Bucano, B. v. The Law Offices of Gregory Javardian ( 2019 )

J-A20044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BIANCA BUCANO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
THE LAW OFFICES OF GREGORY :
JAVARDIAN, ET AL. :
:
Appellee : No. 2094 MDA 2018
Appeal from the Order Entered December 10, 2018
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2017-CV-04957-CV
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED: AUGUST 21, 2019
Appellant, Bianca Bucano, appeals from the order entered in the
Dauphin County Court of Common Pleas, which dismissed Appellant’s
complaint against Appellees, The Law Offices of Gregory Javardian (“the
Firm”) and others, and barred Appellant from future filings against the Firm
and others in, or arising from, the foreclosure action against her and her
Chapter 13 Bankruptcy. We affirm.
The trial court opinion sets forth the relevant background facts and
procedural history of this appeal as follows:
Appellant is currently an inmate at SCI Muncy.¹ Appellant’s
numerous filings have resulted in a lengthy procedural
history, which includes several appeals to the Superior Court
of Pennsylvania.² We…emphasize only the following history
relevant to this appeal.
¹ Appellant has been incarcerated and is serving a
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state sentence of 11¼ to 23½ 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.
² 2485 EDA 2016 (quashed sua sponte, as the appeal
taken from the July 15, 2016 order denying
[Appellant’s] petition to stay the sheriff’s sale is not
final and appealable), 794 EDA 2017 (quashed sua
sponte, as appeal taken from January 12, 2016 order
denying [Appellant’s] petition to stay Sheriff’s sale is
not final and appealable), 1578 EDA 2017 (quashed
sua sponte, as the appeal taken from the April 19,
2017 order is not final and appealable because no
order was entered on the lower court docket on this
date), 3173 EDA 2017 (affirmed in part and quashed
in part. To the extent Appellant was appealing the
court’s June 12, 2017 order denying her petition to set
aside the sheriff sale, the appeal was quashed. Appeal
from the August 23, 2017 order quashed to the extent
it asserts violations of Act 6 and non-compliance with
Rule 3121).
On May 16, 2013, Citizens Bank of Pennsylvania [(“Citizens
Bank”)] commenced mortgage foreclosure proceedings
against Appellant for a property located at 2 Harvest Hill
Drive, Effort, PA 18330. During the pendency of the
foreclosure action, Appellant filed for Chapter 13
Bankruptcy.³ The [Firm] served as counsel for Citizens
Bank in both matters. In August of 2014, a default action
was entered. 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.
After the foreclosure judgment was entered, and while she
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was incarcerated, Appellant filed serial 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 of
the sheriff’s sale. All of her motions were denied as being
procedurally, factually, legally, or jurisdictionally devoid of
merit, and the sheriff’s sale occurred on March 30, 2017. In
addition, Appellant filed several appeals that were quashed
by the Superior Court.
³ Later converted to Chapter 7 and Citizens Bank
received relief from the automatic stay to list the
property for Sheriff’s sale[.]
Around and after the date of the sheriff’s sale, Appellant
filed several motions and objections. In April of 2017, prior
to the delivery of the property’s deed, Appellant filed a
motion to set aside the sheriff’s sale alleging that the
foreclosure violated Act 6 and Act 91, that the sheriff’s sale
was procured by fraud, and that the sale price of the
property was below its actual value.
On June 12, 2017, the court denied Appellant’s motion to
set aside the sheriff’s sale. 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.” Further, according to the court, Appellant
“improperly attempted 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 had
repeatedly attempted to raise on numerous occasions prior
to the sheriff’s sale.” … Appellant did not appeal the June
12, 2017 order; rather, she filed objections to the order,
reiterating many of her prior arguments, including that the
value of the property was greater than the actual sale price.
At a hearing held in August of 2017, the trial court ruled
against Appellant on all outstanding matters. Appellant
appealed. The trial court, in its responsive opinion, noted
that Appellant had inundated it with numerous pleadings
collaterally attacking the default judgment in the 2014
mortgage foreclosure action. The trial court also requested
the Superior Court authorize it to summarily dismiss any
filings submitted by Appellant that raise matters which have
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been previously decided on their merits and that Appellant
be advised that neither court would 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
that appeal. The Superior Court declined to respond to this
request indicating that Rule 233.1 provides the trial court
with sufficient authority to make this ruling on its own. …
The Superior Court also addressed the issue asserted by
Appellant that fraud was committed when the then-
appellees lied to the bankruptcy court about the
amount owed and the value of the property. The Superior
Court, without addressing the viability of Appellant’s
arguments, concluded that the time to raise those
arguments had long past. The Court concluded that
Appellant failed to appeal the order denying her petition to
strike which rendered the default judgment final and
conclusive. …
* * *
Appellant is a pro se litigant who filed this civil lawsuit on
July 5, 2017 against the Firm, Citizens Bank, Monroe Court,
Single Source, and Appraiser Coleen Weissman, asserting
allegations of fraud in prior bankruptcy and
foreclosure actions and violations of various
consumer protection statutes. [The Firm and Citizens
Bank] filed a Motion to Dismiss and Request for Bar of
Future Pro Se Litigation Under Pa.R.C.P. 233.1(c) on the
grounds that these same or related claims have already
been raised and resolved in prior bankruptcy and
foreclosure actions, a Lackawanna County action,⁵ and
multiple appellate filings. This [c]ourt granted [the Firm and
Citizens Bank]’s Motion, dismissed the action,[1] and barred
Appellant from future filings against the Firm and Citizens
Bank related to the foreclosure action against her and other
related defendants for the property located at 2 Harvest Hill
Drive, Effort, PA 18330 and her Chapter 13 Bankruptcy
without leave of court.
____________________________________________
1 The court dismissed Appellant’s entire complaint with prejudice.
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⁵ 2017-CV-00908
(Trial Court Opinion, filed February 26, 2019, at 2-4) (some internal citations
omitted). Appellant filed a timely notice of appeal on December 27, 2018.
The trial court ordered Appellant on January 2, 2019, to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b);
Appellant timely complied on January 16, 2019.
Appellant raises the following issues for our review:
DID THE [TRIAL] COURT ERR WHEN IT DID NOT ADDRESS
[APPELLANT’S] SUBSTANTIVE PRESENTATION OF HER
CLAIMS?
DID THE [TRIAL] COURT ERR WHEN IT GAVE NO OPINION
ON THE ISSUES IN THE COMPLAINT?
[WHETHER] THE [TRIAL] COURT ERRED WHEN CLEAR AND
CONVINCING EVIDENCE FROM [APPELLANT] WAS
IGNORED?
DID THE [TRIAL] COURT ERR WHEN IT STATED IT WAS A
FORECLOSURE/BANKRUPTCY CASE?
DID THE [TRIAL] COURT ERR WHEN [IT] DID NOT
RECOGNIZE THE COMPLAINT IS THE FRAUDULENT TACTICS
OF THE LAW OFFICES OF GREGORY JAVARDIAN DEBT
COLLECTORS, VIOLATIONS OF THE FAIR DEBT
COLLECTIONS PRACTICES ACT (FDCPA) 73
PA.CONS.STAT.§ [2270.4]?
[WHETHER] THE [TRIAL] COURT ERRED WHEN IT
DISMISSED THE DEBT COLLECTORS, THE LAW OFFICES OF
GREGORY JAVARDIAN A/K/A “THE FIRM,” UNDER RULE
233.1?
[WHETHER] THE [TRIAL] COURT ERRED AS ONLY CITIZENS’
BANK FALLS UNDER RULE 233.1 HAVING FILED AS A
DEFENDANT BY PRO SE [APPELLANT] IN THE LACKAWANNA
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COUNTY COURT?
[WHETHER] THE [TRIAL] COURT ERRED BY DISMISSING
THE LAW OFFICES OF GREGORY JAVARDIAN BECAUSE
THERE HAS NEVER BEEN A PREVIOUS CIVIL SUIT WHERE
THE LAW OFFICES OF GREGORY JAVARDIAN WAS A
DEFENDANT AND [APPELLANT WAS] A PRO SE PLAINTIFF,
NOR HAS THERE BEEN ANY LITIGATION, RESOLUTION OR
DECISION BASED ON CIVIL RICO AND FDCPA FRAUD
VIOLATIONS?
(Appellant’s Brief at 3-4).2
In her issues combined, Appellant argues Appellees violated various
consumer protection statutes by fraudulently increasing the amount owed on
Appellant’s mortgage and misrepresenting old appraisals as new ones to
devalue her property. Appellant contends the Monroe County Court of
Common Pleas deliberately overlooked and failed to address her substantive
fraud claims, despite her clear and convincing evidence. Appellant also argues
Appellees are not subject to dismissal from the case per Rule 233.1 because
Appellees do not qualify as the same or related defendants under Rule 233.1,
____________________________________________
2 In Appellant’s Rule 1925(b) statement, she limits her challenge to the
dismissal of her complaint solely as to the Firm and that is how the trial court
addressed Appellant’s issues. Appellant’s statement of issues on appeal
likewise focuses on the Firm. Appellant’s brief makes no substantive
argument regarding dismissal of the complaint against the remaining three
named defendants. Thus, Appellant waived any claims in that regard. See
Pa.R.A.P. 1925(b); Pa.R.A.P. 2116; Pa.R.A.P. 2119(a); Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa.Super. 2007), appeal denied, 596 Pa. 703, 940
A.2d 362 (2008) (stating: “[I]t is an appellant’s duty to present arguments
that are sufficiently developed for our review. The brief must support the
claims with pertinent discussion, with references to the record and with
citations to legal authorities. … This Court will not act as counsel and will not
develop arguments on behalf of an appellant”).
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as Appellees’ were not a named party in Appellant’s previous foreclosure and
bankruptcy actions. Appellant concedes Citizen’s Bank was a named party in
a previous action and was inadvertently included in this action. Nevertheless,
Appellant suggests her claims in previous actions were not “resolved,” as no
court rendered a definite decision on the merits. Appellant concludes the trial
court failed to address the substantive fraud issues related to her foreclosure
and bankruptcy actions and incorrectly dismissed Appellees from the case
under Rule 233.1. We disagree.
Examining this issue implicates the following principles:
To the extent the question presented involves interpretation
of rules of civil procedure, our standard of review is de novo.
To the extent that this question involves an exercise of the
trial court’s discretion in granting [a] “motion to dismiss,”
our standard of review is abuse of discretion.
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Gray v. PennyMac Corp., 202 A.3d 712, 715 (Pa.Super. 2019).
Pennsylvania Rule of Civil Procedure 233.1 provides in relevant part as
follows:
Rule 233.1. Frivolous Litigation. Pro Se Plaintiff.
Motion to Dismiss
(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
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(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.
* * *
(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.
Pa.R.C.P. 233.1(a), (c).
In response to Appellant’s claims, the trial court reasoned as follows:
Appellant argues that Rule 223.1 does not apply and her
action against the Firm should not have been dismissed
since this is the first suit filed against the Firm. The Superior
Court has recently interpreted Rule 233.1 explaining that:
Rule 233.1 does not mandate the technical identity of
parties or claims imposed by res judicata or collateral
estoppel; rather it merely requires that the parties
and the claims raised in the current action be related
to those in the prior action and that those prior claims
have been resolved.
Coulter v Lindsay, 159 A.3d 947, 952 (Pa.Super. 2017)[,
appeal denied, 643 Pa. 125, 172 A.3d 1108 (2017), cert.
denied, ___ U.S. ___, 138 S. Ct. 2576, 201 L. Ed. 2d 293
(2018)] (emphasis added).
Appellant named the Firm as a defendant in the instant
lawsuit because of its role as counsel for Citizens Bank in
her prior foreclosure and bankruptcy actions. In the instant
appeal, Appellant raises the same issues regarding
discrepancies in the amounts owed by her in her bankruptcy
action as in her prior appeal. In Appellant’s prior appeal to
the Superior Court, docket No. 3173 EDA 2017, the Superior
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Court noted that Appellant asserted that Citizens Bank’s
counsel (the Firm) committed fraud by lying to the
bankruptcy court about the amount owed and the
value of the property. On this issue, the Superior Court
concluded, “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.” … Accordingly, it is clear
from the record in this case that Appellant has already
litigated this issue against Citizens Bank and the Firm and
the Superior Court resolved the issue.⁶ The claims against
the Firm in the instant appeal are clearly the same and/or
similar to those in the prior appeal relating to the
bankruptcy and foreclosure actions. Although the Firm may
not have been a named defendant in prior actions, as
counsel for the bank during the time of the bankruptcy and
foreclosure actions, the Firm and the claims against it in the
current action are “related” to those in the prior action and
those prior claims have been long-resolved.
⁶ The drafting committee’s recourse to the word
“resolved” in this context is significant. In Rule
233.1’s requirement that the matter [has] been
“resolved pursuant to a written settlement agreement
or a court proceeding,” the language assures that the
pro se litigant is availed of a chance to address his
claim subject to the contractual guarantee of a
settlement agreement or to the procedural safeguards
that attend a court proceeding. It does not require,
however, that the matter has progressed to a “final
judgment on the merits.” Gray v. Buonopane, 53
A.3d 829, 836 (Pa.Super. 2012), appeal denied, 619
Pa. 716, 64 A.3d 632 (2013)….
Conclusion
Accordingly, we ask the Superior Court of Pennsylvania to
affirm this Court’s Order of December 7, 2018 dismissing
Appellant’s Complaint with prejudice and barring her from
future filings against [the] Firm and Citizens Bank related to
the foreclosure action against her and other related
defendants for the property located at 2 Harvest Hill Drive,
Effort, PA 18330 and her Chapter 13 Bankruptcy Docket No.
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4-15-01587 without leave of Court.
(Trial Court Opinion at 5-7) (some internal citations omitted; emphasis in
original). The record supports the court’s decision. Here, as Citizens Bank’s
counsel in the foreclosure and bankruptcy actions, the Firm qualified as a
“related” defendant for purposes of Rule 233.1. See Coulter, supra.
Moreover, the record makes clear the issues Appellant raised in her complaint
have been long ago resolved in prior actions against other defendants related
to the Firm. See Gray, supra. Accordingly, Appellant’s issues merit no
relief, and we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2019
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