J-S18008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOHN FLAGLER                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANCIS TEMPLIN                            :
                                               :
                       Appellant               :   No. 832 MDA 2019


                 Appeal from the Orders Entered April 18, 2019,
                 in the Court of Common Pleas of Berks County,
                        Civil Division at No(s): 18 19731.


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 14, 2020

        Francis Templin appeals pro se from the orders denying his: 1) petition

for injunctive relief and stay of writ of execution and sheriff’s sale 1 and/or

distribution of personal property; and 2) motion to appoint counsel. Upon

review, we vacate in part and remand and affirm in part.

        Initially, we note that disposition of this case requires discussion of

previous litigation between the parties. On August 27, 2018, a Northampton

County magisterial district judge (“MDJ”) awarded John Flagler a judgment

against Templin in the amount of $12,203.15. Templin filed a notice of appeal

from that judgment with the Northampton County Court of Common Pleas
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Although Templin claims that he is appealing an order regarding his motion
to set aside sheriff’s sale, there is no separate order pertaining to this motion.
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(Appeal De Novo I). The prothonotary, however, rejected Templin’s notice of

appeal, which it received on September 28, 2018, two days after the filing

deadline, as untimely. On January 30, 2019, Templin filed another notice of

appeal from the MDJ judgment and an emergency petition for allowance to file

the appeal (Appeal De Novo II).2 On May 13, 2019, upon Flagler’s motion,

the Northampton trial court struck Templin’s notice of appeal because it was

filed one hundred fifty (150) days after the MDJ’s judgment. It also denied

Templin’s emergency motion to strike district court judgment and dissolve the

writ of execution. Templin appealed these two orders to this Court. No stay

was issued pending his appeal.

        In that appeal, Templin claimed that he timely filed his notice of appeal

(Appeal De Novo I) with the trial court and that it should have been accepted

even though it was received two days after the September 26, 2018 deadline.

In reviewing his claim, this Court noted that the prisoner mail box rule applied

to Templin as an incarcerated litigant. Consequently, Templin’s original notice

of appeal (Appeal De Novo I) should have been considered filed on September

20, 2018, when he placed the it in the prison mailbox, which was within the

thirty-day (30) appeal period.            Flagler v. Templin, 1631 EDA 2019,

unpublished memorandum, at 6 (March 30, 2020) (Templin I). However,

because the Northampton County trial court did not rule on Templin’s

emergency petition for allowance to file notice of appeal, this Court vacated

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2   The court never ruled on this motion.

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the two orders which Templin had appealed (Templin I) and remanded the

case so that the trial court could rule on Templin’s emergency petition.    Id.

at 7.    Effectively, we reinstated Templin’s notice of appeal from the MDJ

judgment. However, as we will discuss herein, we are unable to determine

whether the appeal has been allowed and perfected.

        Meanwhile, on December 11, 2018, several months after Templin

attempted to file his original appeal de novo, Flagler had transferred the MDJ

judgment to Berks County; the prothonotary notified Templin that the

judgment had been filed against him. On December 19, 2018, Flagler filed a

praecipe for writ of execution directing the Berks County Sheriff to execute

against Templin and to index the writ against him; the prothonotary issued a

writ of execution; no property was identified.3 Notice was served on Templin

on January 23, 2019. It is unclear from the record when Templin’s property

was executed upon, what property was levied, and when and if it was sold at

sheriff’s sale.4

        On February 15, 2019, Flagler filed another praecipe for writ of

execution; the prothonotary issued the writ and described the property to be

____________________________________________


3 Although not part of the record, we observe that this writ of execution,
attached to Templin’s appellate brief, described the property to be levied upon
as the mobile home located at Lot #8, 6093 Old Route 22, Bernville, PA
19506.

4 Although not part of the record, we observe that a form from the Berks
County Sheriff’s Office, attached to Templin’s appellate brief, indicates that a
Forest River camper and all of its contents was levied on January 18, 2019,
and was to be sold at sheriff’s sale on February 7, 2019.

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levied upon as Templin’s shed, contents of the shed and the boat located at

Lot #8, 6093 Old Route 22, Bernville, Pennsylvania. It is unclear from the

record when Templin received notice of this writ. It is also unclear from the

record when Templin’s property was executed upon, what property was levied,

and when and if it was sold at sheriff’s sale.

       On February 21, 2019, Templin filed an emergency petition for

injunctive relief and stay of writ of execution and sheriff’s sale and/or

distribution of property claiming that the MDJ refused to continue his case

when he was incarcerated. He also claimed that there were defects in the

execution upon his property. On March 21, 2019, he filed a motion to appoint

counsel.5 Pending disposition of this emergency petition, the trial court stayed

any sale or distribution of Templin’s property. Following argument on April

15, 2019, the trial court denied Templin’s petition for injunctive relief and stay

of execution and his motion for appointment of counsel (orders filed April 18,

2019).

       Templin filed a timely notice of appeal to this Court (Templin II).

Templin and the trial court complied with Pennsylvania Rule of Civil Procedure

1925.6
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5Templin filed several other motions which were repetitive of his initial
motion.

6We note that, although Templin filed a timely response to the trial court’s
Pa.R.A.P. 1925(b) order, it does not necessarily equate with issue



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       In this appeal, Templin raises eight issues (8) issues for our review.

Essentially, these issues relate to the propriety of the MDJ proceedings, the

sufficiency of the writ of execution, the sufficiency of notice of the writ of

execution to Templin, the sufficiency of the notice of the sheriff’s sale to

Templin, and the validity of the underlying judgment. However, to resolve

this appeal, we rephrase the pertinent issues as follows:


       1. Whether the MDJ money judgment, which was the basis for the
          writs of execution and subsequent sheriff’s sale of Templin’s
          property, is a valid judgment?

       2. Whether the sheriff’s sale of Templin’s property should be set
          aside?

       3. Whether the trial court abused its discretion in denying
          Templin’s request for appointment of counsel?

See Templin’s Brief at 6-8.

       Templin claims that the underlying judgment is void. Specifically, he

argues, inter alia, that the “trial and judgment” were on appeal in 1631 EDA

2019, (Templin I) which, according to him, would result in “a striking of the

district court judgment.” Templin’s Brief at 22.


____________________________________________


preservation. Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super.
2008). The Rule 1925(b) statement “must be sufficiently ‘concise’ and
‘coherent’ such that the trial court judge may be able to identify the issues to
be raise on appeal. . . .” Id. Templin’s 1925(b) statement is thirty-four (34)
handwritten pages, which is essentially/mainly a narrative of this case without
any discernible issues except one general statement relating to defects in writ,
levy and service and defects in the sheriffs sale. In such circumstance, we
could find waiver. See Jiricko, 947 A.2d at 213. However, because of the
unique procedural posture of this case, we decline to do so.

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       The trial court, in considering Templin’s petition for injunctive relief and

stay of execution/distribution, concluded that, because Templin did not file a

timely de novo appeal, Flagler had a valid judgment and appropriately

proceeded to execute upon it. Trial Court Opinion, 7/19/19, at 3. At the time

Templin filed his brief in this appeal, this court had not yet decided Templin

I.    In light of this Court’s decision in Templin I reinstating Templin’s notice

of appeal from the MDJ judgment and remand, we are compelled to disagree

with the trial court.

       Following imposition of a money judgment by a magisterial district

judge, a party may appeal the matter to the court of common pleas within

thirty (30) days of the judgment. Pa.R.C.P.D.J. 1002A. When a notice of

appeal is filed, a supersedeas is automatically imposed. Pa.R.C.P.D.J. 1008.

However, this does not forever sustain the judgment obtained at the

magistrate level. Independent Tech. Servs. v. Campo’s Exp., Inc., 812

A.2d 1238 (Pa. Super. 2002). Once the appeal is perfected,7 the proceeding

before the court of common pleas is de novo, and the judgment entered at

the    magistrate     level   is   extinguished/nullified.   Pa.R.C.P.D.J.   1007;

Independent Tech. Servs., 812 A.2d at 1240.

____________________________________________


7 In order to perfect such appeal, the appeal must be timely filed. Otherwise,
the prothonotary is required to reject the appeal. Pa.R.C.P.D.J. 1002A. The
plaintiff at the magistrate level then is required to file a complaint. Once this
is completed, the case proceeds as if it had been initially filed with the court
of common pleas, since the appeal is de novo.



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      Here, Templin initially was unable to pursue a de novo appeal before the

Northampton County Court of Common Pleas because, twice, it concluded that

Templin’s notices of appeal were untimely. Given this, Flagler appropriately

proceeded to enforce his judgment against Templin, as the trial court

concluded. However, following Templin’s appeal to this Court in Templin I, we

reinstated his appeal de novo and directed the trial court to rule on his

emergency petition to file notice of appeal. The trial court’s ruling on that

petition and its decision whether to allow Templin’s appeal to go forward

affects the status of the magistrate’s money judgment against Templin, and

thus, the validity of the execution on it and the resulting sale of Templin’s

property, which is at issue in this appeal.

      If Templin’s appeal de novo is allowed and perfected, then the

magistrate’s money judgment will be nullified. Such a decision would render

the Berks County sheriff’s execution on Templin’s property and the sale of it

improper as no judgment existed upon which to execute.           See Harris v.

Harris, 239 A.2d 783, 785 (Pa. Super. 1968) (“where a void judgment is the

basis for an execution sale,” the sale itself is void); Roberts v. Gibson, 251

A.2d 799, 802 (Pa. Super. 1969) (“If the judgment is void, the sheriff’s sale

resulting from the execution issued on the judgment would be a nullity[.]”).

Consequently, we vacate the Berks County trial court’s order denying

Templin’s request for injunctive relief and stay of sale/distribution.

      Additionally, because we are unable to determine the status of Templin’s

appeal de novo and thus, the status of the MDJ judgment from the record, we

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remand this matter to the trial court to determine the status of Templin’s de

novo appeal before the Northampton County Court of Common Pleas. In the

event that the appeal has been perfected, the trial court shall dissolve the

writs of execution against Templin and set aside the sheriff’s sale of Templin’s

property. In the event that the appeal is not perfected, the court may enter

such orders it deems necessary.

      As a final matter, Templin claims that the trial court erred in refusing to

appoint counsel for him. Specifically, he claims that because of his health

conditions and his incarceration he is unable to effectively adequately handle

his case. Templin’s Brief at 48. As Templin acknowledges in his brief, “the

law is well settled that there is no right to counsel in civil cases.” Rich v.

Acrivos, 815 A.2d 1106, 1108 (Pa. Super. 2003). We therefore conclude that

the trial court did not error in refusing to appoint counsel for Templin.

      Order denying the petition for injunctive relief and stay of writ of

execution and sheriff’s sale and/or distribution of personal property vacated

and remanded for further proceedings.       Order relating to appointment of

counsel affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/14/2020


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