J-S89034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A. S/I/I/T IN THE SUPERIOR COURT OF
WACHOVIA BANK, N.A. PENNSYLVANIA
v.
DANIEL R. ENGLER AND JOY A. ENGLER
Appellant No. 200 EDA 2016
Appeal from the Order December 10, 2015
in the Court of Common Pleas of Monroe County Civil Division
at No(s): No. 7586-CV2011
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED April 25, 2017
Appellants, Daniel R. Engler and Joy A. Engler, appeal from the order
of the Monroe County Court of Common Pleas, Civil Division denying their
petition to set aside a sheriff’s sale. Appellee, Wells Fargo Bank, N.A.,
requests that we quash this appeal due to Appellants’ failure to file a timely
Pa.R.A.P. 1925(b) statement of matters complained of on appeal (“Rule
1925 statement”) or a timely motion for extension of time within which to
file a Rule 1925 statement. Pursuant to Pa.R.A.P. 1925(c)(2), we remand
this case to the trial court for proceedings consistent with this memorandum.
Appellants are the owners of real property located at 137 Silver
Springs Road, Kunkletown, Pennsylvania. Appellants mortgaged their
property in 1988, and the mortgage was subsequently assigned to Appellee.
*
Former Justice specially assigned to the Superior Court.
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After living in their residence for over thirty-eight years, Appellants fell
behind on their mortgage payments. On August 29, 2011, Appellee filed a
mortgage foreclosure action. Following completion of the pleadings,
Appellee moved for summary judgment. On November 4, 2013, the trial
court granted summary judgment in favor of Appellee.
In June 2014, the Monroe County Sheriff’s Office served Appellants
with a notice of the sheriff’s sale. On February 26, 2015, the sheriff’s sale
took place. On March 30, 2015, Appellants filed a petition to set aside the
sheriff’s sale. Appellants averred that Appellee’s representative assured
them that the sheriff’s sale had been continued from February 26, 2015 for
one month. Based on these assurances, Appellants did not take further
action to save their house, such as filing for bankruptcy or moving to
continue the sheriff’s sale.
On August 19, 2015, the trial court held a hearing with regard to
Appellants’ petition. In an order docketed on December 11, 2015, the court
denied Appellants’ petition. Appellants timely appealed to this Court.
On January 11, 2016, the trial court ordered Appellants to file their
Rule 1925 statement within twenty-one days. The docket states that the
prothonotary sent this order to Appellants on January 12, 2016. Thus, the
deadline for Appellants’ Rule 1925 statement was February 2, 2016.
Appellants did not request an extension of time to file their Rule 1925
statement until February 5, 2016, three days after the deadline.
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On February 11, 2016, the trial court filed an opinion stating that
Appellants waived all issues on appeal by failing to file a timely Rule 1925
statement. On February 12, 2016, Appellants filed a petition for
enlargement of time within which to file their Rule 1925 statement. On
February 16, 2016, the trial court vacated its February 11, 2016 opinion. On
February 18, 2016, sixteen days after the deadline, Appellants filed their
Rule 1925 statement.
On March 18, 2016, the trial court filed a new opinion agreeing with
Appellants’ claims of error and recommending that this Court reverse its
order denying Appellants’ petition to set aside the sheriff’s sale.
In this Court, Appellee moved to dismiss the appeal on the ground that
Appellants waived all issues by filing an untimely Rule 1925 statement. In
response, pursuant to Pa.R.A.P. 1925(c)(2), Appellants filed an application
for remand to the trial court for the trial court to accept their Rule 1925
statement nunc pro tunc. On May 12, 2016, a motions panel of this Court
granted Appellee’s motion to dismiss and denied Appellants’ application for
remand.
Appellants filed a timely application for reconsideration. On June 29,
2016, a motions panel of this Court granted Appellants’ application for
reconsideration and vacated the May 12, 2016 order. The motions panel
also denied Appellee’s application for dismissal without prejudice and denied
Appellants’ motion for remand as moot.
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On September 26, 2016, Appellants filed a second motion for remand,
again requesting a remand of the case for the trial court to accept their Rule
1925 statement nunc pro tunc. On October 31, 2016, a motions panel of
this Court denied Appellants’ motion without explanation.
Appellants raise one issue in this appeal:
Did the trial court abuse its discretion by failing to set
aside the sheriff’s sale[,] where the Appellants, though
having received notice, were, based upon representations
made to Mr. Engler at the sheriff’s sale when he was
without counsel, confused and led to believe that the
sheriff’s sale would be continued and/or postponed[,]
thereby causing Mr. Engler to refrain from making a formal
request for a continuance and/or postponement himself?
Appellant’s Brief at 3.1
Before we can address the merits of this issue, we must determine
whether Appellants have shown good cause under Rule 1925(c)(2) for filing
their Rule 1925 statement nunc pro tunc. If Appellants can demonstrate
good cause, then they have preserved their issue for appeal; if they cannot,
then they have waived this issue. For the reasons that follow, we conclude
that the first step in determining whether Appellants have shown good cause
is to remand this case to the trial court for an evidentiary hearing and
findings of fact concerning the steps Appellants took in filing their Rule 1925
statement. Upon receipt of the trial court’s findings of fact, this Court will
1
This single issue is effectively the same as the four issues raised in
Appellants’ Rule 1925 statement.
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apply the good cause test within Rule 1925(c)(2) to determine the
appropriate remedy.
Pa.R.A.P. 1925(b) provides in relevant part:
(b) Direction to file statement of errors complained
of on appeal; instructions to the appellant and the
trial court.—If the judge entering the order giving rise to
the notice of appeal (“judge”) desires clarification of the
errors complained of on appeal, the judge may enter an
order directing the appellant to file of record in the trial
court and serve on the judge a concise statement of the
errors complained of on appeal (“Statement”).
***
(2) Time for filing and service.—The judge shall allow the
appellant at least 21 days from the date of the order’s
entry on the docket for the filing and service of the
Statement. Upon application of the appellant and for good
cause shown, the judge may enlarge the time period
initially specified or permit an amended or supplemental
Statement to be filed. Good cause includes, but is not
limited to, delay in the production of a transcript necessary
to develop the Statement so long as the delay is not
attributable to a lack of diligence in ordering or paying for
such transcript by the party or counsel on appeal. In
extraordinary circumstances, the judge may allow for the
filing of a Statement or amended or supplemental
Statement nunc pro tunc.
Id. Pa.R.A.P. 1925(c) provides in relevant part:
(c) Remand.
(1) An appellate court may remand in either a civil or
criminal case for a determination as to whether a
Statement had been filed and/or served or timely filed
and/or served.
(2) Upon application of the appellant and for good
cause shown, an appellate court may remand in a
civil case for the filing nunc pro tunc of a Statement
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or for amendment or supplementation of a timely filed and
served Statement and for a concurrent supplemental
opinion.
Id. (emphasis added).
In civil cases, the failure to file a timely Rule 1925 statement usually
spells doom for the appeal. See Greater Erie Indus. Dev. Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 226-27 (Pa. Super. Ct. 2014) (en
banc) (all issues in civil appeal waived where appellant filed Rule 1925
statement three days after deadline and failed to request extension prior to
deadline). Nevertheless, Rule 1925(c)(2) authorizes this Court to permit a
Rule 1925 statement nunc pro tunc “upon application of the appellant and
for good cause shown.”
Although Rule 1925(c)(2) does not define “good cause,” Rule
1925(b)(2) defines this term to “include[] . . . delay in the production of a
transcript necessary to develop the [Rule 1925] Statement so long as the
delay is not attributable to a lack of diligence in ordering or paying for such
transcript by the party or counsel on appeal.” Pa.R.A.P. 1925(b)(2). We
think it clear that our Supreme Court intended for “good cause” to have the
same meaning in subsection (c)(2) as in subsection (b)(2). Cf. Bd. of
Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d 610, 622 (Pa.
2010) (“[S]ections of a statute must be read together and in conjunction
with each other, and construed with reference to the entire statute. A word
or phrase whose meaning is clear when used in one section of a statute will
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be construed to mean the same thing in another section of the same
statute”) (citations and quotation marks omitted); Commonwealth v.
Smith, 883 A.2d 612, 615 (Pa. 2005) (“[a]n interpretation of the language
in a section of a statute must remain consistent throughout the statute”)
(citation omitted).
Similarly, Rule 1925(c)(2) does not define “nunc pro tunc,” but the
Note to Rule 1925(b)(2) explains this term in detail:
In general, nunc pro tunc relief is allowed only when there
has been a breakdown in the process constituting
extraordinary circumstances. See, e.g., In re Canvass
of Absentee Ballots of Nov. 4, 2003 Gen. Election, []
843 A.2d 1223, 1234 ([Pa.] 2004) (“We have held that
fraud or the wrongful or negligent act of a court official
may be a proper reason for holding that a statutory appeal
period does not run and that the wrong may be corrected
by means of a petition filed nunc pro tunc.”) Courts have
also allowed nunc pro tunc relief when “non-negligent
circumstances, either as they relate to appellant or his
counsel” occasion delay. McKeown v. Bailey, 731 A.2d
628, 630 (Pa. Super. 1999). However, even when there is
a breakdown in the process, the appellant must attempt to
remedy it within a “very short duration” of time. Id.;
Amicone v. Rok, 839 A.2d 1109, 1113 (Pa. Super. 2003)
(recognizing a breakdown in process, but finding the delay
too long to justify nunc pro tunc relief).
Note, Pa.R.A.P. 1925(b)(2). Once again, we think it clear that our Supreme
Court intended “nunc pro tunc” to mean the same thing in subsection (c)(2)
as it does in the Note to subsection (b)(2). Cf. Bd. of Revision of Taxes, 4
A.3d at 622; Smith, 883 A.2d at 615.
Here, Appellants provide the following reasons for failing to file their
Rule 1925 statement before the court-ordered deadline of February 2, 2016:
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[B]etween January 11, 2016 and January 21, 2016,
undersigned counsel’s staff made telephone calls to the
Prothonotary of Monroe County and were informed that all
requests for transcripts were to be made through that
office, hence, several additional calls were made inquiring
about and then following up on the cost of the transcript,
with the understanding that the transcript had been
ordered. On January 21, 2016, not having received a
response as a result of the oral communications with the
Prothonotary’s Office, undersigned counsel forwarded
correspondence containing a Statement Regarding
Transcript Under Rule of Appellate Procedure 904(c) to the
Prothonotary.
On January 23, 2016, undersigned counsel again called
the Prothonotary to inquire whether the request for
transcripts had been received. Again, not hearing further
from the Prothonotary or Court Reporter on the cost of
transcript, a copy of the aforesaid documentation was
forwarded, on January 25, 2016, to the Honorable Stephen
M. Higgins (trial court).
On or about January 25, 2016, undersigned counsel
received a call from the Prothonotary and was informed,
for the first time, that to obtain the transcript, and have it
filed of record, he was required, under local rule and
dissimilar from Pa.R.A.P. 1911, to file a formal petition to
obtain transcripts. Undersigned counsel immediately
prepared forwarding correspondence, along with a Petition
Requesting Transcripts to the Prothonotary on January 26,
2016.
On January 28, 2016, undersigned counsel then called
the Prothonotary to determine if all requests had made it
to the trial court. On February 5, 2016, undersigned
counsel received the Order, dated February 1, 2016,
granting the request for transcripts and was informed of
the transcript costs. On February 8, 2016, counsel sent a
check for the full amount of the cost of transcripts to the
Prothonotary and/or Court Reporter.
On February 11, 2016, the trial court issued a
Statement Pursuant to Pa.R.A.P. 1925(a), adopting the
reasoning set forth in its order of December 10, 2015, with
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recognition that [Appellants] had failed to file a Statement.
Subsequent to the issuance of the first Rule 1925(a)
Statement, on February 11, 2016, the transcript from the
hearing was filed of record. On that same day, but before
receiving the trial court’s Rule 1925(a) Statement or the
transcript, [Appellants] forwarded a Petition to Enlarge
Time to File and Serve Statement of Errors and a proposed
order to the trial court. Therein, counsel for Englers
alleged that he had not yet received the transcript from
the relevant hearing, which was necessary for counsel to
prepare the Statement of Errors. The Certificate of Service
of this document reflects that it was served on Appellee’s
counsel of record and, despite that service, Appellee did
not object to the request for an extension of time to file
the Statement. Later, undersigned counsel received the
transcript, via email, from which he could prepare and file
a Statement. [Appellants’] Petition to Enlarge time was
filed on February 12, 2016.
On February 17, 2016, the trial court issued and filed
an Order vacating its Statement Pursuant to Pa.R.A.P.
1925(a) of February 11, 2016 and granted [Appellants] ten
(10) days within which to file their Statement. Within one
(1) day of the notice of the extension being sent by the
Prothonotary, [Appellants] filed their Statement of Errors
Complained of on Appeal on February 18, 2016.
Appellants’ Reply Brief at 3-5 (citations omitted).
Rule 1925(c)(2) requires this Court—not the trial court—to determine
whether good cause exists to permit the filing of Appellants’ Rule 1925
statement nunc pro tunc. As an appellate court, however, we cannot assess
the credibility of the foregoing factual assertions in Appellants’ reply brief.
Only the trial court can perform this task through an evidentiary hearing.
Accordingly, within the next sixty days, we direct the trial court to
conduct an evidentiary hearing and enter findings of fact detailing the steps
Appellants took between January 12, 2016, the date the prothonotary sent
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Appellants notice of the order to file a Rule 1925 statement, and February
18, 2016, the date Appellants filed their Rule 1925 statement. Upon receipt
of the trial court’s findings of fact, we will determine whether good cause
exists under Rule 1925(c)(2) to permit the filing of Appellants’ Rule 1925
statement nunc pro tunc. We then will take all other necessary steps to
resolve this appeal.2
Case remanded for proceedings consistent with this memorandum.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
2
We acknowledge that this decision differs from the orders of our two
motions panels denying Appellants’ motions for remand. Nevertheless, in
our capacity as the merits panel, we are not bound by decisions of the
motions panel in earlier stages of this appeal. It is well-settled that a trial
judge may revisit issues decided by another judge during an earlier stage of
the case. See Goldey v. Trs. of Univ. of Pa., 675 A.2d 264, 267 (Pa.
1996) (notwithstanding law of the case doctrine, “where the motions differ
in kind, as preliminary objections differ from motions for judgment on the
pleadings, which differ from motions for summary judgment, a judge ruling
on a later motion is not precluded from granting relief although another
judge has denied an earlier motion”). The same logic enables a merits panel
of this Court to reconsider issues decided by a motions panel to effectuate
the proper disposition of the appeal.
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