ESB-B/Q Holdings v. Lopez, A.

• Court: Superior Court of Pennsylvania
• Decided: October 7, 2014
• Docket: 273 EDA 2014
• Status: Unpublished

Opinion

J-A24005-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESB-B/Q HOLDINGS, LLC IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ALFONSO LOPEZ

Appellant No. 273 EDA 2014

Appeal from the Order Entered November 30, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 1736 August Term, 2011

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 07, 2014

Appellant, Alfonso Lopez, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his motion to set aside 1 We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

____________________________________________

circumstances. See eed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper

_____________________________

*Retired Senior Judge assigned to the Superior Court. J-A24005-14

Appellant raises five issues for our review:

MOTION TO SET ASIDE SHERIFF SALE EVEN THOUGH [APPELLANT] WAS GIVEN NO NOTICE OF THE AUGUST 6, 2013 SALE AND APPELLEE GAVE NO NOTICE OF THE SALE TO [APPELLANT]?

APPELLEE PRESENTED NO EVIDENCE THAT ANY NOTIFICATION OF THE AUGUST 6, 2013 SHERIFF SALE AND THE SEVERAL PREVIOUS POSTPONED SALES WERE REASONABLY CALCULATED TO NOTIFY [APPELLANT] OF THE SCHEDULED SHERIFF SALES?

IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012 ORDERS DISPENSING WITH THE NEW NOTICE REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE SHERIFF SALES, PURSUANT TO PA.R.C.P. 3129.3(a), DID THE TRIAL COURT ERR BY FAILING TO CONDUCT AN EVIDENTIARY HEARING TO CONSIDER WHAT NOTICE, IF ANY, APPELLEE GAVE OF THE AUGUST 6, 2013 SHERIFF SALE AND THE SEVERAL PREVIOUS POSTPONED SALES THAT PRECEDED IT?

IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012 ORDERS DISPENSING WITH THE NEW NOTICE REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE SHERIFF SALES, PURSUANT TO PA.R.C.P. 3129.3(a), DID THE TRIAL COURT ERR BY FAILING TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE

CONSTITUTIONAL DUE PROCESS RIGHTS PURSUANT TO THE 5TH AND 14TH AMENDMENTS?

IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012 ORDERS DISPENSING WITH THE NEW NOTICE REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE SHERIFF SALES PURSUANT TO PA.R.C.P. 3129.3(a), DID THE COURT ERR BY FAILING TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER 2013 SALE, IF ANY, AND THE SEVERAL PREVIOUS POSTPONED SALES

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WERE REASONABLY CALCULATED TO NOTIFY APPELLANT OF THE SCHEDULED SHERIFF SALES?

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to realize out of the land, the debt, interest, and costs which are due, or

GMAC Mortg. Corp. of PA v.

Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007) (quoting Kaib v. Smith,

684 A.2d 630, 632 (Pa.Super. 1996)).

equitable principles and is addressed to the sound discretion of the hearing court. The burden of proving circumstances warranti When

discretionary one, and it will not be reversed on appeal unless there is a clear abuse of that discretion.

Buchanan, supra at 1167 (internal citations omitted).

On appeal, Appellant emphasizes that the parties postponed the

-month

period. Appellant acknowledges Pa.R.C.P. 3129.3(a), providing that new

notice of a

argument section of his brief. Specifically, the argument section is divided into two parts, which overlap with the issues included in the statement of questions presented. Consequently, we address the issues set forth in the argument section of the brief.

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additional notice. Nevertheless, Appellant contends a property owner is still

entitled to due process before his

sale. Appellant asserts he did not receive due process here, because

Appellee and the court did not provide notice of the final sale date.

Excluding two trial court orders entered in July and November 2012,

Appell

sale dates leading up to the August 6, 2013 sale date were not reasonably

the trial court abused its discretion in denying his motion to set aside

Rule 3129.3 governs the issuance of notice following the

postponement of a sale:

Rule 3129.3. Postponement of Sale. New Notice. Failure of Plaintiff to Attend Sale

(a) Except as provided by subdivision (b) or special order of court, new notice shall be given as provided by Rule 3129.2 if a sale of real property is stayed, continued, postponed or adjourned.

Pa.R.C.P. 3129.3(a) (emphasis added).

-recognized notions of due process, Pennsylvania

has enacted a series of procedural rules relating to the extent of proper

In re Porovne,

436 B.R. 791, 801 (Bkrtcy.W.D.Pa. January 26, 2010).

Generally, Pa.R.C.P. 3129.3 provides that if a pending sale of real property is stayed, continued, postponed or

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adjourned for any reason, then typically new notice is required, but there are two exceptions.

* * *

The second exception to the requirement of new notice is where a special order of court is issued dispensing with the requirement of additional notice. This exception gives the court discretion to allow postponement of the sale without new notice in appropriate cases.

Id. (internal citations and quotation marks omitted).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Ellen H.

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed March 5, 2014, at 5-12) (finding:

orders entered July 9, 2012 and November 30, 2012 provided Appellant with

original notice of pending sale and dispensed with requirement for new

notice of future sale dates; Appellant made no credible allegation that

s application for financing and filing

appeared to be aware of subsequent sale dates; orders entered July 9, 2012

3129.3(a) and provided exception to requirement of new notice following

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advertising of the sale of the Property is required and any further

postponements can be done by announcement or by sending a letter, fax or

due process; it was entirely reasonable to expect that Appellant would

atten

petitions necessitated postponements). Accordingly, we affirm on the basis

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2014

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