Penn Business Credit v. Pontiac Prop. ( 2021 )

J-A13001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENN BUSINESS CREDIT, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PONTIAC PROPERTIES, LLC AND 931 :
N. 19TH STREET, LLC :
: No. 1479 EDA 2020
:
APPEAL OF: PONTIAC PROPERTIES, :
LLC :
Appeal from the Order Entered May 27, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 110601076
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: Filed: August 26, 2021
Pontiac Properties, LLC (“Pontiac”) appeals from two orders dated May
21, 2020, and entered on May 27, 2020, denying its petitions to set aside
sheriff’s sales of its real property. After careful review, we affirm.1
The trial court provided the following summary of the relevant facts and
procedural history in its Pa.R.A.P. 1925(a) opinion:
Pontiac is a limited liability company located in Philadelphia,
Pennsylvania, with its principal place of business located at 3 N.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 We address the propriety of Pontiac’s filing only one notice of appeal from
two orders infra.
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2nd Street, Suite 200, Philadelphia, Pennsylvania 19106. Penn
Business Credit, LLC (“PBC”), is a limited liability company that
operates as a commercial lending institution, with its principal
place of business located at 1 Belmont Avenue, Suite 602, Bala
Cynwyd, Pennsylvania 19004. SMS Financial XXIX, LLC[]
(“SMS[]”) is the judgment assignee of PBC, and the [a]ppellee in
the instant action, with a principal place of business located at
6829 N. 12th Street, Phoenix, Arizona 85041. Pontiac is the
mortgagor and real owner of two (2) properties located at: (1)
5420 Warrington Avenue, Philadelphia, Pennsylvania 19142 [(“the
Warrington Avenue Property”)]; and (2) 1331 W. Ruscomb Street,
Philadelphia, [Pennsylvania] 19141 [(“the W. Ruscomb Street
Property)] ([collectively] “Properties”).
On July 14, 2011, PBC commenced two (2) separate actions
against Pontiac, seeking to foreclose the mortgages on the
Properties.[2] On September 1, 2011, after personal service was
effectuated upon the president of Pontiac, [Leonard Boney,]
default judgment was entered against Pontiac in both actions. The
Properties were scheduled for sheriff’s sale on June 4, 2013[;]
however[,] PBC had difficulty serving Pontiac with the notice of
sheriff’s sale. On May 16, 2013, the Honorable … Ellen Ceisler[]
granted PBC’s motion for alternative service as to both Properties.
Per Judge Ceisler’s May 16, 2013[ o]rder[,] the notice of the
respective sales were served on [Pontiac c/o Leonard Boney at]
4924 N. 13th Street, Philadelphia, Pennsylvania 19141, by regular
and certified mail, and were posted at both Properties.
On August 9, 2013, PBC assigned both judgments to SMS. In
December of 2018, SMS filed two (2) separate praecipes for writ
of revival of the judgment liens…. Judgment on the writ[s] of
revival was entered in April of 2019 and SMS filed for writs of
execution to sell the Properties. As per Judge Ceisler’s May 16,
2013[] alternative service orders, notice of the pending sheriff’s
sales were served on [Pontiac c/o Leonard Boney at] 4924 N. 13th
Street, Philadelphia, Pennsylvania 19141, by regular and certified
____________________________________________
2 Contrary to the trial court’s assertion, our review of the record reveals that
PBC commenced foreclosure on the mortgages pertaining to the subject
Properties with the filing of a single complaint in the Court of Common Pleas
of Philadelphia County at docket no. 110601076. See Complaint, 6/14/11, at
1-5.
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mail, were posted at both … Properties, and were served on
Pontiac’s attorney.
[A s]heriff’s sale was scheduled by the trial court for August 6,
2019. On August 5, 2019, Pontiac filed an emergency petition to
stay the sheriff’s sale (“[] Emergency Stay Petition”). On August
5, 2019, this court granted Pontiac’s Emergency Stay Petition and
continued the sale to November 5, 2019. On November 5, 2019,
the morning of the postponed sheriff[’s] sale, Pontiac filed a
Chapter 11 bankruptcy proceeding in the Eastern District of
Pennsylvania, docketed at case number 19-16951. Pontiac’s
bankruptcy stayed the November 5, 2019[] sheriff’s sale. On
December 10, 2019, due to the pending bankruptcy proceeding,
this court postponed the sheriff’s sale to February 4, 2020.
On December 11, 2019, the bankruptcy petition was dismissed[,]
and on February 4, 2020, both Properties were sold to RTE
Properties LLC (“RTE”). On February 14, 2020, Pontiac filed two
(2) separate motions to set aside the February 4, 2020[] sheriff’s
sales (“[] Motions to Set Aside”).[3] On March 3, 2020, this court
scheduled both motions for a rule hearing on March 19, 2020. Due
to the global [COVID-19] pandemic[,] the First Judicial District of
Pennsylvania was forced to close for two (2) months and the
hearing never occurred. On May 27, 2020, this court denied both
of [Pontiac’s] Motions to Set Aside.
On June 22, 2020, Pontiac filed a notice of appeal of this court’s
May 21, 2020[] orders to the Superior Court of Pennsylvania
(“Superior Court”), which appeal [is] docketed at 1479 EDA 2020.
On June 29, 2020, this court issued a [Pa.R.A.P.] 1925(b) order[,]
seeking Pontiac’s statement of matters complained of within
twenty-one (21) days. On July 17, 2020, Pontiac timely filed the
required [Rule] 1925(b) statement.
Trial Court Opinion (“TCO”), 11/9/20, at 1-3 (unnecessary capitalization and
citations to record omitted).
____________________________________________
3 The Philadelphia County Prothonotary assigned Pontiac’s Motions to Set
Aside the sheriff’s sales of the W. Ruscomb Street Property and the Warrington
Avenue Property, control numbers 20022252 and 20022254, respectively, at
docket no. 110601076. See Motion to Set Aside (Control No. 20022252),
2/17/20, at 1; Motion to Set Aside (Control No. 20022254), 2/18/20, at 1.
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Herein, Pontiac raises the following issues for our review:
1. Whether the lower court erred as a matter of law in denying
the motion to set aside the sheriff’s sale [of the Warrington
Avenue Property] … without affording [Pontiac] a hearing and
the opportunity to be heard?
2. Whether the lower court erred as a matter of law in denying
the motion to set aside the sheriff’s sale [of the W. Ruscomb
Street Property] … without affording [Pontiac] a hearing and
the opportunity to be heard?
Pontiac’s Brief at 4 (unnecessary capitalization omitted).
Before delving into the merits of Pontiac’s issues, we must first consider
the propriety of its filing one notice of appeal from two final orders. As
mentioned in the summary of the case provided by the trial court supra, the
trial court filed two separate orders on May 27, 2020. The first order denied
Pontiac’s motion to set aside the sheriff’s sale of the Warrington Avenue
Property, and the second order denied the motion to set aside the sheriff’s
sale regarding the W. Ruscomb Street Property. On June 22, 2020, Pontiac
filed a single notice of appeal, purporting to appeal from both orders.4 Though
____________________________________________
4 We are cognizant of the decision in Commonwealth v. Walker, 185 A.3d
969, 977 (Pa. 2018), in which our Supreme Court held that the Official Note
to Pa.R.A.P. 341 provides a bright-line rule requiring separate notices of
appeal to be filed where one or more orders resolves issues arising on more
than one docket, and that the failure to follow this mandatory instruction
requires quashal of the appeal. Id. at 976-77 (emphasis added). The Walker
holding is not applicable in the instant matter, however, as both orders being
appealed arise from a single complaint commenced at docket no. 110601076.
The prothonotary merely assigned separate control numbers to Pontiac’s
Motions to Set Aside to differentiate between Pontiac’s attempt to set aside
the sale of the two separate Properties and any subsequent corresponding
filings on the same docket.
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we discourage the practice of filing one notice of appeal from two final orders,
we decline to quash its appeal on this basis. See Interest of S.U., 204 A.3d
949, 952 n.2 (Pa. Super. 2019) (en banc) (citing Gen. Elec. Credit Corp. v.
Aetna Cas. & Sur. Co., 263 A.2d 448, 452-53 (Pa. 1970) (holding “that a
single appeal is incapable of bringing on for review more than one final order,
judgment or decree” except when circumstances permit appropriate appellate
review); Dong Yuan Chen v. Saidi, 100 A.3d 587, 589 n.1 (Pa. Super.
2014)). As in Gen. Elec. Credit Corp., (1) the issues raised as to both final
orders are the same; (2) the appellee did not object to Pontiac’s bringing but
one appeal; and (3) if Pontiac’s appeal were quashed, the period allowed for
appeal will have already expired, precluding the institution of proper appeals.
See Gen. Elec. Credit Corp., 263 A.2d at 453. We also note that the trial
court addressed the issues relating to each order. See Dong Yuan Chen,
100 A.3d at 589 n.1. Accordingly, we will review Pontiac’s appeal.
As we address the issues raised by Pontiac, we remain mindful of the
following controlling principles:
“The purpose of a sheriff’s sale in mortgage foreclosure
proceedings is to realize out of the land, the debt, interest, and
the costs which are due, or have accrued to, the judgment
creditor.” Kaib v. Smith, … 684 A.2d 630, 632 ([Pa. Super.]
1996). A petition to set aside a sheriff’s sale is grounded in
equitable principles and is addressed to the sound discretion of
the hearing court. Id. … at 631. The burden of proving
circumstances warranting the exercise of the court’s equitable
powers rests on the petitioner, as does the burden of showing
inadequate notice resulting in prejudice, which is on the person
who seeks to set aside the sale. Id. When reviewing a trial court’s
ruling on a petition to set aside a sheriff’s sale, we recognize that
the court’s ruling is a discretionary one, and it will not be reversed
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on appeal unless there is a clear abuse of that discretion. Blue
Ball National Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super.
2002).
An abuse of discretion is not merely an error of judgment. Paden
v. Baker Concrete Construction, Inc., … 658 A.2d 341, 343
([Pa.] 1995). Furthermore, it is insufficient to persuade the
appellate court that it might have reached a different conclusion
if, in the first place, charged with the duty imposed on the trial
court. Id.An abuse of discretion exists when the trial court has
rendered a judgment that is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was
motivated by partiality, prejudice, bias, or ill will. Where
the record adequately supports the trial court’s reasons and
factual basis, the court did not abuse its discretion.
Harman v. Borah, … 756 A.2d 1116, 1123 ([Pa.] 2000) (citations
omitted).
GMAC Mortg. Corp. of PA v. Buchanan, 929 A.2d 1164, 1167 (Pa. Super.
2007).
We are further guided by the following:
“No sale of real property upon a writ of execution shall be held
until the plaintiff has filed with the sheriff the affidavit required by
subdivision (b) and the notice required by Rule 3129.2 has been
served.” Pa.R.C.P. 3129(a). Pennsylvania Rule of Civil Procedure
3129.2 requires written notice of the sale of real property “to all
persons whose names and addresses are set forth in the affidavit
required by Rule 3129.1.” Pa.R.C.P. 3129.2(a). Rule 3129.2
states as follows regarding service of the notice:
Rule 3129.2. Notice of Sale. Handbills. Written Notice.
Publication
***
(c) The written notice shall be prepared by the plaintiff, shall
contain the same information as the handbills or may
consist of the handbill and shall be served at least thirty
days before the sale on all persons whose names and
addresses are set forth in the affidavit required by Rule
3129. 1.
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(1) Service of the notice shall be made
(i) upon a defendant in the judgment who has not
entered an appearance and upon the owner of the
property.
(A) by the sheriff or by a competent adult in the
manner prescribed by Rule 402(a) for the
service of original process upon a defendant, or
…
(B) by the plaintiff mailing a copy in the manner
prescribed by Rule 403 to the addresses set
forth in the affidavit; or
(C) if service cannot be made as provided in
subparagraph (A) or (B), the notice shall be
served pursuant to special order of court as
prescribed by Rule 430, except that if original
process was served pursuant to a special order
of court under Rule 430 upon the defendant in
the judgment, the notice may be served upon
that defendant in the manner provided by the
order for service of original process without
further application to the court; and
(ii) upon the defendant in the judgment who has
entered an appearance, by the plaintiff in the
manner provided by Rule 440, and
(iii) upon each other person named in the affidavit
by the plaintiff by ordinary mail at the address set
forth in the affidavit with the return address of the
plaintiff appearing thereon. The plaintiff shall
obtain from the U.S. Postal Service a Form 3817
Certificate of Mailing. Service shall be complete
upon mailing. If the mail is returned the validity of
the service shall not be impaired and the sale shall
proceed at the time fixed in the notice.
Pa.R.C.P. 3129.2(c). Rule 440, in turn, permits service “by
handing or mailing a copy to or leaving a copy for each party at
the address of the party’s attorney of record endorsed on an
appearance or prior pleading of the party, or at such other address
as a party may agree.” Pa.R.C.P. 440(a)(1)(i).
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The notice requirements of Pa.R.C.P. 3129.1, 3129.2, and
3129.3 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. Because notice is the most basic
requirement of due process, [it] must be reasonably
calculated to inform interested parties of the pending action,
and the information necessary to provide an opportunity to
present objections. The form of notice required depends on
what is reasonable considering the interests at stake and
the burdens of providing notice.
First Eastern Bank, N.A. v. Campstead, Inc., …. 637 A.2d
1364, 1366 ([Pa. Super.] 1994) (internal citations and quotation
marks omitted).
Additionally, “[t]he rules shall be liberally construed to secure the
just, speedy[,] and inexpensive determination of every action or
proceeding to which they are applicable. The court at every stage
of any such action or proceeding may disregard any error or defect
of procedure which does not affect the substantial rights of the
parties.” Pa.R.C.P. 126.
Wells Fargo Bank, N.A. v. Ferreri, 199 A.3d 892, 896-97 (Pa. Super. 2018).
Here, Pontiac argues that the trial court erred in denying its Motions to
Set Aside without first conducting an evidentiary hearing. Pontiac’s Brief at
11. Pontiac avers that it was denied the opportunity to present competent
evidence that it was not properly served with the notices of sheriff’s sale. Id.
at 11-12. Pontiac is not entitled to any relief on its claims.
A party may seek to set aside a sheriff’s sale pursuant to Pennsylvania
Rule of Civil Procedure 3132, which provides:
Upon petition of any party in interest before delivery of the …
sheriff’s deed 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 under the circumstances.
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Pa.R.C.P. 3132. It is well-settled that the burden of proof in a petition to set
aside a sheriff’s sale is on the petitioner:
As a general rule, the burden of proving circumstances warranting
the exercise of the court’s equitable powers is on the applicant,
and the application to set aside a sheriff’s sale may be refused
because of the insufficiency of proof to support the material
allegations of the application, which are generally required to be
established by clear evidence.
Bank of Am., N.A. v. Estate of Hood, 47 A.3d 1208, 1211 (Pa. Super. 2012)
(internal citation omitted).
In the instant matter, Pontiac’s Motions to Set Aside averred only that
it “did not receive any service or other notice of the legal proceedings and
sheriff’s sale,” which the trial court concluded clearly did not reach the
evidentiary burden outlined in Estate of Hood. See TCO at 5. Pontiac failed
to attach to its motions any evidence supporting its contentions regarding the
lack of service. Thus, we agree with the trial court that Pontiac failed to meet
its burden of establishing equitable grounds for setting aside the sheriff’s
sales. Moreover, we note that Pontiac fails to explain in its appellate brief how
SMS failed to effect service of the notices of sheriff’s sale, nor does it set forth
any evidence in support of its contentions.
Additionally, Pontiac’s claims are directly contradicted by the record. As
the trial court opined:
On July 30, 2011, the docket reveals that the president of Pontiac,
… Leonard Boney, was personally served with the original
complaint. On September 1, 2011, a valid default judgment was
entered against Pontiac as to both the Warrington [Avenue] and
[W.] Ruscomb [Street P]roperties. On May 16, 2013, Judge
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Ceisler granted PBC’s motion for alternative service as to both
Properties.
In all subsequent actions in this matter, PBC, and later its
assignee[,] SMS, have directly complied with Judge Ceisler’s
alternative service order, serving notice on 4924 N. 13th Street,
Philadelphia, Pennsylvania 19141, by regular and certified mail,
and posting notice at both Properties. Moreover, on June 18,
2019, SMS served Pontiac’s attorney of record, Richard J.
Weirtzman, Esquire, with notice of the sheriff’s sale via first class
certified mail.
Id. (unnecessary capitalization and citations to record omitted).
Consequently, the trial court concluded, “it is clear from the record[] that
Pontiac had proper notice of the sheriff’s sales,” and, therefore, its denial of
the motions to set aside the sales was proper. Id. We agree. See Pa.R.C.P.
3129.2(c); 440.
Based on the foregoing, we discern no abuse of discretion by the trial
court in its denial of Pontiac’s Motions to Set Aside. Accordingly, we affirm
the trial court’s May 27, 2020 orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/21
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