J-A17032-17
2017 PA Super 300
DEVON SERVICE, LLC ASSIGNEE OF IN THE SUPERIOR COURT OF
CUSTOMERS BANK F/K/A NEW CENTURY PENNSYLVANIA
BANK,
Appellee
v.
S & T REALTY AND SAUL BARSH,
Appellants No. 3595 EDA 2016
Appeal from the Order Entered October 26, 2016
in the Court of Common Pleas of Chester County
Civil Division at No.: 2013-11998
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED SEPTEMBER 20, 2017
Appellants, S & T Realty and Saul Barsh, appeal from the order fixing
the fair market value of four foreclosed commercial properties and entering
a decree in favor of plaintiff/Appellee, Devon Service, LLC, the judgment
creditor by assignment. Appellants claim chiefly that the trial court
improperly used lower sales prices instead of their own appraiser’s higher
valuations, and together with other purported procedural mistakes, set the
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*
Retired Senior Judge assigned to the Superior Court.
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fair market value too low, erroneously depriving them of a net credit of
$132,500 against the deficiency judgment they owe. We affirm.
We derive the facts from the trial court’s opinion and our independent
review of the certified record. Defendant/Appellant Saul Barsh is the sole
owner of the other named Appellant, S & T Realty (S & T).1 (See Trial Court
Opinion, 10/26/16, at 1). Barsh, through S & T, owned four commercial
properties subject to mortgages in favor of Customers Bank, Appellee’s
assignor/predecessor in interest.2 Appellants ultimately defaulted.
On December 18, 2014, the trial court granted summary judgment in
favor of Customers Bank, in the amount of $1,444,155.00. Customers Bank
eventually assigned its interest to Appellee.3 Appellee later bought the
properties at a Sheriff’s sale, on April 16, 2015.4 Appellee then timely
petitioned for a deficiency judgment.5 The trial court held a hearing on June
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1
S & T was formerly owned by Barsh with his ex-wife, as general partners.
Mrs. Barsh is not a party to this appeal.
2
Specifically, 111 West Lancaster Avenue, 115 West Lancaster Avenue, 119
West Lancaster Avenue, and 66-68 West Lancaster Avenue, all in the
Borough of Downingtown, Pennsylvania.
3
It appears that Appellee is a wholly owned subsidiary of Customers Bank.
(See N.T. Trial, 6/22/16, at 18).
4
The parcels were eventually sold to third parties.
5
Petitions to fix the fair market value and accompanying deficiency
judgments are governed by Pa.R.C.P. 3281–3285.
(Footnote Continued Next Page)
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22, 2016, and September 16, 2016. Appellee’s appraiser, Robert B. Rogers,
determined the fair market value of the properties to be $1,030,000.00.
Appellants’ appraiser, Vincent D. Quinn, determined the properties to have a
fair market value of $1,510,000.00. In addition to providing written reports,
both appraisers testified at the hearing.
After the hearings, the trial court issued its order, together with an
explanatory opinion. (See Order, and Decision, 10/26/16). The trial court
fixed the fair market value of the real estate at issue, net of credits,
municipal liens, etc., (which are not in dispute), to be $897,500.00.6 It also
entered a deficiency judgment of $687,704.66. (See Order, supra).
The trial court essentially accepted the valuation of Appellee’s
appraiser, Mr. Rogers (originally prepared for Customers Bank), over
Appellants’ valuation from Mr. Quinn. Appellants did not file a motion for
post-trial relief. See Pa.R.C.P. 227.1.
Appellants timely appealed, on November 23, 2016. The trial court
issued an order on November 29, 2016 for a Rule 1925(b) statement of
errors, due on December 20, 2016. Although the docket confirms that the
order was served on all counsel, neither Appellants nor appellate counsel
responded, and both deny receipt.
_______________________
(Footnote Continued)
6
The buildings at 111, 115, and 119 West Lancaster Avenue sold for an
aggregate $457,500.00. 66-68 West Lancaster sold for $440,000.00.
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On January 10, 2017, the trial court filed a Rule 1925(a) opinion,
noting that Appellants had failed to file a Rule 1925(b) statement of errors.
(See Rule 1925(a) Opinion, 1/10/17, at 1). It concluded that all appellate
issues were automatically waived. The trial court also expressed its belief
that the prior Order and Decision adequately explained the reasoning for its
judgment. (See id. at 2).
Notably, Appellants and appellate counsel maintain that the trial
court’s opinion was their first notice that the court had ordered a Rule
1925(b) statement of errors. (See Sur-Reply of Appellants S & T Realty and
Saul Barsh, at 1).
Appellants present three questions on appeal.
I. Where the [trial] [c]ourt considered the appraisals of fair
market value of the parties’ expert appraisers and accepted and
relied upon the [Appellee’s] appraiser’s opinion of $1,030,000,
did it err as a matter of law, in only crediting [Appellant(s)] with
the (lower) [sic] sales price and not fair market value?
II. Did the [trial] [c]ourt err as a matter of law in failing to
apply credit for the fair market value of the foreclosed properties
as of the date of the Sheriff’s Sale (April 16, 2015)?
III. Did the [trial] [c]ourt err as a matter of law by
miscalculating interest, both by using the incorrect credit for the
sale of the foreclosed properties and by failing to credit the fair
market value of the foreclosed properties as of the date of the
Sheriff’s Sale (April 16, 2015)?
(Appellant’s Brief, at 4) (footnote omitted).
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Appellants’ claims challenge the application of the Deficiency Judgment
Act. (See id. at 10, 15). In pertinent part, the Deficiency Judgment Act
provides:
Whenever any real property is sold, directly or indirectly,
to the judgment creditor in execution proceedings and the price
for which such property has been sold is not sufficient to satisfy
the amount of the judgment, interest and costs and the
judgment creditor seeks to collect the balance due on said
judgment, interest and costs, the judgment creditor shall
petition the court to fix the fair market value of the real property
sold.
42 Pa.C.S.A. § 8103(a).
The Deficiency Judgment Act applies whenever real
property of the debtor has been sold in execution to the
judgment creditor for a sum less than the amount of the
judgment, interest and costs. Under the Deficiency Judgment
Act, the creditor’s judgment against the debtor is reduced by the
fair market value of the property purchased by the creditor
rather than by the actual sale price of the property. The
objective of the Deficiency Judgment Act is to relieve a debtor
from further personal liability to the judgment creditor when the
real property taken by the judgment creditor on an execution
has a fair market value on the date of sale sufficient so that the
judgment creditor can dispose of the property to others without
a further loss.
Horbal v. Moxham Nat. Bank, 697 A.2d 577, 581–82 (Pa. 1997), Opinion
in Support of Affirmance (citations omitted).
When reviewing an order fixing fair market value, an appellate court is
limited to determining whether there is sufficient evidence to sustain the
holding of the trial court, or whether the court committed reversible error of
law. See Union Nat’l Bank of Pittsburgh v. Crump, 37 A.2d 733, 734
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(Pa. 1944); see also Bryn Mawr Trust Co. v. Healy, 667 A.2d 719, 721
(Pa. Super. 1995), appeal denied, 681 A.2d 1340 (Pa. 1996).
The record must be viewed in the light most favorable to the verdict
winner. See Confederation Life Ins. Co. v. Morrisville Properties, L.P.
& Site Dev., Inc., 715 A.2d 1147, 1154 (Pa. Super. 1998). Furthermore, it
is the role of the trial court to weigh the credibility of testimony and
evidence concerning valuation, including the weight to be given to expert
testimony. See id.; Healy, supra at 723 (citation omitted).
Fair market value has been determined to be “the price a purchaser,
who is willing but not obligated to buy, would pay an owner, who is willing
but not obligated to sell.” Healy, supra at 723 (citation omitted).
Factors that a court may consider when determining fair market value
include recent sales of realty of comparable location and description, uses to
which the realty is adapted and might reasonably be applied, demand for the
realty, income produced by it, and all elements which might affect its actual
value. See Crump, supra at 735; Confederation Life, supra at 1154. An
offer to purchase property, while having some evidentiary value, is not
conclusive of the fair market value. See Crump, supra at 735.
Many elements properly enter into the determination of
fair market value. Among these are recent sales of real estate of
comparable location and description[.] . . . Other factors of
value include (1) the uses to which the property is adapted and
might reasonably be applied[ ]; (2) the demand for the property
and similar properties, taking into consideration economic
conditions which depress market value in its true sense and
detrimentally influence such demand[;] (3) the income produced
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by the property, including rents, and (4) generally, all elements
which affect the actual value of property and therefore influence
its fair market value[.]
Id. (citations and internal quotation marks omitted).
“The judgment creditor must carry the burden to demonstrate its
compliance with the Deficiency Judgment Act. The Act is to be liberally
interpreted in aid of judgment debtors.” First Fed. Sav. & Loan Ass'n of
Carnegie v. Keisling, 746 A.2d 1150, 1153–54 (Pa. Super. 2000), appeal
denied, 759 A.2d 923 (Pa. 2000) (citations and internal quotation marks
omitted).
Finally, insofar as the resolution of this appeal requires the
interpretation and application of 42 Pa.C.S.A. § 8103, that statutory
interpretation is a question of law, for which our standard of review is de
novo, and our scope of review is plenary. See Nw. Sav. Bank v. Knapp,
149 A.3d 95, 98 (Pa. Super. 2016).
Here, all of Appellants claims are waived for failure to present them
first to the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal”). As
previously noted, (see supra at *2 n.5), petitions to fix the fair market
value and accompanying deficiency judgments are governed by Pa.R.C.P.
3281–3285. Specifically, Pa.R.C.P. 3285 provides that a trial to fix fair value
shall be conducted pursuant to Pa.R.C.P. 1038, Trial Without Jury. The
general rules applying to petitions do not apply to petitions to fix fair market
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value. See Pa.R.C.P. 3285, Note. Rule 1038 provides that for post-trial
relief, a party must file a motion pursuant to Pa.R.C.P. 227.1. See Pa.R.C.P.
1038, Note. Post-trial motions must be filed within ten days after verdict.
See Pa.R.C.P. 227.1(c)(1). Accordingly, to preserve issues for appeal, a
timely post-trial motion must be filed. See Pa.R.C.P. 1038; see also
Pa.R.C.P. 227.1. Appellants did not do so. “Grounds not specified by a
party in post-trial motions pursuant to Rule 227.1 shall be deemed waived
on appellate review.”7 Chalkey v. Roush, 569 Pa. 462, 467, 805 A.2d 491,
494 (2002) (citations and footnote omitted).
Accordingly, all of appellants’ issues are waived.
Appellants also fail to specify where and how the questions for review
were properly raised and preserved with the trial court. See Pa.R.A.P.
2117(c) (“Statement of place of raising or preservation of issues.”);
see also Pa.R.A.P. 2119(e) (“Statement of place of raising or
preservation of issues”). The claims are waived for these reasons as
well.8
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7
“The purpose for Rule 227.1 is to provide the trial court with an
opportunity to correct errors in its ruling and avert the need for appellate
review.” Chalkey, supra at 494 n.9.
8
Because all of Appellants’ issues are already waived, we need not address
whether they would also be waived for failure to provide a timely Rule
1925(b) statement of errors, as suggested by the trial court, and we decline
to do so.
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Moreover, they would not merit relief.
We address Appellants’ claims together, because they are interrelated.
All assert trial court error in the failure to credit fair market value. (See
Appellants’ Brief, at 4).
Under our standard of review, considering the record as a whole,
viewed in the light most favorable to Appellee as the verdict winner, we
conclude that trial court properly determined the deficiency judgment. Its
order correctly reflects the applicable law. And it is supported by sufficient
competent evidence.
All of Appellants’ claims rely on the frequently repeated assertion that
the trial court “only credit[ed]” the sales price, instead of the fair market
value. (Id. at 4; see also, e.g., id. at 6, 9-11). This assumption is never
referenced to the record, but presumably relies on the trial court’s isolated
allusion to the sales prices at ¶ 11 of its “Conclusions of Law.” (See Trial
Court Decision, 10/26/16, at 17).
Appellants’ single-minded insistence that the trial court relied
exclusively and improperly on the sales price data ignores the reality that
comparable sales are one valid factor in the assessment of fair market
value. See Crump, supra at 735. In fact, the hallmark of fair market
value is “the price a purchaser, who is willing but not obligated to buy, would
pay an owner, who is willing but not obligated to sell.” Healy, supra at 723
(citation omitted).
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Furthermore, it ignores the trial court’s meticulous and comprehensive
assessment of other factors addressed by the appraisers, including the
general poor condition of the properties, bad rental history, uncooperative
(non-paying) tenants, deferred maintenance, needed repairs, zoning and
parking problems, the inability to sell the properties at higher listed prices,
offers only well below the asking price, under-leasing, severe frozen sewer
problems, a compromised roof (“leaking like a sieve”), and so forth. (Trial
Ct. Decision, at 6; see also id. at 1-17).
Moreover, aside from the repetitive insistence that the trial court
erroneously credited sales prices, Appellants fail to develop a meaningful
argument that there was any irregularity in the process of purchase and
resale.
To the contrary, the trial court found there was no evidence that the
court-appointed receiver, Daniel McIntosh, a real estate agent accepted as
an expert at the hearing, received any instructions to “dump the properties”
(Trial Court Decision, at 4), “discount” them (id. at 6), or sell them for less
than they were worth (see id.).
Similarly, the trial court accepted the testimony of Mr. Rogers that
nobody told him to “lowball the appraisal,” (id. at 9), and he did not do so.
(See id.).
We view this record in the light most favorable to Appellee as the
verdict winner. See Confederation Life, supra at 1154. We defer to the
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trial court on findings of fact supported by the record, and on its assessment
of expert testimony. See id.; see also Healy, supra at 723.
Accordingly, we conclude that under our standard of review there is
sufficient evidence to sustain the holding of the trial court. The court
committed no reversible error of law. Even if Appellants had not waived
their issues, they would not be entitled to any relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2017
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Devon Service, LLC v. S & T Realty
Combined Opinion