J. A20011/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
WALLACE LEWANDOWSKI, : IN THE SUPERIOR COURT OF
JOSEPH SCHMIDT, MARIE McALEER, : PENNSYLVANIA
PETER TROLENE, JR. AND :
JAMES KRESS :
:
v. :
:
WACHOVIA BANK, N.A., AS TRUSTEE :
N/K/A U.S. BANK NATIONAL :
ASSOCIATION AS TRUSTEE :
:
APPEAL OF: JAMES KRESS AND :
PETER TROLENE, JR., : No. 2068 EDA 2013
:
Appellants :
Appeal from the Order Dated June 11, 2013,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. April Term, 2006, No. 1246
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 16, 2014
Appellants appeal from the order denying their petition to set aside a
sheriff’s sale. Finding no error, we affirm.
The trial court accurately summarized the complex procedural history
of this case:
The instant matter is an appeal by James Kress
and Peter Trolene Jr. (hereinafter “Kress” and
“Trolene,”) from this Court’s denial of their Petition
to Set Aside Sheriff’s Sale.
The procedural history of this case is extremely
convoluted due to the incomprehensible and bizarre
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motions, petitions, and appeals that the Kress and
Trolene, proceeding pro se, have filed over the past
several years. On April 6, 2006, Wachovia Bank, NA
(hereinafter “Wachovia”), as trustee for US Bank NA,
filed a Petition for Rule to Show Cause Why Property
Should Not Be Sold Free and Clear of All Liens and
Encumbrances. The petition pertained to tax claims
held by Wachovia for unpaid real estate taxes
assessed by the City of Philadelphia and the School
District of Philadelphia for property at 1807-1819
Blair Street, Philadelphia, PA, for tax years 1986
through 1996. Answer to Petition to Set Aside at 8.
Pursuant to 53 P.S. § 7283, Wachovia had a Tax
Information Certificate (hereinafter “TIC”) prepared,
identifying Wallace Lewandowski and Joseph Schmidt
as the record owners of the subject property. Id., at
8-9. Based off of the information on the TIC,
Wachovia named Wallace Lewandowski and Joseph
Schmidt as the respondents on the tax petition.
A hearing was scheduled for July 25, 2006,
with notice sent to all parties of record. The Trust
also posted the Tax Petition and Rule Returnable
Order to the subject property, pursuant to 53 P.S.
§ 7193.2(a)(1)-(3). Id. at 9. After the July 25
hearing, Common Pleas Court Judge Joe Dych
entered an Assessment of Damages Order, ordering
that the property be sold at tax sale. Id. The
property was listed for the November 21, 2006
Sheriff’s Sale and notice of the sale was provided to
all entitled parties, as required by 53 P.S.
§ 7193.2(c). Id. Additionally, the Philadelphia
Sheriff’s Department posted notice of the sale on the
property. Id. at 10. At the Sheriff’s Sale, a third
party, Rosinski Group, Inc. (hereinafter “Rosinski”),
was the successful bidder. Rosinski settled with the
Sheriff’s Department on February 5, 2007, and the
Sheriff’s Deed was recorded March 5, 2007. Id.
Prior to this point, neither Kress nor Trolene
had been involved in the matter; however, Kress
interjected himself by filing Statements of Claim on
May 16, 2007 and February 27, 2009, alleging
adverse possession of the subject property at 1819-
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1821 Blair Street. Answer to Petition to Set Aside,
Ex. F and G. In response, Rosinski commenced a
quiet title action against Kress. On October 22,
2010, Common Pleas Court Judge Mark Bernstein
entered an Order declaring that Rosinski owned a
portion of the property, from 1807-1817 Blair Street,
in fee simple. Answer to Petition to Set Aside at 11.
This Order also incorporated a stipulation between
the two parties whereby Kress and Rosinski agreed
to share the cost of appraising 1819-1821 Blair St.,
with Kress receiving a payment between $17,500
and $25,000 in exchange for his recognition of
Rosinski as the grantee of the property. See
Rosinski Grp., Inc. v. Kress, 40 A.3d 192 (Pa. Super.
Ct. 2011), reargument denied (Feb. 27, 2012),
app. denied, 50 A.3d 126 (Pa. 2012). Kress
appealed the portion of the Order approving the
stipulation. However, the Superior Court affirmed
Judge Bernstein on December 15, 2011, and Kress’
petition for permission to appeal to the Pennsylvania
Supreme Court was denied on August 21, 2012. Id.
The instant action began on October 3, 2012,
when Kress and Trolene filed a Petition to Set Aside
Sheriff’s Sale. That Petition named six parties as
respondents, including the City of Philadelphia, the
Sheriff of Philadelphia County, Wachovia, and the
prior owners of the subject property. Petition to Set
Aside at 10-11. They argued two different theories:
First, they argued that Kress remained a rightful
owner of 1819-1821 Blair St. through his claim of
adverse possession. Petition to Set Aside at 17;
Answer to Petition to Set Aside, Ex. F. Alternatively,
Kress and Trolene argued that the respondents to
the initial tax sale petition (Lewandowski and
Schmidt) were deceased, but had transferred the
property interest in 1819-1821 Blair St. to Trolene
prior to the underlying tax sale. Trolene testified
that, around the year 1999, his father had acquired
title to 1819, 1820, and 1821 Blair St. N.O.T.,
June 6, 2013, pages 9-10. Trolene’s father allegedly
gifted those properties to Trolene, who was merely
responsible for paying the taxes. Trolene testified to
receiving a tax bill from the City of Philadelphia each
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year until 2007, when he inquired into the bill for tax
year 2006. Id. at 10-11. Supposedly, Trolene’s
2007 inquiry into the missing tax bill gave him his
first notice that the property had been sold due to
delinquent taxes. Id.
Kress and Trolene maintained that either of
these theories of ownership made the earlier
Sheriff’s Sale improper, because they, as the rightful
owners of 1819-1821 Blair St., had paid all taxes
due on the property and had never received notice of
the underlying tax petition. Petition to Set Aside at
38. They claimed that, as they were “Indispensable,
Necessary parties” to the action, their absence from
and lack of notice regarding the Sheriff’s Sale
proceedings had the legal effect of stripping
Judge Dych of jurisdiction to issue the Order to
Assess Damages, and/or the Sheriff of legal
authority to execute the Sale. Petition to Set Aside
at 23.
On October 23, 2012, Kress and Trolene filed a
Motion to Intervene, which was substantially similar
to their Petition to Set Aside. On December 10,
2012, the City of Philadelphia and the Sheriff of
Philadelphia County filed a Motion to Dismiss,
arguing that their inclusion as parties to the
proceedings was improper. On January 22, 2013,
Common Pleas Court Judge Idee Fox granted that
Motion, dismissing the City and the Sheriff from the
action. That same day, Judge Fox granted the
Motion to Intervene and scheduled a hearing on their
Petition to Set Aside.
On March 5, 2013, Kress and Trolene filed a
Motion for Extraordinary Relief, seeking to postpone
the hearing on their Petition to Set Aside and also
seeking permission to file new pleadings. On April 8,
2013, this Court ordered the hearing on the Petition
to Set Aside to be continued, by agreement, to
May 9, 2013, but denied Kress and Trolene’s request
to file new pleadings. After further rescheduling, the
hearing on the Petition to Set Aside was eventually
conducted on June 6, 2013. That hearing included
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testimony from Kress, Trolene, Pamela
Harris-Williams (counsel for Wachovia), and Tony
Sovinski, who is the president of Rosinski and the
purchaser of the subject property. (N.O.T. June 6,
2013, page 3). On June 12, 2013, this Court issued
a final Order, denying Kress and Trolene’s Petition to
Set Aside. On June 20, 2013, Kress and Trolene
filed a post-trial motion, pursuant to Pa. R.C.P.
227.1, which this Court denied for being procedurally
improper.
On July 11, 2013, Kress and Trolene filed the
instant appeal with the Pennsylvania Superior Court,
prompting this Court to order them to submit a
detailed and itemized Statement of Errors
Complained of (hereinafter “1925(b) Statement” or
“Statement”), pursuant to Pa. R.A.P. 1925(b). On
August 2, 2013, Kress and Trolene filed their
1925(b) statement[.]
Trial court opinion, dated 8/8/13 at 1-4 (footnotes omitted).
We find that appellants have waived all issues on appeal. In response
to the trial court’s order to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., the appellants
filed a document over 50 pages in length, challenging virtually every aspect
of this case in a rambling, sometimes incoherent, fashion.
Pa.R.A.P. 1925 is intended to aid trial judges in
identifying and focusing upon those issues which the
parties plan to raise on appeal. Rule 1925 is thus a
crucial component of the appellate process.
[Commonwealth v.] Lord, 553 Pa. [415] at 417,
719 A.2d [306 (1998)] at 308. “When the trial court
has to guess what issues an appellant is appealing,
that is not enough for meaningful review.”
Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa.Super.2001). “When an appellant fails
adequately to identify in a concise manner the issues
sought to be pursued on appeal, the trial court is
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impeded in its preparation of a legal analysis which is
pertinent to those issues.” In re Estate of
Daubert, 757 A.2d 962, 963 (Pa.Super.2000). “In
other words, a Concise Statement which is too vague
to allow the court to identify the issues raised on
appeal is the functional equivalent of no Concise
Statement at all.” Dowling, 778 A.2d at 686. See
Commonwealth v. Seibert, 799 A.2d 54, 2002 WL
89473, at *4, (Pa.Super.2002).
Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super. 2002).
In addition to concise statements that waive issues because they are
too vague, this court has likewise found that those concise statements that
are too prolix may also serve to waive their issues. In Jiricko v. Geico
Insurance Co., 947 A.2d 206 (Pa.Super. 2008), appeal denied, 958 A.2d
1048 (Pa. 2008), this court found the issues on appeal were waived because
the statement was too lengthy and was “an incoherent, confusing,
redundant, defamatory rant.” Jiricko, 947 A.2d at 213. The same may be
found here. In addition to repeatedly accusing Wachovia of stealing their
property,1 appellants’ concise statement is rambling, cites to inappropriate
authority, and often lapses into incoherent sentence fragments:
Pursuant to preparation for the filing of a
petition, (Pamela Harris-Williams, Esq., for
Linebarger, Esq.), for delinquent tax lien judgment
against property in the name of Lewandowski,
Schmidt and McAleer as reputed owners of property
1807 to 1815 Blair St., Phila. Pa. 19125 for back
taxes, pursuant to 53 P.S. § 7101 to § 7455 of the
Municipal Claims & Tax lien Act, (hereinafter MCTLA).
1
Concise Statement, 8/2/13 at 1-A and 3-A.
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The Standing of Wachovia Bank & Linebarger,
Esq., et al., as set forth in depth on pages 2 to 5 of
the Petition filed April 3, 2006 by Linebarger’s
Attorney, (Exhibit “E”), Pamela Harris-Williams, Esq.,
Petitioners.
Concise Statement, 8/2/13 at 2-A.
We find that appellants’ all-encompassing, and yet scattershot,
approach to the issues in their overlong and foggy “concise” statement
effectively obscures any issues they wished to raise on appeal. We agree
with the trial court that appellants have waived their issues.
Moreover, we find that neither appellant has standing.
“The concept of standing, an element of
justiciability, is a fundamental one in our
jurisprudence: no matter will be adjudicated by our
courts unless it is brought by a party aggrieved in
that his or her rights have been invaded or infringed
by the matter complained of.” Id. “The purpose of
this rule is to ensure that cases are presented to the
court by one having a genuine, and not merely a
theoretical, interest in the matter.” Id. “Thus the
traditional test for standing is that the proponent of
the action must have a direct, substantial and
immediate interest in the matter at hand.” Id.
D.G. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014), quoting J.A.L. v. E.P.H.,
682 A.2d 1314, 1318 (Pa. 1996).
The record reveals that appellant Trolene conveyed his entire interest
in the disputed property to appellant Kress by quitclaim deed dated July 2,
2009, and recorded July 15, 2009,2 long before appellants filed their petition
2
See Record Document No. 21, Exhibit I and Record Document No. 32 at
page 8-A.
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to set aside the sheriff’s sale. The quitclaim deed serves to render appellant
Trolene no longer an aggrieved party, and therefore, appellant Trolene has
no standing to bring this appeal. Insilco Corporation v. Rayburn, 543
A.2d 120, 125-126 (Pa.Super. 1988).
As for Kress, he has no valid interest whatsoever in the property. The
whole basis for Kress’ original claim to the property was an inchoate
assertion of adverse possession that has never been litigated and has never
been reduced to a favorable judgment.3 Without a judicial finding that Kress
had title by adverse possession, he holds only a theoretical claim.
Even now, all Kress has is a quitclaim deed from Trolene that was
executed and recorded long after the sheriff’s deed to the property from the
tax sale was recorded. Such a deed cannot overcome a previously lawfully
recorded deed. Kress is not a bona fide purchaser pursuant to that latter
deed because the recording of the former sheriff’s deed provides public
notice of another’s title. The purpose and effect of Pennsylvania’s recording
statutes is to protect bona fide purchasers. Poffenberger v. Goldstein,
776 A.2d 1037, 1042 (Pa.Cmwlth. 2001). “The recording of a deed serves
to provide public notice in whom the title resides. To be deemed to be a
bona fide purchaser, however, one must pay valuable consideration, have no
notice of the outstanding rights of others, and act in good faith.” Id.
3
In fact, Kress did not even raise his adverse possession claim until after
the sheriff’s deed was recorded.
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(emphasis in original). Since Kress had constructive notice of the recorded
sheriff’s deed, he has no valid claim to the property under the later quitclaim
deed from Trolene. Consequently, Kress is likewise not an aggrieved party
and is without standing.
Accordingly, having found that appellants have waived their issues and
do not have standing, we will affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2014
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