J-A20013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BAYVIEW LOAN SERVICING, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
ZACHARY DOWELL :
:
Appellant : No. 1855 MDA 2016
Appeal from the Judgment October 14, 2016
In the Court of Common Pleas of Perry County
Civil Division at No(s): 2014-873
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 07, 2017
Appellant, Zachary Dowell, appeals pro se from the judgment entered
in the Perry County Court of Common Pleas against Appellant and in favor of
Appellee, Bayview Loan Servicing, LLC, in this mortgage foreclosure action.
We vacate and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
In September 2012, Appellant executed and delivered a mortgage in favor of
Mortgage Electronic Registration Systems, Inc. (“MERS”). MERS assigned
the mortgage, in July 2014, to Wells Fargo Bank, N.A., which filed a
mortgage foreclosure complaint against Appellant on October 20, 2014. In
April 2016, the mortgage was assigned to Appellee. Appellee filed a
praecipe for voluntary substitution of party plaintiff, on July 29, 2016, and a
motion for summary judgment, on September 16, 2016. Appellant filed a
response to Appellee’s summary judgment motion on October 13, 2016. On
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October 14, 2016, the court granted Appellee’s motion for summary
judgment. On Monday, November 14, 2016, Appellee filed both a timely
notice of appeal and a motion for reconsideration of the court’s October 14 th
order. The court did not order and Appellant did not file a concise statement
of errors complained of on appeal per Pa.R.A.P. 1925(b).
Initially, we observe:
Our scope of review of an order granting summary
judgment is plenary. We apply the same standard as the
trial court, reviewing all the evidence of record to
determine whether there exists a genuine issue of material
fact. We view the record in the light most favorable to the
non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Only where there is no genuine issue as to
any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered.
… The appellate Court may disturb the trial court’s order
only upon an error of law or an abuse of discretion.
Lineberger v. Wyeth, 894 A.2d 141, 145-46 (Pa.Super. 2006) (internal
citations and quotation marks omitted). “The question of whether there
exist any genuine issues of material fact is subject to a de novo standard of
review.” DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 587
(Pa.Super. 2013) (citing Drelles v. Manufacturers Life Ins. Co., 881 A.2d
822, 830-31 (Pa.Super. 2005)).
With regard to expert opinions in the context of summary
judgment, our Supreme Court said:
It has long been Pennsylvania law that, while
conclusions recorded by experts may be disputed,
the credibility and weight attributed to those
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conclusions are not proper considerations at
summary judgment; rather, such determinations
reside in the sole province of the trier of fact…. …
At the summary judgment stage, a trial court is
required to take all facts of record, and all
reasonable inferences therefrom, in a light most
favorable to the non-moving party. This clearly
includes all expert testimony and reports submitted
by the non-moving party or provided during
discovery; and, so long as the conclusions contained
within those reports are sufficiently supported, the
trial judge cannot sua sponte assail them in an order
and opinion granting summary judgment.
Contrarily, the trial judge must defer to those
conclusions, …and should those conclusions be
disputed, resolution of that dispute must be left to
the trier of fact.
DeArmitt, supra at 595-96 (quoting Glaab v. Honeywell Intern., Inc.,
56 A.3d 693, 697–98 (Pa.Super. 2012) (quoting Summers v. Certainteed
Corp., 606 Pa. 294, 309–10, 997 A.2d 1152, 1161 (2010) (internal citations
and quotation marks omitted)). In other words, “The credibility and weight
to be attributed to the [expert’s] conclusions [are] not proper considerations
at summary judgment.” DeArmitt, supra at 598.
Pennsylvania Rule of Appellate Procedure 903 sets forth the time in
which an appellant must file a notice of appeal and provides in relevant part:
Rule 903. Time for Appeal
(a) General rule. Except as otherwise prescribed by this
rule, the notice of appeal required by Rule 902 (manner of
taking appeal) shall be filed within 30 days after the entry
of the order from which the appeal is taken.
Pa.R.A.P. 903(a). Rule 1701 enumerates the actions a trial court has
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authority to perform, once a party initiates an appeal, and states in relevant
part as follows:
Rule 1701. Effect of Appeal Generally
(a) General rule. Except as otherwise prescribed by
these rules, after an appeal is taken…, the trial court…may
no longer proceed further in the matter.
(b) Authority of a trial court or agency after appeal.
After an appeal is taken…, the trial court…may:
(1) Take such action as may be necessary to preserve
the status quo, correct formal errors in papers relating to
the matter, cause the record to be transcribed, approved,
filed and transmitted, grant leave to appeal in forma
pauperis, grant supersedeas, and take other action
permitted or required by these rules or otherwise ancillary
to the appeal or petition for review proceeding.
* * *
(3) Grant reconsideration of the order which is the
subject of the appeal or petition, if:
(i) an application for reconsideration of the order is
filed in the trial court…within the time provided or
prescribed by law; and
(ii) an order expressly granting reconsideration of
such prior order is filed in the trial court…within the
time prescribed by these rules for the filing of a
notice of appeal…with respect to such order, or
within any shorter time provided or prescribed by
law for the granting of reconsideration.
Pa.R.A.P. 1701(a), (b)(1), (b)(3). In other words, if a party files a notice of
appeal, the trial court generally lacks jurisdiction to act further on the merits
of the case. Pa.R.A.P. 1701(a). The trial court, however,
has inherent power to amend its records, to correct
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mistakes of the clerk or other officer of the court,
inadvertencies of counsel, or supply defects or omissions in
the record at any time. However, [a] major substantive
change, such as the total withdrawal of an order relative to
a motion of record does not constitute a corrective order
within the inherent powers of the trial court or the court’s
statutory authority. Absent a specific rule or statute, the
only exception is to correct obvious technical mistakes
(e.g., wrong dates) but no substantive changes can be
made.
Manufacturers & Traders Trust Co. v. Greenville Gastroenterology,
SC, 108 A.3d 913, 921 (Pa.Super. 2015) (internal citations and quotation
marks omitted).
Nevertheless, “even if an appeal is timely filed, a court may grant a
party’s motion to reconsider a final order, but only if (1) a motion to
reconsider is filed within the appeal period; and (2) the court expressly
grants reconsideration within the appeal period. Pa.R.A.P. 1701(b)(3). If a
court fails to act on a timely reconsideration motion within the appeal period,
it loses jurisdiction to do so.” Manufacturers & Traders Trust Co., supra
at 918 (emphasis added).
Additionally, Section 5505 of the Judiciary Code governs modification
of orders, and provides:
§ 5505. Modification of orders
Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such
order has been taken or allowed.
42 Pa.C.S.A. § 5505.
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Under [S]ection 5505, the trial court has broad discretion
to modify or rescind an order, and this power may be
exercised sua sponte or invoked pursuant to a party’s
motion for reconsideration. [T]he trial court may consider
a motion for reconsideration only if the motion for
reconsideration is filed within thirty days of the entry of
the disputed order. The mere filing of a motion for
reconsideration, however, is insufficient to toll the appeal
period. If the trial court fails to grant reconsideration
expressly within the prescribed 30 days, it loses the power
to act upon both the [motion] and the original order.
PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa.Super. 2007)
(internal citations and quotation marks omitted).
Instantly, the court granted summary judgment in favor of Appellee on
October 14, 2016. Appellant filed both a notice of appeal and a motion for
reconsideration on Monday, November 14, 2016, the last day on which
Appellant could file a timely notice of appeal or the trial court could modify
the October 14th order. See Pa.R.A.P. 903, supra; 42 Pa.C.S.A. § 5505,
supra. The trial court indicates it realized, after Appellant had filed his
reconsideration motion, that the court had inadvertently overlooked
Appellant’s response to Appellee’s summary judgment motion. (See
Memorandum, filed 11/30/16, at 1 unpaginated; Memorandum, filed
12/14/16, at 1.) Appellant attached to his response the report of a forensic
handwriting expert, who opined Appellant’s signature on the note was a
forgery. The trial court, however, lost jurisdiction to rule on Appellant’s
reconsideration motion and modify its October 14th order because: (1)
Appellant filed a timely notice of appeal; and (2) the court did not expressly
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grant reconsideration on or before November 14, 2016. See
Manufacturers & Traders Trust Co., supra; PNC Bank, N.A., supra.
As a result, the trial court stated:
[Appellant] submitted a response to [Appellee’s] Motion for
Summary Judgment, which set forth a specific fact
creating a genuine issue of material fact. [Appellant]
presents evidence of a handwriting expert that the
signatures on the note were forged, including [Appellant’s]
own signature. It is not for this [c]ourt to determine the
validity of this expert or his testimony, but rather to
determine if the facts create a genuine issue. Here, there
is a genuine issue as to the signature. If the signature is a
forgery, the note and the default of said note would have
no effect on [Appellant].
Based on the pleadings presented to this [c]ourt, it is
determined that [Appellant] has met his burden of proving
that there is a genuine issue of material fact and that
summary judgment should not have been granted.
(See Trial Court Opinion, filed 12/16/16, at 3-4, unpaginated.) See also
DeArmitt, supra; Lineberger, supra. In light of the post-judgment
posture of this case, the trial court has asked us to vacate and remand the
matter for further action. In accord with the court’s request, we vacate and
remand for further proceedings.1
Judgment vacated; case remanded for further proceedings.
Jurisdiction is relinquished.
____________________________________________
1
Due to the disposition of this appeal, we deny as moot Appellant’s open
motion to move his case from #13 to #1 on the list for oral argument.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
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Bayview Loan Servicing, LLC. v. Dowell, Z.
Combined Opinion