The Huntington National Bank v. McNeely, M.

Opinion

J-A16015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

THE HUNTINGTON NATIONAL BANK : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MICHAEL MCNEELY : : v. : : MAXANNA PROPERTIES, INC. : : : APPEAL OF: MICHAEL MCNEELY : No. 1098 WDA 2023

Appeal from the Order Entered September 7, 2023 In the Court of Common Pleas of Allegheny County Civil Division at No(s): 22-000082

BEFORE: KUNSELMAN, J., MURRAY, J., and McLAUGHLIN, J.

JUDGMENT ORDER BY KUNSELMAN, J.: FILED: July 31, 2024

Defendant, Michael McNeely, appeals from the order denying his petition

to set aside the sheriff’s sale of his home. Because Mr. McNeely breached a

consent decree concerning the preservation and possession of the home

pending appeal, we dismiss this appeal.

Huntington Nation Bank held the mortgage on Mr. McNeely’s home, and,

when he failed to make timely payments, Huntington commenced this action

to foreclose on the property. Huntington obtained a default judgment against

Mr. McNeely. On July 3, 2023, the Sheriff of Allegheny County sold the home

to Maxanna Properties, Inc. (“Buyer”). Three weeks later, Mr. McNeely filed

a petition to set aside the sheriff’s sale, and Buyer intervened to oppose the

petition. After briefing and argument, the trial court denied the petition. J-A16015-24

This timely appeal followed. In response, on October 24, 2023, Buyer

filed a motion pursuant to Pennsylvania Rules of Appellate Procedure 1701

and 1733 to compel Mr. McNeely to preserve the home pending appeal.

On November 14, 2023, the parties entered a consent order granting

Buyer’s motion. They agreed Mr. McNeely would (1) maintain the condition

of the property, (2) pay the utilities, (3) insure the property with Buyer named

as payee, (4) pay $4,100 per month into escrow to reside in the home during

this appeal, and (5) allow Buyer to inspect the property. See T.C.O.,

11/14/32, at 1-2. If Mr. McNeely failed “to comply with the conditions and

requirements set forth in this Consent Order, [he] agrees to the dismissal of

[his] appeal” to this Court. Id. at 2.

Mr. McNeely failed to make the monthly payments, and, on February 6,

2024, the trial court entered an order finding him in default of the parties’

consent order. The court gave him five days to cure the default. See T.C.O.,

2/6/24, at 1.

On March 27, 2024, Buyer filed a motion with this Court to dismiss Mr.

McNeely’s appeal, based on his breaching of the consent order. Attached to

the motion is the affidavit, dated March 14, 2024, of Buyer’s attorney attesting

to Mr. McNeely’s failure to pay the required $4,100. See Buyer’s Motion to

Quash, Exhibit D.1 Mr. McNeely did not file a response opposing the motion.

____________________________________________

1 Although Buyer titled its motion as a motion to quash, the relief it is requesting is actually a dismissal of the appeal. As such, we treat the motion as a motion to dismiss.

-2- J-A16015-24

Because a consent order “is regarded as a contract between the parties,

it must be construed the same as any other contract.” Lower Frederick

Twp. v. Clemmer, 543 A.2d 502, 510 (Pa. 1988). As such, a consent order

“must be interpreted in accordance with the general principles governing the

interpretation of all contracts.” Commonwealth by Shapiro v. UPMC, 208

A.3d 898, 909 (Pa. 2019). “In interpreting the terms of a contract, the

cardinal rule followed by courts is to ascertain the intent of the contracting

parties.” Id. “If the contractual terms are clear and unambiguous on their

face, then such terms are deemed to be the best reflection of the intent of the

parties.” Id.

Here, by the clear and unambiguous terms of the parties’ consent order,

Mr. McNeely agreed to pay $4,100 per month into escrow during this appeal.

Failing that, he agreed to the dismissal of this appeal. The record reflects and

the trial court concluded that he did not make the monthly payments required

to maintain this appeal. By not responding to Buyer’s motion to dismiss, Mr.

McNeely does not persuade us that this appeal should continue.

Thus, we hold that, as a matter of contract law, Mr. McNeely has agreed

to the dismissal of this appeal. We enforce the unambiguous language of the

parties’ contract and grant Buyer’s motion to dismiss.

Appeal dismissed.

-3- J-A16015-24

DATE: 07/31/2024

-4-