J-S58032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CONNIE GREENAWALT AND MARTIN IN THE SUPERIOR COURT OF
PETRATOS PENNSYLVANIA
Appellees
v.
SCOTT AND RACHEL KRISSINGER
Appellants No. 185 MDA 2015
Appeal from the Judgment Entered March 17, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2012-01188
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 04, 2015
Appellants, Scott and Rachel Krissinger, appeal from the judgment
entered in the Lebanon County Court of Common Pleas in favor of Appellees,
Connie Greenawalt and Martin Petratos, and against Appellants in this
ejectment action. We affirm.
The relevant facts and procedural history of this case are as follows.
In December 2003, Elsa H. Peters (“Elsa”) was the sole owner of 3204 Route
72, Jonestown, Lebanon County, Pennsylvania (“Jonestown Premises”). Elsa
obtained a mortgage on the Jonestown Premises from Ameriquest Mortgage
Company on December 23, 2003. The mortgage was ultimately assigned to
Deutsche Bank in February 2009. Following Elsa’s death in June 2009, her
children, Hugh V. Peters and Sarah P. Reynolds, became the executors of
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*Retired Senior Judge assigned to the Superior Court.
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Elsa’s estate. The mortgage on the Jonestown Premises went into arrears,
and Deutsche Bank filed a complaint for mortgage foreclosure against Mr.
Peters and Ms. Reynolds on March 18, 2010.1 Deutsche Bank subsequently
purchased the Jonestown Premises at a sheriff’s sale in 2011.
The trial court continues:
When [Deutsche Bank] became aware that [Appellants]
were residing in the residence, [the Bank] filed an Action
of Ejectment against them on August 26, 2011. Judgment
of Ejectment was entered [against Appellants] on February
3, 2012.
On February 14, 2012, [Appellants] filed for bankruptcy.
[Deutsche Bank] apparently did not wish to deal with the
Bankruptcy Court. Accordingly, [the Bank] withdrew its
ejectment action on March 19, 2012, and instead chose to
place [Jonestown Premises] for sale. On February 10,
2012, [Deutsche Bank] sold the [Jonestown Premises] to
[Appellees]. [Appellees] filed an Action in Ejectment on
June 15, 2012, and moved for Summary Judgment on
September 14, 2012.
Because [Appellants] claimed that they did not receive
adequate notice of the Mortgage Foreclosure and the
Sheriff’s Sale, [the court] denied [Appellees’] Motion for
Summary Judgment. On March 10, 2014, [the court] held
a Bench Trial on the issue of whether [Appellants] had
notice of the foreclosure proceedings. On that same day,
[the court] entered a verdict in favor of [Appellees] and
against [Appellants], granting [Appellees] possession of
the [Jonestown Premises] and damages in the amount of
$7,200.00.
On March 20, [2014,] [Appellants] filed a Motion for a New
Trial, and on April [9, 2014,] [Appellants] appealed to the
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1
The record fails to tell us when Appellants took possession of the property
at issue.
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Superior Court. …
(Trial Court Opinion, filed December 31, 2014, at 3-4). This Court remanded
the record for disposition of Appellants’ post-trial motion and quashed the
appeal as premature. The trial court subsequently denied Appellants’ post-
trial motion on December 31, 2014, and Appellants filed another notice of
appeal on January 26, 2015. On January 27, 2015, the court ordered
Appellants to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellants filed their Rule 1925(b)
statement on February 18, 2015, which the court deemed untimely.2
Appellant raises the following issues for our review:
WHETHER THE [TRIAL COURT] ERRED IN DENYING
[APPELLANTS’] MOTION TO DEEM CONCISE STATEMENT
OF MATTERS COMPLAINED OF ON APPEAL TIMELY, OR, IN
THE ALTERNATIVE, WHETHER THAT DENIAL IS OF NO
INSTANT IMPORT[.]
WHETHER THE [TRIAL COURT] ERRED IN DENYING
[APPELLANTS’] POST-TRIAL MOTION THEREBY AFFIRMING
ITS TRIAL VERDICT WHEN THERE WAS NO ACTUAL
SERVICE OF THE ACTION IN FORECLOSURE OR NOTICE OF
SHERIFF’S FORECLOSURE SALE[.]
(Appellants’ Brief at 8).
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2
Meanwhile, by order dated February 23, 2015, this Court directed
Appellants to file a praecipe to enter judgment on the verdict. Appellants
failed to comply and, on March 17, 2015, this Court again ordered Appellants
to praecipe for entry of judgment, or the appeal might be dismissed.
Appellants filed a response to this Court’s order on March 25, 2015, which
included a copy of Appellants’ praecipe to enter judgment filed on March 17,
2015, and a copy of the docket reflecting entry of final judgment against
Appellants that same day.
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In their first issue, Appellants argue their Rule 1925(b) statement was
timely. Appellants claim they filed their Rule 1925(b) statement within
twenty-one days of January 28, 2015, the date the prothonotary entered
Pa.R.C.P. 236 notice on the docket. Appellants conclude this Court should
deem their Rule 1925(b) statement timely. We agree.
“Whenever a trial court orders an appellant to file a concise statement
of [errors] complained of on appeal pursuant to Rule 1925(b), the appellant
must comply in a timely manner.” Greater Erie Indus. Development
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.Super. 2014)
(en banc) (quoting Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803
(Pa.Super. 2007)). A “failure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.”
Presque, supra at 224 (emphasis in original).
In civil cases, Rule 1925(b) requires: (1) the trial court must issue a
Rule 1925(b) order directing an appellant to file a response within twenty-
one days of that order; (2) the trial court must file the order with the
prothonotary; (3) the prothonotary must enter the order on the docket; (4)
the prothonotary must give written notice of the entry of the order to each
party, pursuant to Pa.R.C.P. 236; and (5) the prothonotary must record Rule
236 notice on the docket. See Forest Highlands Community Ass’n v.
Hammer, 879 A.2d 223, 227 (Pa.Super. 2005). “If any of the procedural
steps set forth above are not complied with, [a]ppellant’s failure to act in
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accordance with Rule 1925(b) will not result in a waiver of the issues sought
to be reviewed on appeal.” Id. (citation omitted) (stating in civil cases,
waiver for failure to comply with Rule 1925(b) order implicates notice
procedure set forth in Pa.R.C.P. 236). See Pa.R.C.P. 236.
Here, on January 27, 2015, the court entered an order on the docket
directing Appellants to file a Rule 1925(b) statement within twenty-one
days. See Forest Highlands, supra. Nevertheless, the docket expressly
indicates the prothonotary did not issue Rule 236 notice to Appellants until
January 28, 2015. See Pa.R.C.P. 236. Appellants filed their Rule 1925(b)
statement on February 18, 2015, exactly twenty-one days after Rule 236
notice was issued. Therefore, Appellants’ Rule 1925(b) statement was
timely filed.3 See Presque, supra.
In their second issue, Appellants argue their post-trial motion should
have been granted pursuant to Meritor Mortgage Corp.-East v.
Henderson, 617 A.2d 1323 (Pa.Super. 1992). Appellants contend they did
not receive actual notice of the mortgage foreclosure, and there was no
credible testimony to prove otherwise. Appellants allege the testimony of
George Christianson, the attorney for Mr. Peters and Ms. Reynolds, was
incredible due to conflicts of interests, as Attorney Christianson had
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3
Despite the trial court’s determination that Appellants’ Rule 1925(b)
statement was untimely, and the subsequent lack of a Rule 1925(a) opinion,
the court did address Appellants’ notice issue in its previous opinions.
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represented the mortgagor, mortgagee, and the Sheriff’s department at
various times throughout litigation. Appellants maintain they are entitled to
a new trial because there was no testimony supporting actual personal
service, and because constructive notice was invalid. Appellants conclude
this Court should reverse and grant Appellants a new trial. We disagree.
Instantly, the court addressed Appellants’ issue in its July 8, 2014
opinion as follows:
Notice is a cornerstone of constitutional due process. The
requirement of notice can be neither ignored nor waived.
Notice is considered so important that it is considered
“jurisdictional” (See, e.g., In re Galli’s Estate, 17 A.2d
899 (Pa. 1941)) so as to sanction “collateral attacks” on
what may otherwise appear to be a valid court decree.
See Brokans v. Melnick, 569 A.2d 1373, 1376
(Pa.Super. 1989). Within the context of mortgage
foreclosure proceedings, Pennsylvania has adopted a rule
governing notice. That rule states:
(a) In actions involving title to, interest in,
possession of, or charges or liens upon real
property, original process shall be served
upon the defendant in the manner provided
by Rule 400 et seq.
(b)(1) If in an action involving an interest in real
property the relief sought is possession or
mortgage foreclosure, original process also
shall be served upon any person not named
as a party who is found in possession of the
property. The sheriff shall note the service
in the return.
[Pa.R.C.P. 410(a),(b)(1)].
The case of Meritor Mortgage Corp.-East v.
Henderson, 617 A.2d 1323 (Pa.Super. 1992) applied Rule
410 in a context very similar to the one that is before [the
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court] today. In Meritor, the plaintiff-bank obtained title
to real estate following mortgage foreclosure litigation.
After an in rem judgment was entered in favor of the bank,
the bank then proceeded to file an ejectment action to
evict persons who were living at the property. The
defendants sought to defend against the ejectment by
alleging that the underlying mortgage foreclosure action by
which the plaintiff obtained title was void due to lack of
notice. The [t]rial [c]ourt rejected the defendants’
argument and enforced the plaintiff’s right to possession
via title. The Superior Court reversed the [t]rial [c]ourt
stating:
There remains to be considered the trial court’s
belief that the failure to make adequate service in
the action of mortgage foreclosure could not be
raised collaterally in the action of ejectment[.] …
[T]he conclusive character of a judgment or decree
depends not only upon the statutory grant of
jurisdiction to the court pronouncing it, but upon
actual jurisdiction over the persons whose rights are
the subject of the investigation. Unless the court
has the parties before it, by appearance or service of
process, it is obvious that it cannot bind them by its
adjudications[.] … If adequate notice of the
foreclosure action was not given, the court lacked
jurisdiction to enter judgment. It is never too late to
attack a judgment for want of jurisdiction of either
the subject matter or the person…. When there is no
jurisdiction there is no authority to pronounce
judgment.
The appellant has alleged and has filed affidavits to
support his defense that the mortgage foreclosure
judgment was void for lack of jurisdiction. If this is
correct, then the judgment entered in the mortgage
foreclosure action can be attacked collaterally in the
mortgagee’s action in ejectment to recover
possession of the mortgaged premises from an heir
who, with permission from the remaining heirs, was
and remains in possession of the mortgaged
premises. When the trial court held that such a
defense could not be raised in the ejectment action,
it committed legal error.
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Id. at 1325-26 (internal citations omitted).
In Federal National Mortgage Association v. Citiano,
834 A.2d 645 (Pa.Super. 2003), the [Superior] Court
distinguished the Meritor decision. In Federal National
Mortgage, notice of the Sheriff’s sale was posted at the
property being sold and was sent to the property by
certified and regular mail. The [Superior] Court stated:
Because appellant was originally served with notice,
he should have become aware of any subsequent
notice deficiency if he had exercised reasonable
diligence. Appellant failed to exercise reasonable
diligence when he failed to challenge the sheriff’s
sale directly and waited to raise the issue in the
ejectment action filed against him. The conclusion of
Meritor Mortgage Corp—that it would be
unreasonable to require a party to challenge notice
in an action for which it was never served notice,
and, consequently, of which it was unaware—is
inapplicable to a situation where a party was served
and should have been aware.
Id. at 649.
* * *
Until the March 10, 2014 Bench Trial, it was unclear
whether [Appellants] received any notice of the foreclosure
proceeding and the Sheriff’s sale. The record now
indicates that [Appellants] had notice of the existence of
the mortgage foreclosure as early as March of 2010.
Attorney Harry Fenton began representing [Appellants] in
February of 2010. Thomas Puleo…, counsel for [Deutsche
Bank] during the foreclosure proceedings, testified that
[the Bank] commenced its foreclosure proceedings on
March 18, 2010. Attorney George Christianson, counsel to
the executors of the estate, wrote a letter to Attorney
Fenton regarding the lease-purchase agreement, indicating
that any agreement would have to acknowledge the
mortgage foreclosure proceeding on the property. In
response, Attorney Fenton wrote a letter dated April 13,
2010[,] to Attorney Christianson. [The] letter reflected
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[Attorney Fenton’s] knowledge of the mortgage
foreclosure, as it included an attached proposed
agreement. …
* * *
On April 14, 2010, Attorney Christianson wrote a letter to
Attorney Fenton and forwarded a copy of the mortgage
foreclosure to which [Attorney Christianson] had filed an
answer. [Attorney Christianson] indicated in his
correspondence that he did not know if “under these
circumstances [Appellants] would be desirous to enter into
the agreement based on the impending mortgage
foreclosure.” On April 15, 2010, Attorney Fenton wrote
another letter to Attorney Christianson, indicating that
[Attorney Fenton] was aware of the mortgage foreclosure
action, and that he had referenced it in Paragraph 4 of his
April 13, 2010 correspondence. [Attorney Fenton]
explained that the two letters likely crossed paths in the
mail.
On April 30, 2010, [Appellants] filed a Complaint against
[Mr.] Peters and [Elsa’s] Estate requesting specific
performance of their agreement. Paragraph 12 [of the
complaint] alleges that “in further breach of the
Agreement, [Mr. Peters and Elsa’s estate] have permitted
the property to become [the] subject of a mortgage
foreclosure action, filed at No: 2010-00590, thereby
placing in jeopardy the right and opportunity of
[Appellants] to take title.” In response, Attorney
Christianson wrote a letter. In the letter, Attorney
Christianson indicate[d] that the impending Sheriff’s Sale
would not allow time for [Appellants] to complete their
financing. [Attorney Christianson] then [gave] notice to
[Appellants] that the [executors of Elsa’s estate] were
willing to sell the property to [Appellants] for the
contracted price if settlement could be held before the
execution sale. Thereafter, in May of 2010, [Deutsche
Bank] was served with a notice of the Lis Pendens filed by
Attorney Fenton.
On August 11, 2010, an Order for Judgment was issued in
favor of [Deutsche Bank] in the sum of $183,782.06.
[Appellants] were listed in the Affidavit of individuals to
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which notice of the foreclosure proceeding must be sent.
Shortly after judgment was entered, Attorney Fenton
wrote a letter to [Appellants] indicating that judgment had
been entered in the foreclosure action. This letter included
a copy of the judgment.
[Attorney Puleo] testified that on August 16, 2010,
[Deutsche Bank] sent [Appellants] Notice of the Sheriff’s
Sale. The notice indicated that the Sheriff’s Sale would
occur on October 12, 2010. Attorney Fenton wrote a letter
to [Appellants] on September 3, 2010, enclosing a notice
of the Sheriff’s sale. The parties were again served notice
by [Deutsche Bank] on September 8, 2010[,] because the
date listed in the prior notice was incorrect. The new
notice indicated to [Appellants] that the Sheriff’s sale
would take place on December 13, 2010. … Notice was
also sent directly to the [Jonestown Premises] to any
“tenants and occupants” of that address. [Appellants]
were living at the [Jonestown Premises] at this time, and
would have therefore received this correspondence.
In addition to these mailings, Sheriff David A. Heath
[(“Heath”)] posted notice of the Sheriff’s sale on the
[Jonestown Premises] on August 27, 2010, and again on
October 11, 2010, indicating the corrected date of
December 13, 2010. [Heath] testified that he usually
posts the notice on the front door or a large glass window
where the notice is visible.
[Attorney Puleo] provided [the] [c]ourt with evidence that
these notices were actually sent to [Appellants] and
Attorney Fenton. Exhibit 20 represents the Certificate of
Service and the stamped postal certification for all of the
mailings that were sent to announce the Sheriff’s sale.
Page 2 of Exhibit 20 certifies that the notice of the
December [13], 2010 Sheriff’s sale was indeed postmarked
on September 13, 2010[,] and sent to [Appellants].
[Appellants] were not given notice by personal service
because [Deutsche Bank] was only required to provide
them with notice by ordinary mail.
* * *
After a review of this timeline, it is clear…that [Deutsche
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Bank] followed all necessary protocol and gave
[Appellants] ample notice and time to intervene in the
foreclosure proceedings. [Deutsche Bank] received the
Notice of Lis Pendens a month after they commenced
foreclosure proceedings. [Deutsche Bank] thereafter
provided notice of the mortgage foreclosure to Attorney
Fenton and posted similar notice on the [Jonestown
Premises]. [Appellants] received a letter from Attorney
Fenton notifying them of the mortgage foreclosure.
Thereafter, [Deutsche Bank] served [Appellants] with
notice of the Sheriff’s sale and posted similar notice on the
[Jonestown Premises]. [Deutsche Bank] even mailed a
copy of the notice directly to the [Jonestown Premises],
where [Appellants] were living. Thereafter, the Sheriffs
duly announced the two continuances to the Sheriff’s sale.
Just as [Appellants] argued that [Deutsche Bank] was on
constructive notice of their interest in the property,
[Appellants] were clearly on actual notice of the
foreclosure proceeding and subsequent Sheriff’s sale, yet
they chose to do nothing about it. [Appellants] made no
attempt to pay the arrears and make the mortgage current
so as to prevent foreclosure. [Appellants] wrote a letter to
[Deutsche Bank] on April 12, 2011—the day of the
Sheriff’s sale—indicating their interest in purchasing the
[Jonestown Premises]. However, [Appellants] did not
appear at the Sheriff’s sale, and they failed to
communicate any further interest in purchasing the
property for almost a year until it was purchased by
[Appellees].
(Trial Court Opinion, filed July 8, 2014, at 7-16) (citations to record
omitted). Furthermore, the court disposed of Appellants’ claim regarding
Attorney Christianson’s alleged conflicts of interest as follows:
First, it presupposes that [the court] completely ignored
the multiple roles that [Attorney Christianson] played in
[this] case. That is simply not so. [The court] considered
all testimony, including the fact that [Attorney
Christianson] represented multiple parties related to the
dispute…. Second, and more important, the fact that
[Attorney Christianson] represented multiple parties did
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not, by itself, cause [the court] to rule in [Appellants’]
favor regarding the issue of notice. To the contrary, the
evidence that [Appellants] had notice was overwhelming
and was based upon witnesses and evidence that far
transcended what [Attorney Christianson] alone
represented. Third, [the court] view[ed] [Attorney
Christianson’s] purported conflict of interest as an issue
that could impact his credibility and not the admissibility of
his testimony. [Fourth] and finally, [the court] note[s]
that [Attorney Christianson] was listed as a witness in
[Appellees’] Pre-Trial Memorandum. At no time before or
during trial did [Appellants] object to [Attorney
Christianson’s] testimony based upon a conflict of interest.
Therefore, [the] [c]ourt was not given the opportunity to
rule that [Attorney Christianson’s] testimony should have
been excluded based upon conflict of interest. For all of
these reasons, [Appellants] waived their right to pursue
the objection they are now arguing via their appeal.
(Trial Court Opinion, December 31, 2014, at 10-11). The record supports
the court’s reasoning and conclusions. Therefore, Appellants are not entitled
to relief. Accordingly, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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