ESB-B/Q Holdings v. Lopez, A. ( 2014 )

J-A24005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESB-B/Q HOLDINGS, LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALFONSO LOPEZ
Appellant No. 273 EDA 2014
Appeal from the Order Entered November 30, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1736 August Term, 2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 07, 2014
Appellant, Alfonso Lopez, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his motion to set aside
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We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
____________________________________________
1
circumstances. See
eed to
real property, the court may, upon proper cause shown, set aside the sale
and order a resale or enter any other order which may be just and proper
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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Appellant raises five issues for our review:
MOTION TO SET ASIDE SHERIFF SALE EVEN THOUGH
[APPELLANT] WAS GIVEN NO NOTICE OF THE AUGUST 6,
2013 SALE AND APPELLEE GAVE NO NOTICE OF THE SALE
TO [APPELLANT]?
APPELLEE PRESENTED NO EVIDENCE THAT ANY
NOTIFICATION OF THE AUGUST 6, 2013 SHERIFF SALE
AND THE SEVERAL PREVIOUS POSTPONED SALES WERE
REASONABLY CALCULATED TO NOTIFY [APPELLANT] OF
THE SCHEDULED SHERIFF SALES?
IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012
ORDERS DISPENSING WITH THE NEW NOTICE
REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE
SHERIFF SALES, PURSUANT TO PA.R.C.P. 3129.3(a), DID
THE TRIAL COURT ERR BY FAILING TO CONDUCT AN
EVIDENTIARY HEARING TO CONSIDER WHAT NOTICE, IF
ANY, APPELLEE GAVE OF THE AUGUST 6, 2013 SHERIFF
SALE AND THE SEVERAL PREVIOUS POSTPONED SALES
THAT PRECEDED IT?
IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012
ORDERS DISPENSING WITH THE NEW NOTICE
REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE
SHERIFF SALES, PURSUANT TO PA.R.C.P. 3129.3(a), DID
THE TRIAL COURT ERR BY FAILING TO CONDUCT AN
EVIDENTIARY HEARING TO DETERMINE WHETHER THE
CONSTITUTIONAL DUE PROCESS RIGHTS PURSUANT TO
THE 5TH AND 14TH AMENDMENTS?
IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012
ORDERS DISPENSING WITH THE NEW NOTICE
REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE
SHERIFF SALES PURSUANT TO PA.R.C.P. 3129.3(a), DID
THE COURT ERR BY FAILING TO CONDUCT AN
EVIDENTIARY HEARING TO DETERMINE WHETHER
2013 SALE,
IF ANY, AND THE SEVERAL PREVIOUS POSTPONED SALES
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WERE REASONABLY CALCULATED TO NOTIFY APPELLANT
OF THE SCHEDULED SHERIFF SALES?
-4).2
to realize out of the land, the debt, interest, and costs which are due, or
GMAC Mortg. Corp. of PA v.
Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007) (quoting Kaib v. Smith,
684 A.2d 630, 632 (Pa.Super. 1996)).
equitable principles and is addressed to the sound
discretion of the hearing court. The burden of proving
circumstances warranti
When
discretionary one, and it will not be reversed on appeal
unless there is a clear abuse of that discretion.
Buchanan, supra at 1167 (internal citations omitted).
On appeal, Appellant emphasizes that the parties postponed the
-month
period. Appellant acknowledges Pa.R.C.P. 3129.3(a), providing that new
notice of a
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argument section of his brief. Specifically, the argument section is divided
into two parts, which overlap with the issues included in the statement of
questions presented. Consequently, we address the issues set forth in the
argument section of the brief.
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additional notice. Nevertheless, Appellant contends a property owner is still
entitled to due process before his
sale. Appellant asserts he did not receive due process here, because
Appellee and the court did not provide notice of the final sale date.
Excluding two trial court orders entered in July and November 2012,
Appell
sale dates leading up to the August 6, 2013 sale date were not reasonably
the trial court abused its discretion in denying his motion to set aside
Rule 3129.3 governs the issuance of notice following the
postponement of a sale:
Rule 3129.3. Postponement of Sale. New Notice.
Failure of Plaintiff to Attend Sale
(a) Except as provided by subdivision (b) or special
order of court, new notice shall be given as provided by
Rule 3129.2 if a sale of real property is stayed, continued,
postponed or adjourned.
Pa.R.C.P. 3129.3(a) (emphasis added).
-recognized notions of due process, Pennsylvania
has enacted a series of procedural rules relating to the extent of proper
In re Porovne,
436 B.R. 791, 801 (Bkrtcy.W.D.Pa. January 26, 2010).
Generally, Pa.R.C.P. 3129.3 provides that if a pending sale
of real property is stayed, continued, postponed or
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adjourned for any reason, then typically new notice is
required, but there are two exceptions.
* * *
The second exception to the requirement of new notice is
where a special order of court is issued dispensing with the
requirement of additional notice. This exception gives the
court discretion to allow postponement of the sale without
new notice in appropriate cases.
Id. (internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Ellen H.
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed March 5, 2014, at 5-12) (finding:
orders entered July 9, 2012 and November 30, 2012 provided Appellant with
original notice of pending sale and dispensed with requirement for new
notice of future sale dates; Appellant made no credible allegation that
s application for financing and filing
appeared to be aware of subsequent sale dates; orders entered July 9, 2012
3129.3(a) and provided exception to requirement of new notice following
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advertising of the sale of the Property is required and any further
postponements can be done by announcement or by sending a letter, fax or
due process; it was entirely reasonable to expect that Appellant would
atten
petitions necessitated postponements). Accordingly, we affirm on the basis
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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