Northwest Bank v. Wisser, L.

• Court: Superior Court of Pennsylvania
• Decided: May 29, 2024
• Docket: 1330 EDA 2023
• Status: Unpublished

Opinion

J-A08022-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

NORTHWEST BANK, SUCCESSOR TO : IN THE SUPERIOR COURT OF UNION COMMUNITY BANK, : PENNSYLVANIA SUCCESSOR TO UNION NATIONAL : COMMUNITY BANK : : : v. : : : No. 1330 EDA 2023 LARRY L. WISSER AND CATHLEEN R. : WISSER : : Appellants :

Appeal from the Order Entered April 20, 2023 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2016-C-2244

BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED MAY 29, 2024

Appellants, Larry L. Wisser and Cathleen R. Wisser (hereinafter

“Cathleen”), appeal from the order entered on April 20, 2023, denying their

petition to set aside the sheriff’s sale of three properties in Lehigh County,

Pennsylvania. We affirm.

We briefly summarize the facts and procedural history of this case as

follows. Appellants owned three parcels of property in New Tripoli,

Pennsylvania. On December 17, 2021, the properties were sold at sheriff’s

sale for a combined total of $715,000.00. On February 10, 2022, Appellants

filed a petition to set aside the sheriff's sale, arguing the sales price was

grossly inadequate. After several postponements, the trial court held hearings

on March 27, 2023 and April 18, 2023. Cathleen testified that the fair market J-A08022-24

value of the three combined parcels was $2,000,000.00 “because it is the

largest farm in the neighborhood.” See Trial Court Opinion, 4/20/2023, at 2.

Northwest Bank, as successor to Union Community Bank and Union National

Community Bank (hereinafter “Northwest Bank”) presented certified copies of

the official forms from the U.S. Bankruptcy Court in the Eastern District of

Pennsylvania, wherein Appellants declared, in their 2020 bankruptcy petition,

that the combined value of the properties was $1,000,000.00. By opinion

and order entered on April 20, 2023, the trial court denied Appellants relief.

This timely appeal resulted.1

On appeal, Appellants present the following issue for our review:

Whether the trial court committed an error of law, or abused its discretion, when it denied and dismissed the[ir] petition [] to set aside the sheriff’s sale [held on] December 17, 2021, concluding that the property was not sold for a “grossly inadequate price” at the sheriff's sale?

Appellants’ Brief at 4 (complete capitalization and lettering omitted).

Appellants contend that the trial court committed an error of law or

abused its discretion when it “made two material and erroneous evidentiary

rulings” before rendering its decision. Id. at 7. First, Appellants contend that

the trial court erred by determining Cathleen’s testimony was not credible in

light of the trial court’s failure to admit documents into evidence as offered by

____________________________________________

1 Appellants filed a timely notice of appeal on May 18, 2023. On June 21, 2023, the trial court filed a statement pursuant to Pa.R.A.P. 1925(a), relying upon its earlier opinion entered on April 20, 2023.

-2- J-A08022-24

Appellants. Id. at 12. Appellants explain that they offered, but the trial court

failed to admit,

records from the Lehigh County [Property] Assessment Office (“Assessment Office”) obtained by [Appellants, which] contained information for certain other farms located near the [subject properties], providing the size[s] of the farm[s], [their assessed values], the purchase price[s] paid for [them], when [they were] purchased, the owners and location[s of the farms], and most importantly, the fair market value[s] as determined by the Assessment Office. The purpose of these documents was to support [Cathleen’s] testimony that the [total] value of the [p]roperty is $2,000,000.00, as she testified to during the March 27, 2023.

In its wisdom, the trial court concluded that [Appellants] could not authenticate the documents, but only someone from the Assessment Office could[. Appellants] take issue with this finding.

Id. at 12-13. In conjunction with this claim, Appellants additionally assert

that “[t]he trial court also failed to take judicial notice of the Assessment Office

records, presumably because the contents of said records are subject to

reasonable dispute …but, that goes to the weight of the evidence contained in

those documents” rather than admissibility. Id. at 14-15. Appellants contend

that “the only evidence to contradict” Cathleen’s testimony was the

bankruptcy document Appellants filed in 2020, entered into evidence by

Northwest Bank. Id. at 16. Ultimately, Appellants argue that the fair market

value of the properties at issue was $2,000,000.00, the sheriff sale garnered

$715,000.00, that made the sale price-to-value ratio 35.75%, which,

therefore, was “grossly inadequate” and requires the sheriff sale to be set

aside. Id. at 19-20.

-3- J-A08022-24

We have previously determined:

Admission of evidence is within the sound discretion of the trial court and we review the trial court's determinations regarding the admissibility of evidence for an abuse of discretion. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party. For evidence to be admissible, it must be competent and relevant. Evidence is competent if it is material to the issue to be determined at trial. Evidence is relevant if it tends to prove or disprove a material fact. Relevant evidence is admissible if its probative value outweighs its prejudicial impact. The trial court's rulings regarding the relevancy of evidence will not be overturned absent an abuse of discretion.

Pursuant to Rule of Evidence 402, relevant evidence is generally admissible, and irrelevant evidence is inadmissible. Further, relevant evidence may be excluded if its probative value is outweighed by its potential for unfair prejudice, defined as a tendency to suggest decision on an improper basis or to divert the [factfinder’s] attention away from [the] duty of weighing the evidence impartially.

Czimmer v. Janssen Pharms., Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015)

(citation and original brackets omitted).

Moreover, the following rules of evidence are applicable to the issue of

authentication raised by Appellants. “Unless stipulated, to satisfy the

requirement of authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a finding that the item

is what the proponent claims it is.” Pa.R.E. 901(a). Pursuant to Pennsylvania

Rule of Evidence 902, some documents are self-authenticating:

Rule 902. Evidence That is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

-4- J-A08022-24

(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, ... a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed But Are Signed and Certified. A document that bears no seal if:

(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.

* * *

(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:

(A) the custodian or another person authorized to make the certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3), a statute or a rule prescribed by the Supreme Court.

A certificate required by paragraph (4)(B) may include a handwritten signature, a copy of a handwritten signature, a computer generated signature, or a signature created, transmitted, received, or stored by electronic means, by the signer or by someone with the signer's authorization. A seal may, but need not, be raised.

Pa.R.E. 902(1), (2), and (4).

Here, Appellants sought to introduce photocopies of documents from the

Lehigh County Property Assessment Office into evidence and asked that the

-5- J-A08022-24

trial court take judicial notice of them. N.T., 3/27/2023, at 17 and 28-30.

Northwest Bank argued that the documents were “not official documents”

because there was no indicia that the documents were certified as official

records. Id. at 29-30. The trial court did not admit the documents into the

record and held them in abeyance until the parties briefed the issue of

admissibility. Id. at 34. Thereafter, Northwest Bank introduced Appellants’

2020 bankruptcy document into the record. N.T., 3/27/2023, at 67. The

document was certified, attested to by the Deputy Clerk of the United States

Bankruptcy Court, and contained a raised seal. Id. at 67-68. As such, the

trial court admitted the document into evidence. Id. at 69. Following briefing

by both parties and argument on April 18, 2023, the trial court determined

that Appellants “offered no testimony to authenticate the [assessment]

documents” and that Appellants’ proffered exhibits were “not self-

authenticating … because they neither [bore] a seal or a signature of an

employee of the Commonwealth of Pennsylvania[.]” N.T., 4/18/2023, at 10.

The trial court further opined that “the information contained within

[Appellants’] proposed exhibits could be subject to dispute [and] not generally

known throughout Lehigh County[.]” Id. at 11. As such, the trial court

determined that it would be an abuse of discretion to take “judicial notice of

unauthenticated photocopies of [potentially] disputed documents.” Id. at 13.

Upon review of the record and applicable law, we agree with the trial

court’s evidentiary rulings. First, the trial court properly admitted Northwest

Bank’s exhibit pertaining to Appellants’ 2020 bankruptcy. The document was

-6- J-A08022-24

certified, attested to by the custodian of the record, and contained a raised

seal. Accordingly, pursuant to Rule 902(4), the certified copy of the public

bankruptcy document was self-authenticating and, thus, properly admitted.

The assessment documents of similarly situated properties proffered by

Appellants were mere photocopies, were not certified, and not attested to by

the custodian of those records. As such, the trial court properly excluded

those documents from trial.

Moreover, the trial court properly declined to take judicial notice of the

documents Appellants purportedly obtained from the Lehigh County Property

Assessment Office. “The court may judicially notice a fact that is not subject

to reasonable dispute [when] it … is generally known within the trial court's

territorial jurisdiction [] or [] can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” Pa.R.E. 201. This

Court has stated:

A court may take judicial notice of an indisputable adjudicative fact. A fact is indisputable if it is so well established as to be a matter of common knowledge. Judicial notice is intended to avoid the formal introduction of evidence in limited circumstances where the fact sought to be proved is so well known that evidence in support thereof is unnecessary.

Judicial notice allows the trial court to accept into evidence indisputable facts to avoid the formality of introducing evidence to prove an incontestable issue. However, the facts must be of a matter of common knowledge and derived from reliable sources whose accuracy cannot reasonably be questioned.

Kinley v. Bierly, 876 A.2d 419, 421 (Pa. Super. 2005) (internal citations and

quotations omitted). “Where material facts are in dispute, judicial notice may

-7- J-A08022-24

not be used to deny a party an opportunity to present contrary evidence.”

220 Partnership v. Philadelphia Elec. Co., 650 A.2d 1094, 1097 (Pa.

Super. 1994).

Here, the property assessments for other similarly situated properties

were not indisputable or common knowledge and, further, Appellants could

not use judicial notice of the property assessments to deny Northwest Bank

the opportunity to present contrary evidence. Accordingly, the trial court

properly prohibited Appellants’ proffered evidence from trial. Therefore, the

only evidence regarding the fair market value of the properties at issue was

Cathleen’s testimony that Appellants’ property was worth $2,000,000.00 and

the bankruptcy petition showing Appellants previously valued the properties

at issue at $1,000,000.00 in 2020. “The finder of fact is entitled to weigh the

evidence presented and assess its credibility” and “is free to believe all, part,

or none of the evidence and we as an appellate court will not disturb the

credibility determinations of the court below.” Sitler v. Jones, 2024 WL

927429 (Pa. Super. 2024) (citations omitted). In this case, the trial court did

not find Cathleen’s testimony credible in light of the bankruptcy petition

showing that Appellants’ valued the properties at $1,000,000.00 in 2020.

Trial Court Opinion, 4/20/2023, at 3-4. The record supports the trial court’s

decision and we will not disturb its credibility determinations.

In turn, the trial court concluded:

[t]he purchase price for the [s]ubject [p]roperties at the [s]heriff’s sale was $715,000.00. That sum represents 71% of the [s]ubject [p]roperties’ combined value of $1,000,000.00 as agreed to by

-8- J-A08022-24

[Appellants] in their 2020 bankruptcy petition. On this record, the purchase price of the [s]ubject [p]roperties at the [s]heriff’s sale represented the best price obtainable which [Appellants] have failed to rebut with clear and convincing evidence.

Id. at 3 (case citation omitted).

An application to rescind a sheriff’s sale of real property based upon

gross inadequacy of the sales price invokes the equitable powers of the court.

In past cases, we have stated:

As a general rule, the burden of proving circumstances warranting the exercise of the court's equitable powers is on the applicant, and the application to set aside a sheriff's sale may be refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence.

An abuse of discretion occurs where, for example, the trial court misapplies the law.

The following governs our inquiry as to the gross inadequacy of the sale price:

Where a sale is challenged based upon the adequacy of the price our courts have frequently said that mere inadequacy of price[,] standing alone[,] is not a sufficient basis for setting aside a sheriff's sale. However, where a ‘gross inadequacy’ in the price is established courts have found proper grounds exist to set aside a sheriff's sale. The courts have traditionally looked at each case on its own facts. It is for this reason that the term ‘grossly inadequate price’ has never been fixed by any court at any given amount or any percentage amount of the sale. Further, it is presumed that the price received at a duly advertised public sale is the highest and best obtainable.

Bank of America, N.A. v. Est. of Hood, 47 A.3d 1208, 1211 (Pa. Super.

2012) (internal citations omitted). However, “Pennsylvania courts have

-9- J-A08022-24

concluded that a sheriff's sale price is grossly inadequate where sale price was

a small percentage—roughly ten percent or less—of the established market

value.” Id. at 1212. In Blue Ball National Bank v. Balmer, 810 A.2d 164,

166-167 (Pa. Super. 2002), for example, our Supreme Court affirmed the trial

court’s finding of “no gross inadequacy where the property in question sold

for 72% of the appraisal value.” Id. at 1211, citing Balmer. Here, the trial

court’s determination that the properties at issue were sold at sheriff sale for

71% of their fair market value and, thus, garnered the best price obtainable

was not an abuse of discretion. For all of the foregoing reasons, Appellants

are not entitled to relief.

Order affirmed.

Date: 5/29/2024

- 10 -