Deutsche Bank National Trust v. Taggart, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEUTSCHE BANK NATIONAL TRUST IN THE SUPERIOR COURT OF
COMPANY PENNSYLVANIA
v.
KENNETH TAGGART
No. 1037 EDA 2018
Appellant
Appeal from the Order Entered February 22, 2018
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2010-07592
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 12, 2019
Kenneth Taggart appeals from the order entered February 22, 2018,
and docketed February 27, 2018, in the Bucks County Court of Common Pleas,
denying his petition to strike a discontinuance filed by Deutsche Bank National
Trust Company ("Deutsche Bank"), which ended Deutsche Bank's mortgage
foreclosure action against Taggart. For the reasons below, we affirm.
The facts and convoluted procedural history underlying Taggart's appeal
are as follows. On July 27, 2010, Deutsche Bank filed a complaint in mortgage
foreclosure against Taggart, alleging he failed to make any mortgage
payments on his property located at 45 Heron Road in Holland, Pennsylvania,
since March 1, 2009. See Complaint, 7/27/2010, at III 2-5. Deutsche Bank
averred that Taggart still owed more than $423,000.00 in principal, interest
and fees. See id. at 116. Taggart initially removed the action to federal court,
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however, in October of 2011, a federal district court judge remanded the case
back to the Bucks County Court of Common Pleas. Thereafter, Taggart filed
an answer with new matter and a counterclaim in November of 2012, and
Deutsche Bank filed preliminary objections in December of 2012. Taggart
then filed a motion for judgment on the pleadings and an answer to Deutsche
Bank's preliminary objections in January of 2013. No further action was taken
by the parties or the court for the next two years.
On July 7, 2015, the trial court entered a preliminary termination order,
pursuant to Bucks County Administrative Order No. 29,1 which informed the
parties the court intended to terminate the matter for lack of prosecution in
45 days unless one of the following actions occurred: (1) Deutsche Bank files
a praecipe to settle, discontinue or end the matter; (2) the parties file an
agreed case management order; or (3) either party files a case status report
and request for a hearing. See Order, 7/7/2015. On August 20, 2015 (the
44th day after entry of the court's preliminary termination order), Deutsche
Bank filed the following "Statement of Intention to Proceed:"
1
Bucks County Administrative Order No. 29 permits the court administrator
to clear the docket of any pending civil matter "in which there has been no
activity reported on the docket for a period of more than two years[.]" Bucks
County Administrative Order No. 29 at 11 1. As will be discussed infra, the
order further provides for the reactivation of any matter terminated pursuant
to the order by petition and rule submitted to the trial court. See id. at 11 6.
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This case is in active Litigation. [Deutsche Bank] intends to
proceed with this matter; therefore it should remain on active
status.
Statement of Intention to Proceed, 8/20/2015. Nevertheless, on September
10, 2015, the trial court entered an order terminating this matter.2 Notice of
the termination order was sent to the parties on September 29, 2015,
pursuant to Pennsylvania Rule of Civil Procedure 236.3
Thereafter, on December 21, 2015, Deutsche Bank filed a motion to
reinstate its action. See Plaintiff's Motion to Reinstate, 12/21/2015.
Specifically, Deutsche Bank averred: (1) it "was required to place the instant
matter on hold due to associated protracted issues between the parties[;]"
(2) "counsel never received a copy of the [September 10, 2015,] order
terminating the case[;]" and (3) Taggart has "enjoyed the use and possession
of the property, despite [the] fact that the mortgage has been in default for a
period of over six (6) years." See id. at III 6, 11, 17. On January 19, 2016,
Taggart, proceeding pro se,4 filed a response/opposition to Deutsche Bank's
motion to reinstate, and requested the court strike the motion as untimely
2 Although Deutsche Bank notified the trial court of its intent to proceed with
the foreclosure action within the requisite 45 days, it did not follow the
procedure outlined in the July 7, 2015, order.
3 Rule 236 requires the prothonotary to give written notice to the parties of
the entry of any order, and record the date of such notice on the docket. See
Pa.R.C.P. 236(a)(2), (b).
4At various times, Taggart has proceeded both with counsel and pro se in this
matter. He has also filed pro se documents while represented by counsel.
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filed. See Response/Opposition to Motion to Reinstate, 1/19/2016. He
insisted that Deutsche Bank had to proceed via Pennsylvania Rules of Civil
Procedure 237.3(b) and 3051, which dictate relief from a judgement of non
pros, and was required to file its petition within 10 days of the entry of
judgment on the docket. See Pa.R.C.P. 237.3(b)(1). On October 6, 2016,
the trial court entered the following order, granting Deutsche Bank's motion:
AND NOW, this 6th day of October, 2016, upon consideration
of the "Motion to Reinstate" filed by Plaintiff, [Deutsche Bank],
and the response thereto filed by Defendant, [Taggart], it is
hereby ORDERED and DECREED that Plaintiff's Motion to Reinstate
is GRANTED.
Order, 10/6/2016. On October 17, 2016, Taggart, now represented by
counsel, filed both a motion for reconsideration and a notice of appeal. By
order entered January 9, 2017, this Court granted Deutsche Bank's application
to quash the appeal, because it was from an interlocutory order. See Docket
No. 3414 EDA 2016.
Next, Taggart asserts he attempted to file a praecipe in the trial court
to enter judgment in his favor on May 9, 2017.5 However, he claims the
prothonotary refused to accept his praecipe, but instead, incorrectly noted on
5 We note the purported praecipe is in the reproduced record, but not in the
certified record. However, "under the Pennsylvania Rules of Appellate
Procedure, any document which is not part of the officially certified record is
deemed non-existent-a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in
the reproduced record." Parr v. Ford Motor Co., 109 A.3d 682, 695 n.10
(Pa. Super. 2014) (en banc) (quotation omitted), appeal denied, 123 A.3d 331
(Pa. 2015), cert. denied, 136 S. Ct. 557 (U.S. 2015).
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the docket: "Order Entered Vacating Termination See Court Order of
10/7/16." See Docket Entry No. 99, 5/9/2017. In response, Taggart filed a
petition for writ of mandamus in this Court, in which he asserted: (1) the trial
court's October 6, 2017, order reinstating the action, did not vacate the prior
order entered September 10, 2015, terminating the action; (2) therefore,
Deutsche Bank was required to file a motion for reconsideration within 30 days
of the October 6, 2016, reinstatement order; (3) when Deutsche Bank failed
to do so, the trial court lost jurisdiction of the matter, and Taggart was entitled
to the entry of judgment in his favor; and (4) the prothonotary had no
discretion to refuse to enter his praecipe for judgment.6 See Docket No. 56
EDM 2017, Petition for Writ of Mandamus, 5/19/2017, at 1111 20-23, 27. This
Court denied the petition on July 9, 2017. See Docket No. 56 EDM 2017,
Order, 7/9/2017 (noting Superior Court has no power to issue writ of
mandamus to lower court unless ancillary to Superior Court proceedings).
Taggart did not appeal that ruling.
On November 16, 2017, Deutsche Bank filed a praecipe in the trial court
to mark the case discontinued and ended, without prejudice. Taggart filed a
petition to strike the discontinuance on December 8, 2017, which the trial
court denied on February 22, 2018. Notice of the entry of the order was not
6 On June 16, 2017, Taggart also filed a petition for writ of mandamus in the
Commonwealth Court, seeking the same relief. See 270 MD 2017. That
matter is still pending.
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sent to the parties until February 27, 2018. See Pa.R.C.P. 236. Taggart filed
a pro se motion for reconsideration on March 16, 2018, followed by this timely,
counseled appeal on March 28, 2018.7
Taggart raises the following two issues on appeal: (1) whether the trial
court erred when it granted Deutsche Bank's untimely and improper petition
to reinstate the case; and (2) whether the prothonotary erred when it rejected
Taggart's praecipe to enter final judgment pursuant to Pa.R.C.P. 1039.8
Preliminarily, we note Taggart filed this appeal from the order that
denied his petition to strike off Deutsche Bank's discontinuance. Nevertheless,
Taggart acknowledges in his brief that he "is not appealing the Denial of the
Petition to Modify the Discontinuance which is subject to the discretion of the
trial court."9 Taggart's Brief at 1. Rather, he is challenging: (1) the October
The trial court did not order Taggart to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court did,
however, file an opinion on May 10, 2018.
8We note Rule 1030 was rescinded effective January 1, 1984. See Pa.R.C.P.
1039. The Note refers litigant to Pa.R.C.P. 227.4 ("Entry of Judgment Upon
Praecipe of a Party").
9 Pennsylvania Rule of Civil Procedure 229 provides that "[a] discontinuance
shall be the exclusive method of voluntary termination of an action, in whole
or in part, by the plaintiff before commencement of the trial." Pa.R.C.P.
229(a). The Rule further provides however, that a court "upon petition and
after notice, may strike off a discontinuance in order to protect the rights of
any party from unreasonable inconvenience, vexation, harassment, expense,
or prejudice." Pa.R.C.P. 229(c). Nevertheless, "[t]he authority to strike off a
discontinuance is vested in the sound discretion of the trial court, and we will
not reverse absent an abuse of that discretion." Nastasiak v. Scoville
Enterprises, Ltd., 618 A.2d 471, 472 (Pa. Super. 1993) (quotation omitted).
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6, 2016, order of the trial court, which reinstated the foreclosure action after
it was administratively terminated, and (2) the prothontary's refusal to enter
judgment in his favor on May 9, 2017, as well as an alleged improper notation
on the docket on that date. See id.
We also recognize that on October 23, 2018, Deutsche Bank filed in this
Court a motion to quash the appeal, asserting Taggart "abandoned the only
timely appealed issue before this Court[,]" that is, the propriety of the order
denying his petition to strike off the discontinuance. Motion to Quash Appeal,
10/23/2018, at ¶ 31. Deutsche Bank claimed Taggart was attempting to
obtain review of "two unappealable issues that are long since time -barred."
Id. On November 19, 2018, this Court denied the motion to quash without
prejudice to Deutsche Bank to raise the issue again in its appellate brief before
the merits panel. Order, 11/19/2018. We note Deutsche Bank has not
requested we quash this appeal in its appellee brief. Nevertheless, we agree
with Taggart that the propriety of the trial court's October 6, 2016, order
granting Deutsche Bank's motion to reinstate the action is properly before us.
See Taggart's Brief at 1. Although a panel of this Court quashed Taggart's
prior appeal from the October 6, 2016, order as interlocutory, Taggart may
now challenge the court's decision to reinstate the matter since a final order
in this matter has been entered on the docket. See Rohm & Haas Co. v.
Lin, 992 A.2d 132, 149 (Pa. Super. 2010) ("Once an appeal is filed from a
final order, all prior interlocutory orders become reviewable."), cert. denied,
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565 U.S. 1093 (2011). With regard to Taggart's issue concerning the
prothonotary, as will be discussed infra, we find that claim is not properly on
appeal.
Taggart's first issue on appeal challenges the trial court's October 6,
2016, order reinstating Deutsche Bank's foreclosure action. Because this
specific claim involves an interpretation of the Pennsylvania Rules of Civil
Procedure, we are presented with "a question of law, for which our standard
of review is de novo and our scope of review is plenary." Roth v. Ross, 85
A.3d 590, 592 (Pa. Super. 2014).
Taggart explains that when Deutsche Bank failed to comply with any of
the three options set forth in the preliminary termination order, but rather,
filed a "Statement of Intention to Proceed," the trial court properly terminated
the action. See Taggart's Brief at 24-25. Accordingly, he insists the court's
September 10, 2015, termination order was a final order, and the court lost
jurisdiction in the matter 30 days later when Deutsche Bank failed to appeal
or take any other action. See id. at 21, 23. Taggart further argues the court
had no authority to reinstate the matter pursuant to Pennsylvania Rule of Civil
Procedure 230.2 ("Termination of Inactive Cases"), because that Rule was
suspended during the time the relevant periods in this case.1° See id. at 25-
1° Indeed, Rule 230.2, which was adopted in 2003, was suspended on April
23, 2014. It was later reinstated and amended on December 9, 2015, with
an effective date of December 31, 2016. See Pa.R.C.P. 230.2, Credits. Here,
the order terminating the case was entered on September 10, 2015, and the
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26. Rather, he asserts "[t]he proper Rule that would apply to the proposed
Reinstatement would be ... Pa.R.C.P. 3051[,]" which applies to relief from a
judgment of non pros. Id. at 26. Taggart insists Deutsche Bank failed to
"properly plead[] or meet the standards" for relief under this Rule. Id.
Specifically, he contends Deutsche Bank failed to provide evidence that (1) its
petition was timely filed, (2) it had a meritorious action, and (3) the record of
the proceedings do not demonstrate there was a lack of due diligence on the
part of the plaintiff, the plaintiff failed to show a compelling reason for the
delay and the delay has caused actual prejudice to the defendant. See id. at
32, citing Pa.R.C.P. 3051(c). Taggart insists Deutsche Bank's petition for
reinstatement was, in actuality, an untimely motion for reconsideration. See
id. at 32-34.
In response to Taggart's prior appeal from the October 2016
reinstatement order, the trial court filed an opinion on December 21, 2017.
The court first recognized that Rule 230.2 was suspended at the relevant times
in this matter. See Trial Court Opinion, 12/21/2016, at 4. Therefore, the
court proceeded to analyze Deutsche Bank's reinstatement motion under Rule
3051(c), which governs the opening of a judgment of non pros. See id.
Unlike Taggart's assertion, however, the trial court found Deutsche Bank's
motion to be meritorious. See id. at 5 (concluding (1) it was unclear from
order reinstating the case was entered on October 6, 2016, both before the
effective date of the Rule's reinstatement.
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the docket whether Deutsche Bank was served with the termination order;11
(2) the pleadings clearly demonstrate Deutsche Bank has a meritorious claim;
(3) the docket demonstrated the delay in activity was "the result of pending
motions filed by both parties[;]" and (4) "Taggart is benefiting, rather than
being prejudiced, by the delay, as it allows his continued occupancy of the
property despite his alleged default in payment of the mortgage."). The court
also noted that even if it had considered the petition under Rule 230.2, it
would arrive at the same decision. See id. at 5-6.
In its brief, however, Deutsche Bank contends the Rule applicable to the
termination and reinstatement of the present matter is Rule of Judicial
Administration 1901. See Deutsche Bank's Brief at 10-12. We agree.
Here, the trial court acknowledged that it proceeded pursuant to Bucks
County Administrative Order No. 29, when it entered a preliminary termination
order on July 7, 2015. See Trial Court Opinion, 12/21/2016, at 2. That local
Rule was promulgated pursuant to Pennsylvania Rule of Judicial
Administration 1901, which provides, in pertinent part:
It is the policy of the unified judicial system to bring each pending
matter to a final conclusion as promptly as possible consistently
with the character of the matter and the resources of the system.
Where a matter has been inactive for an unreasonable period of
11
Although the docket indicates Pa.R.C.P. 236 notice was sent on September
29, 2015, the trial court correctly observed that "a Certificate of Service was
not attached to the Termination Order." Trial Court Opinion, 12/21/2016, at
5.
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time, the tribunal, on its own motion, shall enter an appropriate
order terminating the matter.
Pa.R.J.A. 1901(a). Subsection (b)(1) of the Rule directs the courts of common
pleas to enact local rules to implement this policy. See Pa.R.J.A. 1901(b)(1).
Bucks County Administrative Order No. 29 was promulgated to implement the
termination policy in Rule 1901.
Order No. 29 directs the court administrator to compile, each month, a
list of pending civil matters "in which there has been no activity reported on
the docket for a period of more than two years[.]" B.C.A. Order No. 29 at (1).
The administrator must then give written notice to the parties that the matter
will be terminated in 30 days "unless a certification of active status is filed
before the termination date." Id. at (2). If no response is filed with the
requisite period, the Order stated: "the court administrator shall provide the
prothonotary with a list of all cases to be terminated and it shall then be the
duty of the prothonotary to mark the dockets accordingly[.]" Id. at (5).
However, Order No. 29 also provides for the reactivation of terminated cases:
Any application to reactivate any matter terminated in accordance
with the provisions of paragraph (5) shall be submitted to and
decided by the assigned Judge. Said application shall be made by
petition and rule. The Court, in acting upon any such application,
may proceed solely on the basis of the petition, if no answer has
been filed. If an answer has been filed, the application should
proceed in accordance with the provisions of Pa.R.C.P. 209 and
B.C.R.C.P. *266. No order authorizing reactivation of any matter
terminated pursuant to these Rules shall be effective except upon
payment of the prevailing fee for commencement of actions
chargeable by the Office of the prothonotary.
B.C.A. Order No. 29 at (6).
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Here, it is evident the trial court took a common sense approach to the
matter. Although Deutsche Bank did not follow the specific instructions in the
preliminary termination order, it did, in fact, file a statement of its intention
to proceed with the foreclosure action within the required 45 days. Although
the court still, initially, terminated the action, it acted within its discretion
when it reinstated the case upon Deutsche Bank's petition, which averred (1)
Deutsche Bank never received the final termination order, (2) it had placed
the matter on hold due to "associated protracted issues between the parties,"
and (3) the mortgage has remained in default.12 Deutsche Bank's Motion to
Reinstate, 12/21/2015, at 1111 5, 6, 11. See also B.C.A. Order No. 29 at (6);
Pa.R.J.A. 1901, Note ("Where a party objects to the termination of an inactive
matter, it is intended that the court exercise its judicial discretion."). In its
December 2016 opinion, the court emphasized:
Taggart has allegedly been in default in mortgage payments for
almost eight (8) years. The delay in prosecuting the case only
served to benefit [him], as he continues to occupy his residence
despite the fact that no payments have allegedly been made since
March 2009.
Any prejudice caused by the failure to file a Motion to
Reinstate within thirty (30) days is clearly outweighed by the
prejudice caused by Taggart's alleged default.
12 We note Taggart asserts in his Reply Brief that Deutsche Bank did not pay
the fee upon reinstatement as required in Subsection (6) of Order No. 29.
Taggart's Reply Brief at 17. However, it does not appear Taggart ever made
this argument before the trial court, nor did he provide any proof that the fee
was not paid. Accordingly, we decline to find error on that basis.
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Trial Court Opinion, 12/19/2016, at 6. Under these circumstances, the
reinstatement of Deutsche Bank's foreclosure action did not constitute an
error or abuse of discretion.
In his second issue, Taggart asserts the prothonotary erred when it
rejected a pracipe to enter judgment in his favor which he presented in May
of 2017. We find this matter is not properly before us. The certified record
contains no evidence to support Taggart's allegation. Indeed, when the
prothonotary purportedly refused to enter judgment, Taggart did not seek
relief in the trial court. Rather, he filed the mandamus action in this Court.13
In fact, Taggart never raised this claim in the trial court, nor did he ask the
trial court to direct the prothonotary to enter judgment. Accordingly, this
claim is not properly before us for review. See Harber Philadelphia Ctr.
City Office Ltd. v. LPCI Ltd. P'ship, 764 A.2d 1100, 1105 (Pa. Super. 2000)
("The Superior Court, as an error -correcting court, may not purport to reverse
a trial court's order where the only basis for a finding of error is a claim that
the responsible party never gave the trial court an opportunity to
consider."), appeal denied, 782 A.2d 546 (Pa. 2001).14
13 We emphasize that when this Court denied relief, Taggart did not appeal
that ruling.
14
Taggart, similarly, never requested the trial court to correct the May 9,
2017, docket notation, which he asserts was improperly entered by the
prothonotary. Therefore, that claim, too, is not properly before this Court.
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Order affirmed. Taggart's Application to Take Judicial Notice is Denied.'5
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/12/19
15After oral argument, on June 14, 2019, Taggart filed an application for relief,
asking the panel to take judicial notice of "the docket, case law, and relevant
pleadings that are crucial to the adjudication of the issues that are the subject
of this appeal" pursuant to "Pa Rule 201." Application for Relief, 6/14/2019,
at 1. However, his "application" is essentially a rehash of his appellate brief.
Moreover, our research has uncovered no Pennsylvania Rule 201 that permits
such a pleading.
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