J-A24005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESB-B/Q HOLDINGS, LLC                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALFONSO LOPEZ

                            Appellant                   No. 273 EDA 2014


               Appeal from the Order Entered November 30, 2013
              In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 1736 August Term, 2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED OCTOBER 07, 2014

       Appellant, Alfonso Lopez, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his motion to set aside
               1
                   We affirm.

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

____________________________________________


1



circumstances. See
                                                                   eed to
real property, the court may, upon proper cause shown, set aside the sale
and order a resale or enter any other order which may be just and proper



_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-A24005-14


     Appellant raises five issues for our review:


        MOTION TO SET ASIDE SHERIFF SALE EVEN THOUGH
        [APPELLANT] WAS GIVEN NO NOTICE OF THE AUGUST 6,
        2013 SALE AND APPELLEE GAVE NO NOTICE OF THE SALE
        TO [APPELLANT]?



        APPELLEE   PRESENTED   NO  EVIDENCE  THAT   ANY
        NOTIFICATION OF THE AUGUST 6, 2013 SHERIFF SALE
        AND THE SEVERAL PREVIOUS POSTPONED SALES WERE
        REASONABLY CALCULATED TO NOTIFY [APPELLANT] OF
        THE SCHEDULED SHERIFF SALES?

        IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012
        ORDERS    DISPENSING     WITH   THE  NEW    NOTICE
        REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE
        SHERIFF SALES, PURSUANT TO PA.R.C.P. 3129.3(a), DID
        THE TRIAL COURT ERR BY FAILING TO CONDUCT AN
        EVIDENTIARY HEARING TO CONSIDER WHAT NOTICE, IF
        ANY, APPELLEE GAVE OF THE AUGUST 6, 2013 SHERIFF
        SALE AND THE SEVERAL PREVIOUS POSTPONED SALES
        THAT PRECEDED IT?

        IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012
        ORDERS    DISPENSING     WITH   THE  NEW    NOTICE
        REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE
        SHERIFF SALES, PURSUANT TO PA.R.C.P. 3129.3(a), DID
        THE TRIAL COURT ERR BY FAILING TO CONDUCT AN
        EVIDENTIARY HEARING TO DETERMINE WHETHER THE

        CONSTITUTIONAL DUE PROCESS RIGHTS PURSUANT TO
        THE 5TH AND 14TH AMENDMENTS?

        IN SPITE OF THE JULY 9, 2012 AND NOVEMBER 30, 2012
        ORDERS    DISPENSING     WITH   THE  NEW   NOTICE
        REQUIREMENTS OF PA.R.C.P. 3129.2 OF ANY FUTURE
        SHERIFF SALES PURSUANT TO PA.R.C.P. 3129.3(a), DID
        THE COURT ERR BY FAILING TO CONDUCT AN
        EVIDENTIARY HEARING TO DETERMINE WHETHER
                                                2013 SALE,
        IF ANY, AND THE SEVERAL PREVIOUS POSTPONED SALES



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J-A24005-14


          WERE REASONABLY CALCULATED TO NOTIFY APPELLANT
          OF THE SCHEDULED SHERIFF SALES?

                         -4).2



to realize out of the land, the debt, interest, and costs which are due, or

                                                 GMAC Mortg. Corp. of PA v.

Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007) (quoting Kaib v. Smith,

684 A.2d 630, 632 (Pa.Super. 1996)).


          equitable principles and is addressed to the sound
          discretion of the hearing court. The burden of proving
          circumstances warranti
                                                           When


          discretionary one, and it will not be reversed on appeal
          unless there is a clear abuse of that discretion.

Buchanan, supra at 1167 (internal citations omitted).

       On appeal, Appellant emphasizes that the parties postponed the

                                                                     -month

period.    Appellant acknowledges Pa.R.C.P. 3129.3(a), providing that new

notice of a


____________________________________________


2

argument section of his brief. Specifically, the argument section is divided
into two parts, which overlap with the issues included in the statement of
questions presented. Consequently, we address the issues set forth in the
argument section of the brief.



                                           -3-
J-A24005-14


additional notice. Nevertheless, Appellant contends a property owner is still

entitled to due process before his

sale.    Appellant asserts he did not receive due process here, because

Appellee and the court did not provide notice of the final sale date.

Excluding two trial court orders entered in July and November 2012,

Appell

sale dates leading up to the August 6, 2013 sale date were not reasonably



the trial court abused its discretion in denying his motion to set aside



        Rule   3129.3   governs   the    issuance   of   notice    following   the

postponement of a sale:

          Rule 3129.3. Postponement of Sale.             New Notice.
               Failure of Plaintiff to Attend Sale

             (a) Except as provided by subdivision (b) or special
          order of court, new notice shall be given as provided by
          Rule 3129.2 if a sale of real property is stayed, continued,
          postponed or adjourned.

Pa.R.C.P. 3129.3(a) (emphasis added).

                            -recognized notions of due process, Pennsylvania

has enacted a series of procedural rules relating to the extent of proper

                                                                  In re Porovne,

436 B.R. 791, 801 (Bkrtcy.W.D.Pa. January 26, 2010).

          Generally, Pa.R.C.P. 3129.3 provides that if a pending sale
          of real property is stayed, continued, postponed or

                                        -4-
J-A24005-14


        adjourned for any reason, then typically new notice is
        required, but there are two exceptions.

                                 *    *     *

        The second exception to the requirement of new notice is
        where a special order of court is issued dispensing with the
        requirement of additional notice. This exception gives the
        court discretion to allow postponement of the sale without
        new notice in appropriate cases.

Id. (internal citations and quotation marks omitted).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Ellen H.



opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed March 5, 2014, at 5-12) (finding:

orders entered July 9, 2012 and November 30, 2012 provided Appellant with

original notice of pending sale and dispensed with requirement for new

notice of future sale dates; Appellant made no credible allegation that



                                           s application for financing and filing




appeared to be aware of subsequent sale dates; orders entered July 9, 2012



3129.3(a) and provided exception to requirement of new notice following




                                     -5-
J-A24005-14


advertising of the sale of the Property is required and any further

postponements can be done by announcement or by sending a letter, fax or



due process; it was entirely reasonable to expect that Appellant would

atten

petitions necessitated postponements). Accordingly, we affirm on the basis



        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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