Housing Opportunity Partners v. Mehalshick, M. ( 2017 )

J-A17012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOUSING OPPORTUNITY PARTNERS : IN THE SUPERIOR COURT OF
REO, LLC : PENNSYLVANIA
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v. :
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MARIANNE MEHALSHICK, MICHAEL :
A. MEHALSHICK, AND OCCUPANTS :
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APPEAL OF: MARIANNE MEHALSHICK : No. 1465 EDA 2016
Appeal from the Order Entered April 19, 2016
In the Court of Common Pleas of Northampton County
Civil Division at No(s): C48CV2014-2621
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 08, 2017
Appellant, Marianne Mehalshick, appeals from the order entered in the
Northampton County Court of Common Pleas, which granted the motion of
Appellee, Housing Opportunity Partners REO, LLC, for judgment on the
pleadings/summary judgment in this ejectment action.1 In a prior matter,
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1
In a civil matter, “a trial court’s order dismissing a case prior to trial is
properly characterized as either a summary judgment or a judgment on the
pleadings.” Sigall v. Serrano, 17 A.3d 946, 948 n.2 (Pa.Super. 2011)
(citing Gallagher v. Harleysville Mut. Ins. Co., 617 A.2d 790, 796
(Pa.Super. 1992)) (internal quotation marks omitted). Here, Appellee filed a
motion for summary judgment. Although the trial court acknowledged,
Appellee’s motion may have been one for judgment on the pleadings, the
court granted summary judgment in favor of Appellee. (See Order, filed
(Footnote Continued Next Page)
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*Retired Senior Judge assigned to the Superior Court.
J-A17012-17
Appellee obtained a judgment in residential mortgage foreclosure against
Appellant. In this case, Appellee filed an ejectment complaint against
Appellant on March 26, 2014. On April 24, 2014, Appellant filed preliminary
objections, which the court overruled on October 1, 2015. Appellant filed,
on October 20, 2015, an answer with new matter to Appellee’s ejectment
complaint. On December 4, 2015, Appellee filed a motion for summary
judgment, which the court initially denied on March 14, 2016. Appellee
sought reconsideration on March 29, 2016. On April 19, 2016, the court
granted reconsideration and entered summary judgment in Appellee’s favor.
Appellant filed a timely notice of appeal. The court ordered a concise
statement of errors per Pa.R.A.P. 1925(b); Appellant timely complied.
As a prefatory matter, “issues not raised in the [trial] court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Also,
“arguments not raised initially before the trial court in opposition to
summary judgment cannot be raised for the first time on appeal.” Devine
v. Hutt, 863 A.2d 1160, 1169 (Pa.Super. 2004) (holding appellants waived
issue on appeal that they failed to raise before trial court in their opposition
to appellee’s motion for summary judgment). Issues not raised in a Rule
1925 concise statement of errors will likewise be deemed waived. Linde v.
Linde Enterprises, Inc., 118 A.3d 422, 430 (Pa.Super. 2015), appeal
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(Footnote Continued)
April 19, 2016). Therefore, we review the order under summary judgment
standards.
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denied, ___ Pa. ___, 129 A.3d 1243 (2015) (citing Pa.R.A.P.
1925(b)(4)(vii)). “Rule 1925(b) waivers may be raised by the appellate
court sua sponte.” Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484,
494 (2011). See also Wirth v. Commonwealth, 626 Pa. 124, 149-150,
95 A.3d 822, 836-37 (2014) (providing appellate court may address waiver
sua sponte).
On appeal, Appellant raises three issues for our review: (1) Did the
[trial] court err when it failed to deny outright [appellee]’s motion for
judgment on the pleadings and hold that the complaint was legally
insufficient and defective?; (2) Did the [trial] court erroneously grant
reconsideration outside the statutory 30-day period?; and (3) [Whether] the
judgment of foreclosure entered and the sheriff’s sale in this matter [are]
both nullities as having been fraudulently procured by individuals engaged in
the unauthorized practice of law? (See Appellant’s Brief at 4.) By
comparison, Appellant listed the following claims in her court-ordered Rule
1925(b) statement: The court erred when it (1) granted summary judgment
in favor of Appellee; (2) failed to consider Appellant’s answer and new
matter, upon Appellee’s reconsideration motion; and (3) determined
Appellee was entitled to possession of the mortgaged property and did not
permit Appellant to amend her answer and new matter. (See Rule 1925(b)
Statement, filed 6/3/16.) Appellant failed to specify in her Rule 1925(b)
statement those issues she briefed on appeal. Accordingly, Appellant waived
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her appellate issues. See Linde, supra; Pa.R.A.P. 1925(b)(4)(vii).
Moreover, Appellant failed to raise her appellate issues in the trial
court, including in her opposition to Appellee’s motion for summary
judgment and motion for reconsideration. Therefore, her issues are waived
on this ground as well. See Pa.R.A.P. 302(a), supra; Devine, supra.
Thus, Appellant waived all of her issues for appellate review. Accordingly,
we affirm. See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d
1244, 1246 n.3 (2007) (stating where issues are waived on appeal, we
should affirm rather than quash appeal).
Order affirmed. Case is stricken from argument list.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2017
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