Citizens Bank v. Guerra, A. ( 2018 )

J-S10032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CITIZENS BANK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY G. GUERRA, BIANCA :
GUERRA, NKA BIANCA A. BUCANO, :
MELISSA M. BUCANO, ELILSA B. : No. 3173 EDA 2017
GUERRA, LORETTA C. GUERRA :
:
:
APPEAL OF: BIANCA BUCANO :
Appeal from the Order Entered August 23, 2017
In the Court of Common Pleas of Monroe County Civil Division at No(s):
4050 CV 2013
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 20, 2018
Appellant Bianca A. Bucano1 appeals pro se from the order disposing of
her numerous filings against Appellee Citizens Bank in this mortgage
foreclosure action. She raises a litany of arguments, which we set forth below,
assailing the court’s reasoning. We affirm in part and quash in part.
Briefly, by way of background, Appellant is divorced. She and her ex-
husband signed a post-nuptial agreement, which awarded her the property
subject to the underlying foreclosure and provided that she was solely
responsible for paying the mortgage and property taxes.
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1Appellant was also known as Bianca Guerra. The other captioned defendants
are not parties to this appeal.
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On May 16, 2013, Appellee commenced foreclosure proceedings against
Appellant. At some time in 2013, Appellant sued her ex-husband in regard to
the post-nuptial agreement, in a case presided over by the Honorable
Jonathan Mark, who is also the judge in the instant mortgage foreclosure suit.
N.T., 8/21/17, at 9.2 She claimed that her ex-husband failed to give her power
of attorney, which she argued was necessary to communicate with Appellee
and resolve the then-outstanding foreclosure action. Id. With respect to
Appellant’s claim against her ex-husband, Judge Mark ruled against her.3 It
does not appear that Appellant appealed that decision to this Court.
We state the subsequent procedural history for the foreclosure action,
as summarized by the trial court:
This is a mortgage foreclosure action in which default judgment
was entered on August 5, 2014, [Appellant’s] initial petition to
strike the default judgment was denied on March 12, 2015, and
[her] subsequent petition to strike was denied on April 9, 2015.[4]
Significantly, while later efforts to attack or collaterally attack the
judgment and subsequent sheriff’s sale were made, neither
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2 Paragraph eleven of the agreement permits a party, in the event of any
breach, to sue for damages, specific performance, or another appropriate
remedy. Ex. 2 to Appellant’s Mot. to Recuse, 8/14/17.
3The instant record does not otherwise elaborate on the details of the post-
nuptial lawsuit, which was docketed at 2495 CV 1999.
4 In both of her pro se petitions to strike the default judgment, Appellant
contended that her ex-husband breached the post-nuptial agreement by not
contacting Appellee, “releasing his interest” in the property, and giving her
power of attorney to resolve the foreclosure with Appellee. Appellant’s Pet.
to Strike Default J., 2/25/15, at 1; Appellant’s Pet. to Strike Default J., 4/6/15,
at 1.
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Appellant nor any other party filed a timely appeal from the . . .
orders denying the petitions to strike the default judgment.
Appellant has been incarcerated throughout the pendency of this
action. She is serving a state sentence of 11 ¼ to 23 ½ years for
a 2012 conviction of multiple counts of Corrupt Organizations,
Insurance Fraud, Forgery, Theft by Deception, Attempt to Commit
Theft by Deception, Conspiracy, and Dealing in Proceeds of
Unlawful Activities. In addition, [Appellant] has been ordered to
pay restitution totaling more than $1.1 million. [Appellant’s]
direct appeals have been exhausted, the judgment of sentence is
final, and her collateral claims under the Post Conviction Relief Act
have been denied. According to Appellant, she has filed a petition
for habeas corpus relief in federal court; however, no
documentary evidence of such a filing has been submitted.
After the foreclosure judgment was entered, and while she was
incarcerated, Appellant serially filed motions, petitions, and
requests for various forms of relief, including several filings
through which she attempted to collaterally attack the judgment
and others through which she sought a stay the sheriff’s sale [that
occurred on March 30, 2017]. All of her motions were denied as
being procedurally, factually, legally, or jurisdictionally devoid of
merit. In addition, Appellant filed appeals that were . . . quashed
. . . by the Superior Court.[5] . . .
Around and after the date of the sheriff’s sale, Appellant filed
several motions and objections. In an attempt to address all
outstanding submissions, end the serial filing of motions, allow
Appellant and Appellee to make a record and present their
respective arguments, and permit us to rule on all matters and
state our reasoning, on the record, we scheduled a hearing and
arranged for Appellant to participate by videoconference from SCI
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5 Specifically, in the appeal docketed at 2485 EDA 2016, this Court quashed
Appellant’s appeal from the trial court’s July 15, 2016 order denying her
petition to stay the Sheriff’s sale of the property because the appeal was
premature as the sale had not yet occurred. At docket 794 EDA 2017,
Appellant appealed from the trial court’s January 12, 2017 order denying
another petition to stay the Sherriff’s sale. This Court similarly quashed the
appeal because an order denying a stay is not a final and appealable order.
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Muncy. Subsequently, Appellee filed objections to Appellant’s
untimely counterclaim and asked the Court to preclude Appellant
from filing any additional motions or requests for relief in this case
or any lawsuits pertaining to the subject mortgage or the sheriff
sale.
Trial Ct. Op., 9/19/17, at 1-3.6 Appellant’s numerous filings, some of which
were not included in the record transmitted to this Court, have resulted in a
lengthy procedural history, which we reproduce in relevant part as follows.7
Appellant’s April and May 2017 Filings
As stated above, the sheriff’s sale occurred on March 30, 2017; a third-
party purchased Appellant’s property. On April 21, 2017, prior to the delivery
of the property’s deed, the court docketed several of Appellant’s pleadings:8
(1) a motion to set aside the sheriff’s sale under Pa.R.C.P. 3132;9 (2) a motion
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6Meanwhile, Appellant had also filed for bankruptcy, but the bankruptcy court
permitted Appellee to proceed with foreclosure. In re Bucano, No. 4-15-bk-
01587 (Bankr. M.D. Pa. Jan. 6, 2016) (order).
7 The record transmitted to this Court spans 813 pages.
8 The record does not consistently indicate when Appellant deposited her
pleadings into the prison mailbox system. See generally Thomas v. Elash,
781 A.2d 170, 176 (Pa. Super. 2001) (holding that a legal document, including
a legal document in a civil case, is deemed filed by an incarcerated pro se
litigant on the date it is deposited into prison mail system). Thus, we
reference the date the court docketed her pleadings.
9 Pennsylvania Rule of Civil Procedure 3132 states: “Upon petition of any party
in interest before delivery of the personal property or 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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to set aside the sheriff’s sale on the basis of extraordinary relief; and (3) a
request for a stay of the sale, which was titled an “Objection to Sheriff
Determination Rule 3260.”10 Appellant’s filings raised numerous, and
sometimes duplicative, arguments. In relevant part, she asserted that the
property’s actual sale price bore no relation to the property’s value and
Appellee procured the sale by fraud.
The deed to the property was delivered on May 1, 2017. On May 3,
2017, the court denied Appellant’s April 21st request for a stay of the sale.
On May 23, 2017, Appellee filed an answer to both of Appellant’s April 21st
motions to set aside the sheriff’s sale.
On May 30, 2017, the court docketed (1) Appellant’s “motion to praecipe
the case for argument” on her motion to set aside the sheriff’s sale, which did
not specify which of the April 21, 2017 motions she was referencing, and (2)
Appellant’s “Argument to Set Aside Sheriff Sale.” Appellant’s “Argument”
raised several claims, including allegations that the foreclosure violated Act
611 and Act 91,12 the court erred by not granting her request for a stay under
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10Pennsylvania Rule of Civil Procedure 3260 sets forth an exemplar of an
objection to a sheriff’s determination of ownership of the property at issue.
11 41 P.S. §§ 101-605. Act 6, as it is commonly referred to, is Pennsylvania’s
loan interest and protection law. See generally Generation Mortg. Co. v.
Nguyen, 138 A.3d 646, 649 n.2 (Pa. Super. 2016).
12 35 P.S. §§ 1680.401c-1680.412c. “The purpose of Act 91 was to institute
a program to avert extensive mortgage foreclosures and distress homes sales
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Rule 3121,13 the sheriff’s sale was procured by fraud, and the sale price of the
property was below its actual value.14
On June 12, 2017, the court denied Appellant’s (1) two then-outstanding
April 21st motions to set aside the sheriff’s sale and (2) May 30th motion to
praecipe the case for argument on her motion to set aside the sheriff’s sale
and “Argument to Set Aside Sheriff Sale.” Order, 6/12/17, at 1-2. The court
reasoned that Appellant “failed to recite any cognizable basis on which to
challenge, much less set aside, the Sheriff’s Sale of the subject property.” Id.
at 1. Further, according to the court, Appellant “improperly attempt[ed] to
raise and relitigate issues that were or could have been decided long ago, prior
to the date the foreclosure judgment became final, and that she ha[d]
repeatedly attempted to raise on numerous occasions prior to the Sheriff
Sale.” Id. Appellant did not appeal the June 12, 2017 order.
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resulting from default caused by conditions beyond the control of
homeowners, through emergency mortgage assistance payments.”
Beneficial Consumer Discount Co. v. Vukman, 77 A.3d 547, 554 (Pa.
2013) (Saylor, J., concurring).
13 Pennsylvania Rule of Civil Procedure 3121 sets forth the procedure for
requesting a stay or setting aside the execution of a sheriff’s sale of a property.
See generally Pa.R.C.P. 3121.
14 Although Appellant’s May 30th “Argument to Set Aside Sheriff Sale,” was
filed after the deed was delivered on May 1st, because she alleged fraud, the
trial court could consider her argument. See Garrison v. Erb, 227 A.2d 848,
849 (Pa. 1967) (stating, “The only attacks possible after delivery of deed to
the purchaser are those based on fraud which vitiates the transaction, or on
lack of authority to make the sale”).
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Appellant’s June 2017 Filings
The court, on June 15, 2017, docketed Appellant’s first motion to have
the trial judge recuse himself. That same day, the court also docketed
Appellant’s motion to compel Appellee to produce documents regarding (1)
her taxes, (2) homeowners’ insurance, and (3) mortgage payment records.
The docket also indicates that the court docketed Appellant’s “Counterclaim
Under Rule 1148, New Evidence, Filed,” but the record does not contain this
pleading.
On June 21, 2017, the court docketed Appellant’s objections to the
court’s June 12, 2017 order that denied her April 21st motions and May 30th
pleadings.15 Appellant’s objections reiterated many of her prior arguments,
including the value of the property was greater than the actual sale price and
that the judge was biased against her. Appellant’s Objs. to Order Denying
Appellant’s Pet., 6/21/17, at 1-3.16
On June 23, 2017, Appellee filed an answer to Appellant’s motion to
compel and counterclaim, which reasoned that because there was a final
judgment in the foreclosure action, Appellant’s motion was barred by res
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15Also on June 21st, the court docketed Appellant’s petition to fix the fair
market value of the property at issue under Pa.R.C.P. 3284.
16 As set forth below, we construe her objections as a motion for
reconsideration of the court’s June 12, 2017 order.
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judicata or claim preclusion. Appellee’s Ans., 6/23/17, at 2 (unpaginated).
Appellee’s answer also requested the court to bar Appellant from filing future
pleadings under Pa.R.C.P. 233.1.17 Appellee reasoned that because Appellant
was litigating issues previously resolved by the court, under Rule 233.1, she
should be barred from litigating the mortgage foreclosure. Appellee’s Ans.,
6/23/17, at 4 (unpaginated). On June 28, 2017, the court docketed
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17 Pennsylvania Rule of Civil Procedure 233.1 states:
(a) Upon the commencement of any action filed by a pro se
plaintiff in the court of common pleas, a defendant may file a
motion to dismiss the action on the basis that
(1) the pro se plaintiff is alleging the same or related claims
which the pro se plaintiff raised in a prior action against the
same or related defendants, and
(2) these claims have already been resolved pursuant to a
written settlement agreement or a court proceeding.
(b) The court may stay the action while the motion is pending.
(c) Upon granting the motion and dismissing the action, the court
may bar the pro se plaintiff from pursuing additional pro se
litigation against the same or related defendants raising the same
or related claims without leave of court.
(d) The court may sua sponte dismiss an action that is filed in
violation of a court order entered under subdivision (c).
Pa.R.C.P. 233.1.
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Appellant’s response to Appellee’s June 23rd answer and request to bar her
from filing future pleadings.18
On July 6, 2017, the court ordered a hearing to resolve the following
pleadings. Specifically, Appellant’s (1) June 15, 2017 motion to recuse,
motion to compel, and counterclaim under Rule 1148; (2) June 21, 2017
petition to fix fair market value under Rule 3284; (3) June 21, 2017 objections
to the court’s June 12, 2017 order that denied her motions and pleadings to
set aside the sheriff’s sale; (4) June 28, 2017 response to Appellee’s June
23rd answer and request to bar future filings by Appellant; and (5) June 28,
2017 “motion for stay of ‘good cause.’” The order also provided that it would
resolve Appellee’s request to bar future filings and any other outstanding
motions.19
At the August 21, 2017 hearing, Appellant participated via video
conference. At the hearing, in addition to arguing the purported merits of her
various filings, she asserted the judge should recuse himself because he ruled
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18 That same day, the court docketed Appellant’s “motion for stay of ‘good
cause.’” The motion is difficult to understand, but Appellant appears to be
suggesting that the court impose a bond pending resolution of her challenges
to the sheriff’s sale. Appellant’s Mot. for Stay of Good Cause, 6/28/17, at 1.
19 On August 14, 2017, prior to the scheduled hearing, the court docketed
Appellant’s second motion to recuse the trial judge, which reiterated the
arguments in her earlier June 15, 2017 motion to recuse and additionally
contended the judge should recuse himself because he ruled against her in a
separate action to enforce a post-nuptial agreement. Appellant’s Mot. to
Recuse, 8/14/17, at 1.
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against her in her lawsuit against her ex-husband regarding the post-nuptial
agreement. N.T., 8/21/17, at 9; see also Appellant’s Mot. to Recuse,
8/14/17. At the conclusion of the hearing, the court ruled against Appellant
for all of her outstanding motions, which was memorialized in an order
docketed on August 23, 2017. Order, 8/23/17. Although the order did not
specifically rule on Appellant’s August 14th motion to recuse, the order
provided as follows:
The Court notes that, due to the number and nature of filings,
there may be some individual matters raised by [Appellant] that
are not specifically addressed in this Order. It is the intent of this
Order to dispose of and deny all outstanding requests for relief
filed by [Appellant] and discussed during today’s proceeding.
Id. at 2 (unpaginated). The court also denied Appellee’s motion under
Pa.R.C.P. 233.1 to bar pro se Appellant from pursuing frivolous litigation. Id.
Appellant timely appealed and filed a non-court-ordered Pa.R.A.P.
1925(b) statement. The trial court prepared a responsive opinion, which
noted that Appellant has inundated it with numerous pleadings collaterally
attacking the default judgment in the 2014 mortgage foreclosure action. Trial
Ct. Op., 9/19/17, at 2. The trial court also requested that this Court authorize
it to
summarily dismiss any filings submitted by Appellant that raise
matters which have previously been decided on their merits and
that Appellant be advised that neither this [c]ourt nor the Superior
Court will entertain future filings or appeals that pertain to
decisions that she could have timely appealed but did not, issues
that were or could have been raised in the prior appeals that were
dismissed or quashed, or matters that were or could have been
raised in this appeal.
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Trial Ct. Op., 9/19/17, at 4.
Appellant raises the following issues:20
1. [The trial court] erred when he refused to reopen Appellant’s
divorce agreement in the post-nuptial order to communicate with
the bank.
2. [The trial court] erred when Appellant requested itemized
breakdowns, and proof of records, proving those amounts, for not
reviewing [A]ppellant’s evidence submitted to [the trial court] that
clearly proved the multitude of mathematical errors.
3. The [trial] court erred allowing [Appellee’s] representatives to
continuously commit fraud with false amounts owed that
fluctuated and decreased when they needed it to.
4. The [trial] court erred when they did not inquire why [Appellee]
overbilled Appellant for over eleven years, claiming escrow
without evidence.
5. The [trial] court erred and violated Appellant’s Act 6 and Act 91
rights when the court did not demand proof of accelerated late
fees and charges.
6. The [trial] court erred denying to set aside sheriff sale and sign
a bond and submit proof of [Appellee’s] fair market value
appraisal.
Appellant’s Brief at i.21 Appellee did not cross-appeal from the court’s order
denying its Pa.R.C.P. 233.1 motion.
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20Appellant did not include a statement of questions presented in her brief.
Thus, we reproduce her argument headings.
21 Appellant’s table of contents was unpaginated.
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For her first issue, Appellant contends that the trial court erred by not
reopening the post-nuptial agreement between her and her ex-husband.
Appellant argues that her ex-husband should have given her power of attorney
in order to contact Appellee and cure the default. Appellant’s Brief at 4, 6.22
Appellee responds that the trial court properly concluded that Appellant
re-raised an argument that was fully litigated and adjudicated. As noted by
Appellee and the trial court, Appellant raised identical arguments in her
February 2015 petition to strike default judgment in the 2014 mortgage
foreclosure action.
Whether collateral estoppel or the law of the case doctrine applies is a
question of law and thus, we apply a de novo standard of review. See
Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa. Super.
2016); In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005). The “doctrine of
collateral estoppel or issue preclusion prevents a question of law or an issue
of fact that has once been litigated and fully adjudicated in a court of
competent jurisdiction from being relitigated in a subsequent suit.” Lenfest,
152 A.3d at 286. “Collateral estoppel may be invoked to bar the relitigation
of an issue alleged to have been determined in a prior action regardless of
whether there is identity of the causes of action or of the parties in the two
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22Appellant does not argue that Judge Mark should have recused himself
because of his adverse ruling in the post-nuptial agreement lawsuit.
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actions.” 10 Standard Pa. Practice 2d § 65:69 (footnote to case citations
omitted).
In contrast, but in a similar vein:
The law of the case doctrine expresses the practice of courts
generally to refuse to reopen what has been decided. The doctrine
is composed of a collection of rules that not only promote the goal
of judicial economy but also operate (1) to protect the settled
expectations of the parties; (2) to insure uniformity of decisions;
(3) to maintain consistency during the course of a single case; (4)
to effectuate the proper and streamlined administration of justice;
and (5) to bring litigation to an end. . . .
. . . [T]he considerations that underlie the doctrine also
strongly weigh in favor of adherence by a trial judge to a decision
by that same judge earlier in the case:
Law of the case doctrine saves both litigants and the courts
from duplications of effort. If permitted to argue and brief
the same issue repeatedly during the course of the same
litigation, some litigants would be indefatigable in their
efforts to persuade or to wear down a given judge in order
to procure a favorable ruling. Such use of clients’ finances,
legal counsels’ time and energy, and judicial resources is
wasteful from a systemic perspective.
. . . As we have stated, “Once a matter has been decided by a trial
judge the decision should remain undisturbed, unless the order is
appealable and an appeal therefrom is successfully prosecuted.”
Golden v. Dion & Rosenau, 410 Pa. Super. 506, 600 A.2d 568,
570 (1991) (discussing rulings by different trial judges). As a
general proposition, a court should not revisit questions it has
already decided.
Bienert v. Bienert, 168 A.3d 248, 254 (Pa. Super. 2017) (some citations,
quotation marks, ellipses, and brackets omitted). With respect to that general
proposition, the Pennsylvania Supreme Court explained, “a later motion
should not be entertained or granted when a motion of the same kind has
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previously been denied, unless intervening changes in the facts or the law
clearly warrant a new look at the question.” Goldey v. Trustees of Univ. of
Pa., 675 A.2d 264, 267 (Pa. 1996).
In the context of a default judgment, the Pennsylvania Supreme Court
held, “[o]nce all direct appeals are exhausted from the entry of such a
judgment, we long ago concluded that the judgment by default is res judicata
and quite as conclusive as one rendered on a verdict after litigation insofar as
a defaulting defendant is concerned.” Fox v. Gabler, 626 A.2d 1141, 1143
(Pa. 1993) (citations omitted). “[T]he judgment is final and conclusive not
only as respects matters actually presented to sustain or defeat the right
asserted in the earlier proceeding but also as respects any other available
matter which might have been presented to that end.” Id. (citation omitted).
For example, in Winpenny v. Winpenny, 643 A.2d 677 (Pa. Super.
1994), the Court invoked the “law of the case” and res judicata doctrines to
prevent a pro se litigant from abusing the court system. Id. at 679. In sua
sponte assessing costs under Pa.R.A.P. 274423 against that pro se litigant, the
Court noted:
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23 Pa.R.A.P. 2744 states:
In addition to other costs allowable by general rule or Act of
Assembly, an appellate court may award as further costs damages
as may be just, including
(1) a reasonable counsel fee and
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A party must raise all matters related to an issue at the first
opportunity or be forever barred from raising them again. Even
giving the highest consideration to the pro se party, there can be
no doubt from the record that [the pro se litigant] has had every
opportunity for appropriate hearings on the various points of
which she now complains.
Id. (citation and footnote omitted).
Here, both Appellee and the trial court have correctly contended that
Appellant is attempting to re-raise an argument that was fully litigated and
adjudicated: first, in her action to enforce the post-nuptial agreement against
her husband, and second, in her February 2015 petition to strike the default
judgment in the 2014 mortgage foreclosure action.24 To the extent Appellant
is relitigating her post-nuptial agreement in this mortgage foreclosure action,
she is barred from raising it in this and future lawsuits. See generally
Lenfest, 152 A.3d at 286.
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(2) damages for delay at the rate of 6% per annum in
addition to legal interest,
if it determines that an appeal is frivolous or taken solely for delay
or that the conduct of the participant against whom costs are to
be imposed is dilatory, obdurate or vexatious. The appellate court
may remand the case to the trial court to determine the amount
of damages authorized by this rule.
Pa.R.A.P. 2744.
24 As we noted above, Appellant repeated this argument in a subsequent April
6, 2015 petition to strike, which the court denied on April 9, 2015.
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To the extent Appellant is raising this particular argument as a basis to
challenge the default judgment or the order denying her petition to strike, the
law of the case doctrine bars her from relitigating this issue, as she did not
appeal the order denying her February 2015 (or April 6, 2015) petition to
strike. See Fox, 626 A.2d at 1143; Bienert, 168 A.3d at 254.
Similar to the pro se litigant in Winpenny, because Appellant did not
appeal from the order denying her petition to strike the default judgment, in
which she had raised this argument, she cannot continue to relitigate it. Cf.
Winpenny, 643 A.2d at 679. Thus, the trial court properly refused to grant
relief.
Appellant’s arguments in support of her second, third, and fourth issues
essentially assail the amount in default and whether Appellee engaged in
fraud. Appellant believes that she owed $5,770.95, and that the court could
have facilitated a meeting with Appellee to avoid foreclosure. Appellant’s Brief
at 9-10. She maintains the court was obligated to “resolve the correct amount
owed.” Id. at 13. Appellant similarly asserts that Appellee’s counsel
committed fraud by lying to the bankruptcy court about the amount owed and
the value of the property. Id. at 16-19. According to Appellant, Appellee
improperly overbilled her and under a correct calculation, she was in default
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by $5,691.51.25 Id. at 22. Appellant does not articulate how this would void
the judgment.
Here, without addressing the viability of Appellant’s arguments, the time
to raise them has long past. As with Appellant’s first issue, Appellant failed to
appeal the order denying her petition to strike, which rendered the default
judgment final and conclusive. See Fox, 626 A.2d at 1143; Bienert, 168
A.3d at 254.
Even if Appellant’s arguments were properly before this Court, we would
hold she has not established entitlement to relief as she failed to establish
how the judgment would be void. See generally Mother’s Restaurant,
Inc. v. Krystkiewicz, 861 A.2d 327, 337 (Pa. Super. 2004) (en banc)
(suggesting an argument that a judgment is void may be raised for the first
time on appeal). Solely based on the arguments she has raised, Appellant
has not established entitlement to relief.
In support of her fifth issue, Appellant argues that Appellee violated Act
6. Appellant’s Brief at 30.26 For her sixth issue, Appellant contends the court
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25 Appellant, it appears, calculated two different amounts in default.
26 In her list of issues, Appellant also asserted that the court erred by not
finding in her favor on her Act 91 claim. By not arguing Act 91 in her appellate
brief, however, she has waived it on appeal. See Kituskie v. Corbman, 682
A.2d 378, 383 (Pa. Super. 1996). But even if Appellant had argued Act 91,
as discussed infra, she failed to appeal the court’s June 12, 2017 order denying
her motions to set aside the sheriff’s sale.
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erred by not setting aside the execution because it did not comply with Rule
3121. Id. at 31.
As noted above, Appellant raised these arguments in her motions to set
aside the sheriff’s sale and “Argument to Set Aside Sheriff Sale,” which the
court had denied on June 12, 2017. Rather than appeal, Appellant, on June
21, 2017, elected to file “objections” to the court’s June 12th order. The court,
however, did not vacate its June 12th order or resolve Appellant’s “objections”
until August 21, 2017, more than thirty days after its June 12th order.
In Oak Tree Condominium Ass’n v. Greene, 133 A.3d 113 (Pa.
Cmwlth. 2016), our Commonwealth Court addressed a similar situation. 27 In
Greene, the trial court had denied the plaintiff’s petition to set aside the
sheriff’s sale of the property. Greene, 133 A.3d at 115. The plaintiff filed a
motion for reconsideration, which the trial court addressed after more than
thirty days had elapsed from its initial order denying the petition to set aside.
Id. The trial court thus held that because it did not explicitly grant the motion
for reconsideration within thirty days, it had no jurisdiction to resolve the
motion for reconsideration. Id. The plaintiff appealed but the Commonwealth
Court agreed, holding, “a trial court relinquishes its ability to act once the 30–
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27“Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012).
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day period has passed and a motion for reconsideration has not been
expressly granted to toll the appeal period.” Id. Thus, the Greene Court
quashed the plaintiff’s appeal because it failed to appeal the order denying its
petition to set aside the sheriff’s sale within thirty days. Id. at 117.
Instantly, like the plaintiff in Greene, Appellant did not appeal the
court’s June 12, 2017 order denying her multiple motions to set aside the
sheriff’s sale. See Greene, 113 A.3d at 115. Rather, similar to the Greene
plaintiff’s decision to file a motion for reconsideration, Appellant filed
“objections,” which were in the nature of a motion for reconsideration, to the
court’s order on June 21, 2017. See id. But, identical to the trial court in
Greene, the instant trial court did not rule on Appellant’s objections until well
after the thirty-day time period to appeal had elapsed. See id.
Accordingly, we quash Appellant’s appeal to the extent she challenges
the court’s June 12, 2017 order denying her motions to set aside the sheriff’s
sale. See id.
Finally, the trial court has asked this Court for authorization to bar
Appellant from filing any pleadings pertaining to long-resolved issues. We
decline to respond to the trial court’s request, as Rule 233.1 provides it with
sufficient authority. As noted above, Appellee did not cross-appeal from the
trial court’s denial of its Rule 233.1 motion. Appellee is free to file, and the
trial court is free to rule on, a motion to dismiss under Rule 233.1.
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J-S10032-18
For these reasons, we affirm the court’s order below in part and quash
the appeal to the extent Appellant is appealing the court’s June 12, 2017
orders denying her petition to set aside the sheriff’s sale.
Appeal from the August 23, 2017 order quashed to the extent it resolved
Appellant’s fifth and sixth issues on appeal. The order is otherwise affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:3/20/18
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