J-A08038-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
U.S. BANK TRUST NATIONAL : IN THE SUPERIOR COURT OF ASSOCIATION : PENNSYLVANIA : : v. : : : KELLI TROIANI AND MICHAEL : TROIANI : No. 1588 EDA 2023 : Appellants :
Appeal from the Order Entered June 8, 2023 In the Court of Common Pleas of Delaware County Civil Division at No(s): 2016-003805
BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 7, 2024
Kelli Troiani and Michael Troiani appeal from the order denying their
petition to set aside sheriff’s sale. We affirm.
In May 2016, U.S. Bank Trust National Association’s (“U.S. Bank”)
predecessor in interest commenced this mortgage foreclosure action against
Kelli Troiani and Michael Troiani, husband and wife, on real property in Media,
Pennsylvania. Mr. Troiani, an attorney, entered his appearance as counsel on
behalf of himself and his wife. In November 2018, an in rem judgment was
entered by agreement against the Troianis in the amount of $857,406.76, plus
interest. In February 2020, U.S. Bank’s predecessor in interest sought to
execute on the judgment. The sheriff’s sale was originally scheduled for June
2020, but was ultimately continued to March 18, 2022. U.S. Bank was
substituted as the plaintiff in the matter. J-A08038-24
U.S. Bank sent notice of the sheriff’s sale scheduled for March 18, 2022
to Mr. Troiani’s law office at 115 Dauphin Drive, Media, PA 19063 by both
regular and certified mail. U.S. Bank also sent notice of the sale to Mr. Troiani’s
former law office at 25 West Third Street, Media, PA 19063. See Affidavits of
Mailing, dated 2/8/22; Amended Affidavit Pursuant to Rule 3129.2, dated
11/30/22.
The property was sold at the sheriff’s sale, and the Troianis filed their
first petition to set aside the sheriff’s sale. The court granted the petition and
ordered that the sale of the property be “relisted and conducted on Friday,
November 18, 2022[.]” Order, 9/20/22. The order also provided that “further
advertisement of the Sheriff’s sale is not required, and there is no requirement
for new notice of sale to the [Troianis], nor a requirement for new notice of
sale to the lienholders previously set forth in [U.S. Bank’s] Affidavit Pursuant
to Pa.R.C.P. 3129.1.” Id. The order further stated that “[U.S. Bank] will
provide [the Troianis] with copies of this Order.” Id.
U.S. Bank sent to Mr. Troiani’s office at 115 Dauphin Drive, via first class
regular mail, a copy of the order directing that the property be relisted for the
November 18, 2022 sheriff’s sale. See Letter, dated 9/29/22, attaching copy
of Order, 9/20/22.
Thereafter, on November 18, 2022, the property was sold at sheriff’s
sale and U.S. Bank was the successful purchaser of the property.
The Troianis then filed their second petition to set aside sheriff’s sale
asking the court to set aside the sheriff’s sale held on November 18, 2022.
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The court held argument and denied the petition. This timely appeal followed.
The Troianis raise a single issue: “Did the lower court commit reversible error
in denying [the Troianis’] Second Petition to Set Aside Sheriff[’s] Sale?”
Troianis’ Br. at 10 (suggested answer omitted).
The Troianis argue they never received proper notice of the sheriff’s
sale. They maintain U.S. Bank’s earlier notice of the sheriff’s sale on March
18, 2022 failed to comply with Pennsylvania Rules of Civil Procedure 3129.1
and 3129.2. Id. at 18. Mr. Troiani argues that although U.S. Bank claims it
served him at his work address at 115 Dauphin Drive by certified mail, he did
not sign the certified mailing. He states that someone named “Micheal” signed,
which is not how he spells his name, and claims it was not his signature. Id.
at 23. He argues that he was the only person at the 115 Dauphin Drive address
to sign for a certified mailing. Id. at 13, 23.
The Troianis further argue that although the September 20, 2022 order
indicated that no new notice of the relisted sale was required, they never
received proper service of the earlier sale on March 18, 2022, so U.S. Bank
was required to effectuate new service on them. They also contend that the
September 20, 2022 order was not a “special order” under Pa.R.C.P.
3129.3(a) as it was “not based on a motion filed by [U.S. Bank] nor was it the
result of a sale being stayed, continued, postponed or adjourned.” Id. at 16.
“A petition to set aside a sheriff’s sale is grounded in equitable
principles[.]” LSF8 Master Participation Trust v. Petrosky, 271 A.3d 1288,
1291 (Pa.Super. 2022) (citation omitted). “The petitioner bears the burden of
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establishing grounds for relief.” Id. The petitioner also bears the “burden of
showing inadequate notice result[ed] in prejudice[.]” GMAC Mortgage Corp.
of PA v. Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007). “When reviewing
a trial court’s ruling on a petition to set aside a sheriff’s sale, we recognize
that the court’s ruling is a discretionary one, and it will not be reversed on
appeal unless there is a clear abuse of that discretion.” Id.
The notice requirements for sheriff’s sales of real property are set forth
in Pennsylvania Rules of Civil Procedure 3129.1, 3129.2, and 3129.3. Under
Rule 3129.1, “[n]o sale of real property upon a writ of execution shall be held
until the plaintiff has filed with the sheriff the affidavit required by subdivision
(b) and the notice required by Rule 3129.2 has been served.” Pa.R.C.P.
3129.1(a). Rule 3129.2 requires written notice of the sale of real property “to
all persons whose names and addresses are set forth in the affidavit required
by Rule 3129.1[.]” Pa.R.C.P. 3129.2(a). Rule 3129.2 further states service of
the notice shall be made “upon the defendant in the judgment who has
entered an appearance, by the plaintiff in the manner provided by Rule 440[.]”
Pa.R.C.P. 3129.2(c)(1)(ii); see also Pa.R.C.P. 3129.2 Explanatory Cmt. –
1989 (“in the case of a defendant who has entered an appearance, subdivision
(c)(1)(ii) provides that the notice of sale is to be served in the same manner
as other legal papers pursuant to Rule 440 upon the defendant’s attorney of
record or, if none, upon the defendant himself”). Rule 440, in turn, allows
service “by handing or mailing a copy to or leaving a copy for each party at
the address of the party’s attorney of record endorsed on an appearance or
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prior pleading of the party, or at such other address as a party may agree[.]”
Pa.R.C.P. 440(a)(1)(i).
Here, U.S. Bank complied with Rule 3129.2(c)(1)(ii) by sending notice
of the March 18, 2022 sheriff’s sale to Mr. Troiani, as attorney of record, at
his office at 115 Dauphin Street via regular mail on February 8, 2022. Mr.
Troiani claims he did not sign the certified mailing, but Rule 440 contains no
requirement that service must be made by certified mail. Moreover, Mr.
Troiani does not contend that the address where U.S. Bank mailed the notice
– 115 Dauphin Street – was an incorrect address. Thus, the Troianis’ claim
that they did not receive notice of the March 18, 2022 sale is without merit.
Furthermore, the court’s September 20, 2022 order provided that no
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J-A08038-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
U.S. BANK TRUST NATIONAL : IN THE SUPERIOR COURT OF ASSOCIATION : PENNSYLVANIA : : v. : : : KELLI TROIANI AND MICHAEL : TROIANI : No. 1588 EDA 2023 : Appellants :
Appeal from the Order Entered June 8, 2023 In the Court of Common Pleas of Delaware County Civil Division at No(s): 2016-003805
BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 7, 2024
Kelli Troiani and Michael Troiani appeal from the order denying their
petition to set aside sheriff’s sale. We affirm.
In May 2016, U.S. Bank Trust National Association’s (“U.S. Bank”)
predecessor in interest commenced this mortgage foreclosure action against
Kelli Troiani and Michael Troiani, husband and wife, on real property in Media,
Pennsylvania. Mr. Troiani, an attorney, entered his appearance as counsel on
behalf of himself and his wife. In November 2018, an in rem judgment was
entered by agreement against the Troianis in the amount of $857,406.76, plus
interest. In February 2020, U.S. Bank’s predecessor in interest sought to
execute on the judgment. The sheriff’s sale was originally scheduled for June
2020, but was ultimately continued to March 18, 2022. U.S. Bank was
substituted as the plaintiff in the matter. J-A08038-24
U.S. Bank sent notice of the sheriff’s sale scheduled for March 18, 2022
to Mr. Troiani’s law office at 115 Dauphin Drive, Media, PA 19063 by both
regular and certified mail. U.S. Bank also sent notice of the sale to Mr. Troiani’s
former law office at 25 West Third Street, Media, PA 19063. See Affidavits of
Mailing, dated 2/8/22; Amended Affidavit Pursuant to Rule 3129.2, dated
11/30/22.
The property was sold at the sheriff’s sale, and the Troianis filed their
first petition to set aside the sheriff’s sale. The court granted the petition and
ordered that the sale of the property be “relisted and conducted on Friday,
November 18, 2022[.]” Order, 9/20/22. The order also provided that “further
advertisement of the Sheriff’s sale is not required, and there is no requirement
for new notice of sale to the [Troianis], nor a requirement for new notice of
sale to the lienholders previously set forth in [U.S. Bank’s] Affidavit Pursuant
to Pa.R.C.P. 3129.1.” Id. The order further stated that “[U.S. Bank] will
provide [the Troianis] with copies of this Order.” Id.
U.S. Bank sent to Mr. Troiani’s office at 115 Dauphin Drive, via first class
regular mail, a copy of the order directing that the property be relisted for the
November 18, 2022 sheriff’s sale. See Letter, dated 9/29/22, attaching copy
of Order, 9/20/22.
Thereafter, on November 18, 2022, the property was sold at sheriff’s
sale and U.S. Bank was the successful purchaser of the property.
The Troianis then filed their second petition to set aside sheriff’s sale
asking the court to set aside the sheriff’s sale held on November 18, 2022.
-2- J-A08038-24
The court held argument and denied the petition. This timely appeal followed.
The Troianis raise a single issue: “Did the lower court commit reversible error
in denying [the Troianis’] Second Petition to Set Aside Sheriff[’s] Sale?”
Troianis’ Br. at 10 (suggested answer omitted).
The Troianis argue they never received proper notice of the sheriff’s
sale. They maintain U.S. Bank’s earlier notice of the sheriff’s sale on March
18, 2022 failed to comply with Pennsylvania Rules of Civil Procedure 3129.1
and 3129.2. Id. at 18. Mr. Troiani argues that although U.S. Bank claims it
served him at his work address at 115 Dauphin Drive by certified mail, he did
not sign the certified mailing. He states that someone named “Micheal” signed,
which is not how he spells his name, and claims it was not his signature. Id.
at 23. He argues that he was the only person at the 115 Dauphin Drive address
to sign for a certified mailing. Id. at 13, 23.
The Troianis further argue that although the September 20, 2022 order
indicated that no new notice of the relisted sale was required, they never
received proper service of the earlier sale on March 18, 2022, so U.S. Bank
was required to effectuate new service on them. They also contend that the
September 20, 2022 order was not a “special order” under Pa.R.C.P.
3129.3(a) as it was “not based on a motion filed by [U.S. Bank] nor was it the
result of a sale being stayed, continued, postponed or adjourned.” Id. at 16.
“A petition to set aside a sheriff’s sale is grounded in equitable
principles[.]” LSF8 Master Participation Trust v. Petrosky, 271 A.3d 1288,
1291 (Pa.Super. 2022) (citation omitted). “The petitioner bears the burden of
-3- J-A08038-24
establishing grounds for relief.” Id. The petitioner also bears the “burden of
showing inadequate notice result[ed] in prejudice[.]” GMAC Mortgage Corp.
of PA v. Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007). “When reviewing
a trial court’s ruling on a petition to set aside a sheriff’s sale, we recognize
that the court’s ruling is a discretionary one, and it will not be reversed on
appeal unless there is a clear abuse of that discretion.” Id.
The notice requirements for sheriff’s sales of real property are set forth
in Pennsylvania Rules of Civil Procedure 3129.1, 3129.2, and 3129.3. Under
Rule 3129.1, “[n]o sale of real property upon a writ of execution shall be held
until the plaintiff has filed with the sheriff the affidavit required by subdivision
(b) and the notice required by Rule 3129.2 has been served.” Pa.R.C.P.
3129.1(a). Rule 3129.2 requires written notice of the sale of real property “to
all persons whose names and addresses are set forth in the affidavit required
by Rule 3129.1[.]” Pa.R.C.P. 3129.2(a). Rule 3129.2 further states service of
the notice shall be made “upon the defendant in the judgment who has
entered an appearance, by the plaintiff in the manner provided by Rule 440[.]”
Pa.R.C.P. 3129.2(c)(1)(ii); see also Pa.R.C.P. 3129.2 Explanatory Cmt. –
1989 (“in the case of a defendant who has entered an appearance, subdivision
(c)(1)(ii) provides that the notice of sale is to be served in the same manner
as other legal papers pursuant to Rule 440 upon the defendant’s attorney of
record or, if none, upon the defendant himself”). Rule 440, in turn, allows
service “by handing or mailing a copy to or leaving a copy for each party at
the address of the party’s attorney of record endorsed on an appearance or
-4- J-A08038-24
prior pleading of the party, or at such other address as a party may agree[.]”
Pa.R.C.P. 440(a)(1)(i).
Here, U.S. Bank complied with Rule 3129.2(c)(1)(ii) by sending notice
of the March 18, 2022 sheriff’s sale to Mr. Troiani, as attorney of record, at
his office at 115 Dauphin Street via regular mail on February 8, 2022. Mr.
Troiani claims he did not sign the certified mailing, but Rule 440 contains no
requirement that service must be made by certified mail. Moreover, Mr.
Troiani does not contend that the address where U.S. Bank mailed the notice
– 115 Dauphin Street – was an incorrect address. Thus, the Troianis’ claim
that they did not receive notice of the March 18, 2022 sale is without merit.
Furthermore, the court’s September 20, 2022 order provided that no
further notice of the rescheduled sale was required. Generally, if a sale of real
property is stayed, continued, postponed, or adjourned, new notice must be
given. See Pa.R.C.P. 3129.3(a). However, if there is a “special order of court,”
new notice is not required. See id. The Rule does not define a special order
nor contain any specific limitation on what might constitute a special order.
The Explanatory Comment to Rule 3129.3, however, states that an exception
to the new notice requirement is “a special order of court dispensing with
the requirement of new notice” and this exception “gives the court
discretion to allow postponement of the sale without new notice in appropriate
cases.” Pa.R.C.P. 3129.3 Explanatory Cmt. – 1989 (emphasis added).
Here, the court’s September 20, 2022 order was a special order of court.
It relisted the sale for a date certain and indicated that “further advertisement
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of the Sheriff’s sale is not required, and there is no requirement for new notice
of sale to the [Troianis.]” See Order, 9/20/22. Thus, under Rule 3129.3, there
was no need for new notice or advertisement. The Troianis do not allege that
U.S. Bank failed to serve them with the September 20, 2022 order or that
they were unaware of the rescheduled date. Further, contrary to the Troianis’
contention, there is no requirement in Rule 3129.3(a) that a motion must be
filed to request a special order. Because U.S. Bank provided the requisite
notice for postponing the sheriff’s sale, as required by Rule 3129.3, the
Troianis were on notice of the sale on November 18, 2022. The court did not
abuse its discretion in denying the petition to set aside sheriff’s sale.
Order affirmed.
Date: 6/7/2024
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