Gypsy Lane Owners' Ass'n v. DeJesus

31 Pa. D. & C.5th 23, 2013 WL 8338839, 2013 Phila. Ct. Com. Pl. LEXIS 159
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 20, 2013
DocketNo. 04259
StatusPublished

This text of 31 Pa. D. & C.5th 23 (Gypsy Lane Owners' Ass'n v. DeJesus) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gypsy Lane Owners' Ass'n v. DeJesus, 31 Pa. D. & C.5th 23, 2013 WL 8338839, 2013 Phila. Ct. Com. Pl. LEXIS 159 (Pa. Super. Ct. 2013).

Opinion

TUCKER, J.,

I. PROCEDURAL HISTORY & FACTS

This matter comes before the court from the granting of Timothy Murphy and Lissette DeJesus’ (hereinafter referred to as “appellants”) motion to set aside sheriffs sale. On October 27, 2009, Gypsy Lane Owners’ Association, a condo association (hereinafter referred to as “appellee”) filed a complaint in breach of contract for appellants’ failure to pay condominium fees for a condo located in Philadelphia, PA. Compl. filed (10/27/2009). This matter was schedule for arbitration in the Philadelphia County Court of Common Pleas Arbitration Center on October 28, 2009. Arbitration hearing scheduled (10/28/2009). After filing answers to appellee’s complaint, appellants’ [25]*25filed a declaration of bankruptcy. Ans. to compl. filed (11/20/2009); ans. to compl. filed (12/28/2009); deferred — bankruptcy (06/11/2010). This matter was removed from deferred status on August 11, 2010. Removed from deferred status (08/11/2010).

The arbitration in this matter went forward; the arbitrators found in favor of appellee and against appellants in the amount of twenty-eight thousand nine hundred and fifteen dollars and seventy cents ($28,915.70). Report & award of arbitrators. Appellants’ appealed the arbitration award on November 15, 2010* and this matter was listed in the Philadelphia County Court of Common Pleas trial ready pool. Listed trial ready pool (11/16/2010). On July 20,2011, the court entered an order that annexed a consent agreement executed by the parties; pursuant to the consent agreement, judgment was entered against appellants’ and in favor of appellees in the amount of forty thousand dollars ($40, 000.00). Order entered — final disp. by J. Moss (07/20/2011).

On August 10, 2011, Eugene Curry filed an appeal of the judgment entered by consent agreement. Appeal to Superior Court. Apparently, Mr. Curry was seeking to represent appellant DeJesus in this matter; Mr. Curry in not an attorney. Opinion filed (10/11/2011). The appeal of the entry of the judgment by consent agreement was eventually quashed by the Commonwealth Court. Appeal quashed by appellate ct. (10/10/2012). Meanwhile, appellee commenced proceedings to enforce its judgment. Praecipe to issue writ filed (10/31/2011); affidavit of [26]*26service filed (01/19/2012).

On April 2, 2012, a counseled motion to postpone sheriff’s sale was filed on behalf of appellant DeJesus. Mot. Postpone sheriff sale (04/02/2012). The motion to postpone sheriff’s sale was denied. Order entered by J. Tucker (04/02/2013). Appellants’ condo was sold at sheriff’s sale on April 3, 2012; however, the terms of the sale were not completed within the time prescribed by the law and the sheriff returned the writ on September 26, 2012. Mot. to set aside sheriff’s sale (01/16/2013); writ return filed (09/26/2012). A sale of the subject property was scheduled for January 2013. Mot. for reconsideration (02/22/2013).

On January 16, 2013, appellants’ filed a counseled motion to set aside sheriffs sale wherein alleging: (1) the sale of the property was postponed pending an emergency hearing by the court. Appellee thereafter scheduled a sheriff’s sale more than one hundred and thirty (130) days later without serving notice pursuant to Pa.R.C.P. 3129.2; (2) Appellee also did not file an affidavit in accordance withPa.R.C.P. 3129.2; and (3) although appellee’s attorney purchased the condo at the sheriff’s sale, the sheriff never delivered the deed to appellee’s attorney. Mot. to set aside sheriffs sale (01/16/2013). Based on appellants’ motion to set aside sheriff’s sale and response thereto, the court granted appellants’ motion to set aside the sheriff’s sale on February 13, 2013. Mot. to set aside sheriffs sale (01/16/2013); answer (mot./pet. filed) (02/05/2013); order entered by J. Tucker (02/13/2013).

[27]*27On February 22, 2013, appellee filed a motion for reconsideration of the court’s order granting appellants’ motion to set aside sheriffs sale, wherein alleging: (1) proper notice of the April 3, 2012 sheriff’s sale was given to appellants. When the sale remained incompleted, the sheriff returned the writ and relisted the sheriff’s sale of the condo for January 2013. Since the property had already been sold, no further notice was required pursuant to Pa.R.C.P. 3129.3; (2) Appellee was not required to file an additional affidavit pursuant to Pa.RC.P. 3129.2 because the sale of the property had already occurred, the terms had not been met, and the property was relisted for sale in January 2013; (3) a straw purchaser sent by appellants purchased the subject property, but did not pay the balance of the bid within the time prescribed by law, thereby resulting in the property being relisted in January 2013; (4) nevertheless, the January 2013 sheriff’s sale was advertised by publication in December 2012. Mot. for reconsideration (02/22/2013). The court granted appellee’s motion for reconsideration; denied appellants’ motion to set aside sheriffs sale; and deemed the sheriffs sale of January 8, 2013 as remaining. Order entered by J. Tucker (02/27/2013).

On March 21, 2013, appellants’ appealed the court’s order granting reconsideration and deeming the sheriff’s sale of January 8, 2013 valid to the Commonwealth Court. Appeal to Commonwealth Court (03/21/2013). The court ordered appellants to file of record a concise statement of matters complained of (“1925(b) statement”) [28]*28pursuant to Pa.R.A.P. 1925(b). Order entered by J. Tucker (03/26/2013). Appellants filed their 1925(b) statement. 1925(b) statement (04/15/2013), wherein stating, verbatim, renumbered for clarity:

(1) The trial court erred in granting plaintiff’s motion for reconsideration of the February 12, 2013 order setting aside the sheriff’s sale before defendant appellants had an opportunity to answer. Plaintiff filed a motion for reconsideration on February 22, 2013 and the trial court granted the motion on February 26, 2013.
(2) The trial court erred in granting plaintiff’s motion for reconsideration of the February 12, [] order without requiring moving to prove an error of law.
(3) The trial court erred in granting plaintiff’s motion for reconsideration of the February 12,2013 order without requiring plaintiff to disclose new facts not available at the time that the original motion to set aside sheriff’s sale was considered.
(4) The trial court erred in finding that the sale of 4000 Gypsy Lane, Unit 245 in April 2012 had not been stayed, continued, postponed, or adjourned.
(5) The trial court erred in not finding that Pa.R.C.P. 3129.3 governed the sheriff’s sale of4000 Gypsy Lane, Unit 245 on January 8, 2013.
(6) The trial court erred in not finding that Pa.R.C.P. 3129.1 and 3129.2 applied to the sheriff’s sale of 4000 [29]*29Gypsy Lane, Unit 245 on January 8, 2013.
(7) The trial court erred in finding that defendants did not need to be noticed on the sheriff’s sale of 4000 Gypsy Lane, Unit 245 on January 8, 2013.
(8) The trial court erred in finding that mortgagees and additional entities other than the defendants, such as PNC mortgage, did not need to be notified of the sheriff’s sale of 4000 Gypsy Lane Unit 245 on January 8, 2013.

1925(b) statement (04/15/2013).

A discussion ensues:

II.

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Bluebook (online)
31 Pa. D. & C.5th 23, 2013 WL 8338839, 2013 Phila. Ct. Com. Pl. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gypsy-lane-owners-assn-v-dejesus-pactcomplphilad-2013.