/15, 1-2. Appellant further claimed that
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the trial court erred in precluding him from representing the estate pro se and
directing the estate to obtain counsel.10
The trial court declined to consider Appellant’s November 10, 2015
Appeal and Motion. The court regarded the Appeal as a notice of appeal that
had to be filed with the Prothonotary in the form required by Pa.R.A.P. 904(a).
The court further concluded that Appellant’s Motion failed to comply with
Dauphin County Local Rule 208.2(d) requiring certification of disclosure of the
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10Specifically, Appellant noted that: (1) Bass v. Leatherwood, 788 F.3d 228
(6th Cir. 2015), held that a pro se defendant may represent an estate if there
are no other persons or entities who have an interest in the estate and would
be harmed by such representation; (2) an article from Law360 discussed
Lituchy v. Estate of Lituchy, 61 So. 3d 506 (Fla. Dist. Ct. App. 2011) and
showed there is a trend in allowing pro se parties to represent an estate when
they were the sole beneficiaries; (3) the only other “potential beneficiary” had
agreed to not object to any actions taken by Appellant, thus leaving him as
the remaining beneficiary; (4) none of the remaining creditors have a claim
that could be pursued against the property, and they cannot be harmed by
the outcome of the litigation; and (5) there were no funds in the estate to hire
counsel and if Appellant could not represent the estate pro se the estate would
have no representation. Appeal of the Order Granted on 1[4] October 2015,
11/10/15, at 2-4; Mot. to Vacate the Order Granted on 1[4] October 2015;
11/10/15, 2-4.
Appellant also asserted that if the trial court barred him from representing his
own interests, then he would “demand[] a directive to the Commonwealth
Court to demand the Dauphin County District Attorney to investigate the
criminal allegations presented to it by [Appellant].” Appeal of the Order
Granted on 1[4] October 2015, 11/10/15, at 1-5.
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motion and proposed order. The court entered orders dismissing the Appeal
and Motion on November 25, 2015.11
On December 7, 2015, Appellee filed a praecipe to enter default
judgment pursuant to the October 14, 2015 order. A judgment in favor of
Appellee and against Appellant in the amount of $34,677.87 was entered on
December 7, 2015.
On December 29, 2015, Appellant filed a “Motion to Vacate the Order
Granted on 7 December 2013.” On January 7, 2016, the trial court entered
an order stating it would not entertain Appellant’s December 29, 2015 “Motion
to Vacate the Order Granted on 7 December 201[5]” because the default
judgment was entered upon Appellee’s praecipe and not by a court order. The
court further stated that “should [Appellant] desire the court to consider
striking the default judgment entered on December 7, 2015 a motion must be
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11On November 30, 2015, Appellant filed a notice of appeal from the October
14, 2015 order sustaining Appellee’s preliminary objections, dismissing
Appellant’s responsive pleading, and directing that Appellant could not
represent the estate pro se. On December 8, 2015, Appellant also filed a
motion to vacate the October 14, 2015 order, which the trial court did not
entertain in light of Appellant’s November 30, 2015 appeal.
On May 4, 2016, this Court quashed Appellant’s appeal from the October
14, 2015 order. We explained that while a default judgment was subsequently
entered on December 7, 2015, “an appeal does not lie from entry of default
judgment but rather from a denial of a petition for relief from default
judgment.” Order, 5/4/16 (citations omitted). Accordingly, we concluded that
Appellant’s appeal was improperly taken from an interlocutory order. Id. Our
order further stated that “[t]o the extent [A]ppellant requested various forms
of relief in his answer to this Court’s show cause order . . . such requests are
DENIED.” Order, 5/4/16.
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filed in conformance with Pa.R.C.P. 208.1 and Dauphin County Local Rule
208.3.” Order 1/7/16.
On January 15, 2016, Appellant again filed a “Motion to Vacate the Order
Granted on December 7, 201[5].” On March 2, 2016, Appellant filed a “Motion
to Vacate the Judgment granted on 7 December 201[5].” The trial court did
not entertain either of these motions for failure to comply with local rules.
On April 1, 2016, Appellant filed another “Motion to Vacate the Order
Granted on 1[4] October 2015” raising the same arguments he had raised in
his previous motions to vacate the October 14, 2015 order. The trial court
denied this motion on May 17, 2016.
On April 28, 2016, Appellee filed a praecipe for writ of execution, an
affidavit pursuant to Pa.R.C.P. 3129.1,12 and a notice of the sheriff’s sale. The
sheriff’s sale was originally scheduled for July 21, 2016.
On July 20, 2016, the day before the sheriff’s sale was to take place,
Appellant transferred the deed of the property from the estate to himself. See
Motion to Reassess Damages, 1/13/17, Ex. A (containing deed of property
dated July 20, 2016).
On August 18, 2016, Appellant filed a “Motion for a Stay Upon the Sale.”
Appellant purported to proceed in his individual capacity, rather than as the
representative of the estate. Appellant claimed that: (1) he had been barred
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12Pa.R.C.P. 3129.1 sets forth the general rules and requirements for the sale
of real property, including provisions for notice and the form of affidavit
required.
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from representing his own interest in the estate because there were
insufficient funds in the estate to hire counsel to represent the estate; (2) the
trial court granted the motion to strike after it had already denied the same
motion; (3) the present motion was only representing himself and his own
interest in the property; and (4) he would file for bankruptcy should the trial
court not grant his motion. Motion for a Stay Upon the Sale, 8/18/16.
Appellant’s motion also changed the caption of the case to reflect himself as
an individual defendant in the matter, but he did not formally move to amend
the pleadings.
On September 7, 2016, Appellant filed a Chapter 13 voluntary petition
for an individual in bankruptcy court. See Bankruptcy Petition #: 1:16-bk-
03676-RNO. Counsel for Appellee entered an appearance in the bankruptcy
proceeding and, on November 7, 2016, filed a motion for relief from automatic
stay. On December 1, 2016, the bankruptcy court granted Appellee’s motion,
which it later amended on December 13, 2016. Id.
On January 13, 2017, Appellee filed a motion to reassess damages.
Appellee argued that since the initiation of the mortgage foreclosure action it
had incurred additional costs and expenses because it had to “litigate the
matter in state court in order to reduce the claim to judgment, monitor and
determine strategy with respect to [Appellant]’s quashed appeal with the
Superior Court, and seek and obtain relief from the automatic stay in
[Appellant]’s bankruptcy proceeding.” Motion to Reassess Damages, 1/13/17,
at 5 ¶ 24. Appellee sought to reassess damages in the amount of $57,421.64.
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Id. at 5 ¶ 25. On February 21, 2017, the trial court granted Appellee’s motion
to reassess damages.
The sheriff’s sale was held on March 2, 2017. Appellee, now known as
First National Bank, purchased the property for $1,437.25.
On March 20, 2017, Appellant filed the petition to set aside the sale of
the property, which gives rise to this appeal. Appellant claimed that: (1) the
judgment in this matter was gained by fraud and was thus void; (2) the
mortgage contract was garnered through predatory practices and was thus
void; (3) Appellant was the owner and deed-holder of the property because
he transferred the property to himself; (4) Appellant was not violating the
order barring him from representing the estate because he is bringing this
action on behalf of his own interest as heir; (5) the trial court had no basis to
grant the motion to strike because it had previously denied the same motion;
and (6) a hearing should be held to determine the validity of the sale. Petition
to Set Aside Sale of Property, 3/20/17.
On April 6, 2017, Appellee responded to Appellant’s petition to set aside
the sale. Appellee stated that: (1) the loan and mortgage were not procured
by fraud or predatory practices; (2) the doctrines of collateral estoppel and
law of the case preclude Appellant from challenging the underlying judgment;
(3) Appellant lacked standing to set aside the sale on behalf of the estate or
himself; and (4) the July 20, 2016 deed transferring the property from the
estate to Appellant did not impact the underlying judgment against the
property.
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Appellee also raised a new matter in which it argued that: (1) under the
terms of the mortgage agreement, the decedent’s death, as well as the failure
to make monthly payments, constituted default; (2) after Appellee obtained
default judgment, the estate did not file a petition to open or strike the default
judgment; (3) Appellee previously agreed to postpone the sheriff’s sale
originally scheduled for July 21, 2016, because Appellant represented that he
was seeking third-party refinancing, but Appellant transferred the property to
himself; (4) the July 20, 2016 deed was void because the transfer of the
property violated 20 Pa.C.S. § 3356;13 (6) Appellant was not a bona fide
purchaser; (7) the Bankruptcy Court granted Appellee’s motion for relief from
the automatic stay because it asserted that Appellant was attempting to make
the property part of his bankruptcy estate “as part of a scheme to delay,
hinder, and defraud the rightful exercise of [Appellee]’s rights under the
Agreement and Mortgage”; (8) Appellant’s petition to set aside the sale of the
property was untimely and failed to identify a basis for the court to exercise
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13 Section 3356 provides:
In addition to any right conferred by a governing
instrument, if any, the personal representative, in his
individual capacity, may bid for, purchase, take a mortgage
on, lease, or take by exchange, real or personal property
belonging to the estate, subject, however, to the approval
of the court, and under such terms and conditions and after
such reasonable notice to parties in interest as it shall direct.
The court may make an order directing a co-fiduciary, if any,
or the court’s clerk to execute a deed or other appropriate
instrument to the purchasing personal representative.
20 Pa.C.S. § 3356.
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its discretionary powers to set aside a sale; (9) Appellant lacked standing to
pursue the petition; (10) Appellant was estopped from challenging the default
judgment by the doctrines of estoppel, res judicata, and the law of the case;
(11) the relief sought by Appellant was barred by the coordinate jurisdiction
rule; and (12) because Appellant has no right, title, or interest in the property,
he should be prohibited from continued possession of the property. Appellee’s
Answer with New Matter to Petition to Set Aside Sale, 4/6/17, 3-8.
On April 17, 2017, Appellant objected to Appellee’s answer and new
matter. Appellant claimed that: (1) Appellee foreclosed on the property
before Appellant became the estate’s representative and removed the
property from foreclosure; (2) Appellee offered Appellant the opportunity to
cure the loan for approximately $10,000 and Appellant accepted that offer;
(3) Appellant informed Appellee that should he be unable to raise the $10,000
he would seek bankruptcy protection; (4) Appellee did not serve Appellant
with an Act 9114 notice; (5) Appellee did not challenge the transfer of the
property from the estate to Appellant; (6) there was a joint stipulation in which
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14 35 P.S. §§ 1680.401c et seq. See Wells Fargo Bank, N.A. ex rel.
Certificate Holders of Asset Backed Pass – through Certificate Series
2004-MCWI, 966 A.2d 1140, 1142 (Pa. Super. 2009) (“[T]he purpose of an
Act 91 notice is to instruct the mortgagor of different means he may use to
resolve his arrearages in order to avoid foreclosure on his property and also
gives a timetable in which such means must be accomplished.” (citing 35 P.S.
§ 1680.403c; Fish v. Pennsylvania Housing Fin. Agency, 931 A.2d 764,
767 (Pa. Commw. 2007)).
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the parties agreed that Appellee would not challenge the transfer of the
property to Appellant; (7) Appellant’s transfer of the property to himself
should be allowed pursuant to 20 Pa.C.S. § 301(b);15 (8) Appellant had
standing as a direct heir of the estate and by living in the property; (9)
Appellee failed to assert why Appellant was estopped from bringing his claims;
(10) Appellee lacked standing; (11) transfer of the title following the Sheriff’s
sale would be improper while the sale was being challenged; (12) Appellee
failed to exercise in a timely manner its right to demand payment in full
following Decedent’s death;16 (13) Appellee improperly stated that Appellant
transferred the property to himself for $1 because Appellant intended the
transfer to be according to the will and court-ordered joint stipulation but the
clerk required minimum consideration of $1; (14) Appellee deceived the court
by omitting certain facts; (15) Appellee waived most of its claims by making
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15 Section 301(b) provides:
Real estate.--Legal title to all real estate of a decedent
shall pass at his death to his heirs or devisees, subject,
however, to all the powers granted to the personal
representative by this title and lawfully by the will and to all
orders of the court.
20 Pa.C.S. § 301(b).
16 Appellant also claims that there is a joint stipulation where the parties
agreed that the transfer of the property would pass unchallenged to Appellant.
See Objection to Plaintiff/Respondent’s Answer with New Matter to Petition to
Set Aside the Sale of 400 Beaver Road, Harrisburg, PA 17112, 4/17/17 at 2 ¶
5. However, a review of the certified record does not reveal this joint
stipulation.
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Appellant an offer to cure the loan; and (16) Appellee acted maliciously when
it intervened in Appellant’s bankruptcy proceeding. Objection to
Plaintiff/Respondent’s Answer with New Matter to Petition to Set Aside the
Sale of 400 Beaver Road, Harrisburg, PA 17112, 4/17/17, at 1-5.
In Appellant’s objection to Appellee’s response and new matter,
Appellant also raised a new matter. There, Appellant claimed: (1) Appellee
lied at the bankruptcy proceedings; (2) Appellant was unduly deprived of
defending this action; (3) the trial court should have granted him relief for
various reasons; and (4) the statute regarding third-party representation was
used for a purpose for which it was not intended. Id. at 5-8.
On May 18, 2017, the trial court denied Appellant’s petition to set aside
the sale of the property without a hearing.17 On May 22, 2017, Appellant filed
a request for reconsideration, which the trial court also denied.
On June 14, 2017, Appellant filed a notice of appeal. On June 26, 2017,
the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement and, on
July 12, 2017, Appellant complied.18 On August 4, 2017, the trial court filed
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17The trial court did not set forth its reasoning for denying Appellant’s petition
to set aside the sale of the property.
18 Appellant raised the following eleven errors in his 1925(b) statement:
1. Appellant intends to argue that the trial court erred in dismissing the
Appellants’ [sic] demand to set aside the sale.
2. Appellant intends to argues that the trial court originally failed in
dismissing then granting without warning the Appellees’ [sic] motion to
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strike. That is to say it was both judicially improper and that there were
valid precedents to reconsider and overturn or vacate said order that
were unjustly ignored by the trial court.
3. Appellant intends to argue that any argument for not granting the
petition to set aside the sale based upon judicial traditions of not
overturning previous orders within an action are moot regarding the
motion to set aside.
4. Appellant intends to argue that the lower court missed a key detail in the
petition to grant relief filed in 2016 and that in consideration of said
petition the Superior Court should either grant relief outright or remand
that to the trial court.
5. Appellant intends to argue that he was unduly deprived of the right to
represent his interest per the response asking the trial court to
reconsider the order striking him from representing his own interest.
6. Appellant intends to argue that the sale was unduly gained through fraud
perpetuated upon the Federal Bankruptcy Court.
7. Appellant intends to argue that the sale and standing to gain the sale
were done using a void or otherwise void document and that the trial
court erred in not allowing Appellee to address those issues when there
were no funds to hire counsel to do so.
8. Appellant intends to argue that Appellee acted unethically to gain undue
advantage to gain the judgment originally striking Appellant. Specifically
this is regarding issues of concurrence with a motion to continue the
hearing after Appell[ant] had suffered a heart attack in August 2015 very
close to the hearing date set for early September of 2015 per the
undenied response in the court record. Appellee gave verbal concurrence
for the continuance on short notice then showed for and argued at the
hearing per the court record.
9. Appellant intends to argue the points listed in the docketing statement
given to the Superior Court and mailed to Appellee’s current counsel that
reflect and are mostly related to the issues listed here. If the court
desires to view that docketing statement it is Superior Court No. 975
MDA 2017.
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a statement in lieu of a PA.R.A.P. 1925(a) opinion. There, the court stated
that the appeal was untimely and should be dismissed. Statement in Lieu of
1925(a) Op., 8/4/17, at 2. In the alternative, the trial court stated that it had
entered an order barring Appellant from representing the estate pro se and
from filing further pleadings, and that Appellant had failed to follow that order.
Id. at 2-3.
Appellant, in his pro se brief, divides his argument into twenty-five
issues,19 which we address in the following order:
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10. Appellant may, dependent upon need, at his own discretion argue
against every point given by Appellee in their response to the petition to
set aside the sale. Specifically within that document Appellant will likely
address the issue of standing raised by Appellee unless said issue is
waived by Appellee in writing.
11. Should the trial court upon receipt of this document and review the
overall action decide to reconsider and set aside the sale, with or without
concurrence of Appellee, Appell[ant] will withdraw the appeal as needed
without prejudice.
Appellant’s Pa.R.A.P. 1925(b) Statement, 7/12/17, 1-3.
19Appellant sets forth the following statement of questions involved in this
appeal:
1. Did the trial court err in stripping the estate of it’s [sic] only
representation?
2. Was the statute used to strip representation misused and
potentially a loophole for fraud?
3. Were there any procedural errors by the trial court or the
Sheriff’s Office in the processing of the complaint or the
seiazure [sic] of property?
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1. Was the trial court wrong to not grant reconsideration on the
basis of the appeal being submitted?
2. Was it wrong to not grant reconsideration to the order striking?
3. Does the statute cited to strike [A]ppellant enable fraud or
otherwise can it be used to do so?
4. Did the trial court judge retiring during the ongoing litigation
affect the outcome unduly?
5. Did removing the property from the estate change the legal
status of the foreclosure from against the estate to against the
new owner?
6. Was it wrong to not challenge the transfer of the property from
the estate and then sell a property no longer part of a
judgment?
7. Was it improper to sell the property without paying off a
previous lien?
8. Was the sheriff[’s] sale improperly cited?
9. Was the transfer of the deed improper?
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4. Were there sufficient misdeeds or unethical behavior to warrant
dismissal of the complaint and the setting aside of the property
sale gained therein?
Appellant’s Brief at 4.
While Appellant presented four questions in his statement of questions
involved, the argument section of his brief is divided into twenty-five issues.
See Pa.R.A.P. 2111(a) (stating that an appellant’s brief shall contain a
“separately and distinctly entitled . . . [s]tatement of the questions involved”);
2116(a) (“The statement of the questions involved must state concisely the
issues to be resolved[.]”); 2119(a) (“The argument shall be divided into as
many parts as there are questions to be argued[.]”). While, generally, issues
not included in the statement of questions involved are waived, “such a defect
may be overlooked where [an] appellant’s brief suggests the specific issue to
be reviewed and appellant’s failure does not impede our ability to address the
merits of the issue.” Werner v. Werner, 149 A.3d 338, 341 (Pa. Super.
2016). Therefore, we decline to find waiver based on the form of Appellant’s
brief.
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10. Should the lacking of an Act 91 notice compliance be cause
for dismissal?
11. Did the trial court err in allowing [Appellee] to repeatedly
rename the title of the action regarding which party it was
litigating against at will from vs Schwenk to vs Estate of to vs
Howard (Appellant) etc instead of dismissing the action without
prejudice and forcing [Appellee] to start over in a correct
manner and stick with one defendant?
12. Did the trial court err in that in light of [A]ppellant’s affidavit
provided to it, a direct challenge to the [A]ppellee’s standing,
it failed in its judgment by not issuing upon [A]ppellee any
citation to show cause to continue well prior to the motion to
strike, i.e. to prove otherwise against the assertions therein or
exert a proper argument that their standing is otherwise
correct, lawful and untainted by fraud and meets the
requirements of a valid contract according to the
Commonwealth etc?
13. Did the trial court err when it used the transfer of the appeal
to the Superior Court as removing the trial court from having
jurisdiction over the decision on appeal?
14. Is [A]ppellee essentially an unindicted accessory to the
crime of exploitation of the elderly in the manner in which the
mortgage instrument was gained?
15. Does [A]ppellee benefit from unethical actions by counsel?
16. Does the passing of the property that is the subject of the
mortgage foreclosure effectively void or render moot the entire
reason for the order given, i.e. third party representation and
therefore legally subvert or otherwise void the order given
which in turn voids the judgement [sic] gained from said order?
17. Was it wrong for the trial court to dismiss without at least a
hearing for the petition to set aside the sale?
18. Did the trial court violate the [A]ppellant’s right to due
process in initially denying the appeal of the contested order in
the name of local practices?
19. Is the mortgage instrument used to gain standing itself
predatory and therefore void or the product of fraud or a
product of the undue influence of a third party and otherwise
void?
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20. Was it wrong or callous or a symptom of undue bias against
[A]ppellant to deny a continuance request stemming from a
recent medical issue?
21. Was it wrong to effectively grant an order after denying the
request for the same order?
22. Did the trial court err in granting [A]ppellee’s motion to
strike after initially issuing an order rejecting [A]ppellee’s
motion to strike?
23. Did the trial court in issuing the order to strike [A]ppellee
[sic] essentially violate [A]ppellant’s right to due process?
24. Was it wrong to gain relief from the automatic stay through
misrepresentation?
25. Was the trial court wrong to strip the estate of the only
representation available?
Appellant’s Brief at 17-53.
I. Waived Issues
As a prefatory matter, we must determine whether Appellant has
preserved his issues for appellate review. For the reasons that follow, we
conclude that Appellant has waived his first nineteen issues on appeal.
A. Failure to include issues in Pa.R.A.P. 1925(b) statement
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure provides
that if a judge enters an order directing an appellant to file a statement of
errors complained of on appeal, the appellant shall file of record and serve
upon the judge such statement. See Pa.R.A.P. 1925(b). The rule further
provides that the statement shall be filed of record and that any issue not
properly included will be waived. Id.; Commonwealth v. Lord, 719 A.2d
306 (Pa. 1998).
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In Commonwealth v. Schofield, 888 A.2d 771 (Pa. 2005), the
Pennsylvania Supreme Court explained that “the requirement of strict
compliance with Pa.R.A.P.1925(b) guarantees a trial judge’s ability to focus
on the issues raised by the appellant, and thereby, allows for meaningful and
effective appellate review.” Id. at 774. Moreover, the Court in
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005), discussed the need
for uniformity among courts, and that “the system provides litigants with clear
rules regarding what is necessary for compliance and certainty of result for
failure to comply.” Id. at 779-80.
The Pennsylvania Supreme Court has repeatedly reiterated its holding
in Lord that “[a]ny issues not raised in a [Pa.R.A.P.] 1925(b) statement will
be deemed waived.” Lord, 719 A.2d at 309; see Schofield, 888 A.2d at 774
(“[F]ailure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will
result in automatic waiver of the issues raised.”); Castillo, 888 A.2d at 780
(reaffirming the “bright-line rule” set forth in Lord); Commonwealth v.
Butler, 812 A.2d 631 (Pa. 2002) (same); Pa.R.A.P. 1925(b)(4)(vii) (“Issues
not included in the [Rule 1925(b)] Statement . . . are waived.”).
Here, Appellant has waived issues one through sixteen for failure to
include them in his Pa.R.A.P. 1925(b) statement. See Appellant’s Brief at 20-
23, 25, 31-38, 43, 46-47, 49-50; Appellant’s Pa.R.A.P. 1925(b) Statement,
7/12/17, 1-3. Therefore, we are precluded from addressing those issues. See
also Castillo, 888 A.2d at 780; Schofield, 888 A.2d at 774; Butler, 812
A.2d 631; Lord, 719 A.2d at 309
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B. Failure to develop issues
Rule 2119 of the Pennsylvania Rules of Appellate Procedure states that
an argument section shall be composed of discussion and citations to relevant
authority. Pa.R.A.P. 2119. Failure to develop an argument constitutes waiver.
See Burgoyne v. Pinecrest Community Assoc., 924 A.2d 675, 680 n.4
(Pa. Super. 2007). “Although this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status confers no special benefit
upon the appellant.” In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super.
2010) (citation omitted). “This Court will not act as counsel and will not
develop arguments on behalf of an appellant.” Bombar v. West American
Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007) (citation omitted).
In Appellant’s seventeenth issue, his argument consists of two
sentences: “In the petition to set aside the sale there are some serious
allegations of improper activity and other issues . . . . Dismissal without giving
full consideration of the issues raised gives an appearance of taking the easy
way out instead of taking the time to see justice done.” Appellant’s Brief at
29-30.
Appellant fails to explain which “issues raised” in his petition to set aside
the sale of the property have not been considered by the trial court. Further,
Appellant’s analysis section is devoid of any citation to relevant authority.
Therefore, because we cannot act as Appellant’s counsel and develop his
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argument for him, we find this issue waived. See Bombar, 932 A.2d at 93;
Burgoyne, 924 A.2d at 680 n.4; Pa.R.A.P. 2119.
In Appellant’s eighteenth issue, it is unclear what he is arguing. In his
issue, as stated, he appears to be claiming that the trial court erred in not
entertaining his November 10, 2015 Appeal. In his analysis section, however,
he claims that “such actions on the part of the trial court should not be allowed
to stand” and that “the trial court directly in said rejection violated
[A]ppellant’s due process rights.” Appellant’s Brief at 45. Appellant does not
provide any explanation of what “such actions” are or how the trial court
violated his due process. Moreover, Appellant provides no citation to relevant
authority. Accordingly, this issue is waived. See Bombar, 932 A.2d at 93;
Burgoyne, 924 A.2d at 680 n.4; Pa.R.A.P. 2119.
In Appellant’s nineteenth issue, he argues that the mortgage subject of
these proceedings was void because it was a predatory loan. He claims that
the terms of the ten year loan granted to an elderly seventy
seven year old person who was in failing health, on dialysis,
incapable of reading, lacking in comprehension and the
amount of which literally ties up the remainder of the
deceased’s complete income loan amount slightly over her
combined monthly bills and living expenses . . . are pointers
towards the loan being predatory in nature and therefore
void.
Appellant’s Brief at 48 (emphasis omitted). Appellant further argues that he
set forth these facts in his affidavit, which he submitted to the trial court. Id.
Appellant’s argument does not explain why or how the mortgage was a
predatory loan, where the alleged fraud lies, and more importantly, refers to
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no statute or case law to support his argument. Appellant’s bald allegations
are not sufficient to support his conclusory allegations and, as stated above,
we cannot develop his argument for him. See Bombar, 932 A.2d at 93;
Burgoyne, 924 A.2d at 680 n.4; see also Pa.R.A.P. 2119. Even liberally
construing Appellant’s analysis to this issue, the lack of “cogent legal
arguments” and citations to relevant authority “hamper[] our ability to
conduct meaningful appellate review.” See Ullman, 995 A.2d at 1212.
In sum, we decline to consider Appellant’s first nineteen issues based
on Appellant’s failure to comply with Pa.R.A.P. 1925(b) and this Court’s
briefing requirements.
II. Preserved Issues
Appellant preserved issues twenty through twenty-five by including
them in his 1925(b) statement and sufficiently developing them in his brief.
This Court has explained that “[w]hen reviewing a trial court’s ruling on
a petition to set aside a sheriff’s sale, it is recognized that the trial court’s
ruling is one of discretion[.]” Provident Nat. Bank, N.A. v. Song, 832 A.2d
1077, 1081 (Pa. Super. 2003) (citation omitted). “[T]hus[,] a ruling will not
be reversed on appeal absent a clear demonstration of an abuse of that
discretion.” Id. (citation omitted). With this standard of review in mind we
review the merits of the issues Appellant preserved on appeal.
A. Whether the trial court erred in denying Appellant’s
continuance for the hearing on preliminary objections.
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In his twentieth issue, Appellant argues that he had requested that the
September 3, 2015 hearing on the preliminary objections be continued. He
claims that a few weeks prior to the hearing, he suffered a heart attack and
requested a continuance. Appellant’s Brief at 17-18. Appellant claims that he
spoke with counsel for Appellee, who agreed to “call the trial court judge’s law
clerk to concur with the motion for continuance.” Id. at 18. However,
Appellant claims, counsel for Appellee “failed to do so and instead showed to
argue on the scheduled date.” Id. Appellant argues that “[w]hile Appellee’s
actions w[]ere in themselves reprehensible,” the trial court acted with undue
bias in not granting his continuance. Id.
A trial court’s decision to grant or deny a continuance is reviewed for an
abuse of discretion. Ferko-Fox v. Fox, 68 A.3d 917, 925 (Pa. Super. 2013).
“An abuse of discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly unreasonable, or the
results of partiality, prejudice, bias or ill-will.” Id. (citation omitted). This
Court has explained that when determining if the trial court has abused its
discretion in denying a request for a continuance, we consider the following
factors: “whether there was prejudice to the opposing party by a delay,
whether opposing counsel was willing to continue the case, the length of the
delay requested, and the complexities involved in presenting the case.”
Rutyna v. Schweers, 177 A.3d 927, 933 (Pa. Super. 2018) (en banc)
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(quoting Papalia v. Montour Auto. Serv. Co., 682 A.2d 343, 345 (Pa. Super.
1996)).
Here, Appellant argues that counsel for Appellee at the time had orally
agreed to continue the case but that he did not do so and instead showed up
and argued on the day of the preliminary hearing. Appellant’s Brief at 18.
However, there is no evidence that this conversation took place. As for the
length of the delay requested, Appellant did not specify a later time for the
hearing to take place but requested that the continuance be of at least thirty
days. Regarding complexities involved, the present case is a mortgage
foreclosure case that did not present the complexities that the medical
malpractice case in Rutyna did.
Regardless of whether Appellee was amenable to a continuance, we find
no abuse of discretion. The trial court has broad discretion in granting or
denying motions for continuance and decided to deny the motion. See Fox,
68 A.3d at 925. Moreover, nothing was decided at the preliminary hearing
and it was not until after Appellant had filed his “Request for Reconsideration
of the Denial of Defendant’s Motion for Continuance” that the trial court
entered an order granting Appellee’s preliminary objections. See Trial Ct.
Order, 10/14/15. Moreover, Appellant does not argue that he suffered any
prejudice as a result of the continuance not being granted, nor could he, as
the court struck Appellant’s “Responsive Pleading” due to deficiencies and
barred him from continued representation of the estate pro se. See id.
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Therefore, we can glean no abuse of discretion from the court’s denial of
Appellant’s motion for continuance.
B. Whether the trial court erred in denying Appellee’s September
9, 2015 Motion to Strike.
Appellant’s twenty-first though his twenty-third issues are related, and
we discuss them together. Appellant argues that the trial court “reverse[d]
[itself] and grant[ed] the order to strike [A]ppellant from representing his own
interest in the estate.” Appellant’s Brief at 20. He contends that the trial
court denied Appellee’s September 9, 2015 motion to strike because it failed
to comply with local rule 208.2(d) regarding certification. Id. at 39-40.
However, Appellant asserts, the trial court granted the same motion to strike
without “waiting for the motion to be resubmitted” or “without a motion to
show cause.” Id. at 40. He argues that the trial court erred in denying the
motion, and subsequently granting the same motion. Id. at 40-41. Appellant
further argues that because local rules “consider all un-responded to motions
as opposed . . . when the court decided to take up the motion it had denied[,]
it erred in not issuing a citation upon [Appellant] to show cause” and thus
“violated [A]ppellant’s right to due process.” Id. at 41.
Here, Appellee filed preliminary objections to Appellant’s Responsive
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Pleading20 on March 23, 2015. On September 3, 2015, the trial court held a
hearing on the preliminary objections. However, no action was taken at the
time.
On September 9, 2015, Appellee filed a motion to strike. The trial court
entered an order on September 10, 2015 in which it stated that it would not
entertain Appellee’s September 9, 2015 motion to strike because it failed to
comply with local rules regarding certification. See Trial Ct. Order, 9/10/15.
About a month later, on October 14, 2014, the trial court sustained Appellee’s
preliminary objections. In this order, the trial court struck Appellant’s
“Responsive Pleading” for not conforming to the Rules of Civil Procedure. The
order further barred him from representing the estate pro se and from filing
further pleadings.21
Appellant appears to believe that the trial court denied Appellee’s
September 9, 2015 motion to strike, and then granted the same motion when
dismissing his Responsive Pleading. This is incorrect. As noted above, the
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20 Appellant’s Responsive Pleading did not conform to the Rules of Civil
Procedure governing answers. See Pa.R.C.P. 206.2; see also Pa.R.C.P.
1022; 1029(a). Nevertheless, Appellee treated Appellant’s responsive
pleading as an answer to the complaint.
21We note that at the time the trial court entered this October 14, 2015 order
barring Appellant from representing the estate pro se and from filing further
pleadings, Appellant had not yet transferred the property to himself. See Trial
Ct. Order, 10/14/15; Motion to Reassess Damages, 1/13/17 Ex. A (including
deed dated July 20, 2016).
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trial court ruled on two separate filings by Appellee: the March 23, 2015
preliminary objections and the September 9, 2015 motion to strike. The trial
court did not entertain Appellee’s September 9, 2015 motion and granted
Appellee’s March 23, 2015 preliminary objections when dismissing Appellant’s
Responsive Pleading.22 Moreover, as we discuss below, we discern no error in
the trial court’s determination that Appellant could not represent the estate
pro se. Accordingly, these issues are without merit.
C. Whether Appellee made misrepresentations to the
bankruptcy court in order to gain relief from the automatic
stay.
Appellant claims that Appellee made misrepresentations to the
bankruptcy court during Appellant’s chapter 13 bankruptcy proceeding.
Appellant argues that Appellee lied about the following: (1) Appellee insisted
there were no other active liens against the property when in fact the
Pennsylvania Housing Finance Agency had an active lien against the estate;
(2) Appellee had claimed that Appellant had transferred the property in June
and that this transfer delayed the sale of the property, however, the transfer
of the property was in July and did not affect the date the sale was scheduled;
and (3) Appellee had asserted it did not have an actual appraisal price when
the property had been appraised and when Appellee’s gave a “highly
exaggerated” guessed value. Id. at 28-29.
____________________________________________
22Regarding Appellant’s claim that he was precluded from further representing
the estate pro se, we discuss the aspects of the order directing the estate to
obtain counsel below.
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Assuming we could entertain Appellant’s claim, the time to raise them
has long passed. The bankruptcy court entered an order granting Appellee’s
motion for relief from the automatic stay on December 1, 2016, and an
amended order on December 13, 2016. See Fed. R. Bank. P. 8002(a).
D. Whether the trial court erred in barring Appellant from
representing the estate.
In his twenty-fifth issue on appeal, Appellant is essentially challenging
the October 14, 2015 order that, inter alia, directed the estate to obtain
counsel. He argues that there were insufficient funds in the estate to hire
counsel and that by barring him from representing the estate, the estate was
effectively stripped from the only representation it had available.
The October 14, 2015 order, in relevant part, stated:
Douglass Howard, Jr., the Administrator of the Estate of
Margaret A. Howard . . . is representing the Estate pro se,
yet is not an attorney at law licensed in his Commonwealth,
it is hereby ORDERED that Douglass Howard, Jr., may not
represent the Estate, and is barred from filing any further
pleadings. See[] In re Estate of Rowley, 84 A.3d [337]
(Pa. Commw. Ct. 2013) (holding that an administrator of an
estate may not represent the estate pro se, and that doing
so constitutes the unauthorized practice of law). The Estate
is hereby directed that it may proceed in this matter by
retaining an attorney licensed in this Commonwealth, with
that attorney entering his or her appearance and filing a
responsive pleading to the Plaintiff’s Complaint within forty-
five (45) days of the date of this Order. If no attorney enters
his or her appearance and files a responsive pleading
with[in] forty-five (45) days of the date of this Order, then
the Plaintiff shall be entitled to file a praecipe for default
judgment pursuant to Pa.R.C.P. 1037 without any further
notice to the Estate.
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Order, 10/14/15.
The question of whether to permit pro se representation of an estate is
a question of law. See Harkness v. Unemployment Compensation Bd.
Of Review, 920 A.2d 162, 166 n.2 (Pa. 2007) (noting that whether to permit
a non-lawyer to represent an employer in unemployment compensation
proceedings was a matter of law). Accordingly, our standard of review is de
novo and our scope of review is plenary. Id.
In Rowley, the administrator of the estate, Miller, filed a petition to
vacate the judicial tax sale of the property in question. Rowley, 84 A.3d at
338. The Westmoreland County Tax Bureau filed a motion to dismiss Miller’s
petition arguing that Miller was engaging in unauthorized practice of law by
representing the estate. Id. The trial court subsequently entered an order
holding that an estate must be represented by a licensed attorney. Id.
In affirming, the Rowley Court applied the Harkness factors.23 The
Rowley Court explained that “[l]ike a corporation, an estate can only act
____________________________________________
23 The Rowley court discussed the Harkness factors as follows:
[T]he factors our Supreme Court considered in determining
whether a person should be able to represent the interests
of another before an administrative agency were whether
the proceedings by design are intended to be brief and
informal, not intended to be intensely litigated; whether the
evidentiary rules apply; the amounts generally at issue in
proceedings of that type; whether there is prehearing
discovery; whether normally only questions of fact and not
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through an agent; in this case, an administrator. An estate by its very nature
cannot represent itself and, therefore, must be represented by a licensed
attorney, regardless of the relation between the administrator and the
decedent.” Id. (citing Williams v. USP-Lewisburg, 2009 WL 4921316 (M.D.
Pa. Dec. 11, 2009)). The Court further stated that “[t]o permit an unlicensed
lay administrator to appear pro se would be to permit the unauthorized
practice of law.” Id. (citing Williams, 2009 WL 4921316). The Rowley Court
also cited to Pridgen v. Andresen, 113 F.3d 391 (2nd Cir. 1997), which held
that “an administratrix or executrix of an estate may not proceed pro se when
the estate has beneficiaries or creditors other than the litigant.” Id. at 393.
The Rowley Court concluded that “the trial court’s decision to not allow
Miller to represent the Estate is consistent with the principles expressed in
[Williams and Pridgen.]” Id. at 342. The Court continued, stating that as
“the trial court specifically found that there are other parties that will be
affected by the outcome of these proceedings—Miller’s brother-in-law and a
creditor—estates also normally involve third parties and payment of estate
taxes to the Commonwealth.” Id.
____________________________________________
complex legal issues are involved; and whether the fact-
finder is not required to be a lawyer.
Rowley, 84 A.3d at 341 (emphasis omitted).
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We find persuasive the analysis in Rowley and adopt it herein.24 We
are mindful that some estates are small and might struggle to hire counsel.
Nevertheless, “[g]iven the complex legal issues that may arise during the
representation of an estate, such as challenging a judicial sale, prohibiting a
non-attorney from representing an estate is essential to protecting the
interests of the public.” Id. Accordingly, we agree with the trial court that
Appellant cannot represent the estate pro se.
Finally, we note that Appellant claims that he is attempting to represent
his own interests as opposed to the interests of the estate. On July 20, 2016,
Appellant attempted to transfer the property to himself. See Motion to
Reassess Damages, 1/3/17, at Ex. A (attaching deed). A review of the
certified record indicates that both the trial court and Appellee were aware of
this transfer. See id. at 4, ¶ 16; Appellee’s Answer with New Matter to Petition
to Set Aside the Sale of the Property, 4/6/17, at 6, ¶ 34.
However, the certified record does not reveal that a determination was
made regarding the validity of the purported transfer. If the transfer of the
property is in fact valid, Appellant may represent himself because, as the
owner, he would have an individual interest in the property. Therefore, we
____________________________________________
24“This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010) (citation
omitted).
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remand to the trial court to determine whether Appellant has a personal
interest in the case such that he may proceed pro se on his own behalf.
Accordingly, we affirm the trial court’s order to the extent that Appellant
cannot represent the estate pro se and is barred from filing further pleadings
on behalf of the estate. However, we remand for further proceedings to
determine whether Appellant may act on his own behalf in order set aside the
sale.
Order affirmed in part. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/01/18
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