J-A26029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEUTSCHE BANK NATIONAL TRUST                  IN THE SUPERIOR COURT OF
COMPANY, AS TRUSTEE OF AMERIQUEST                   PENNSYLVANIA
MORTGAGE SECURITIES, INC., ASSET
BACKED PASS THROUGH CERTIFICATES,
SERIES 2005-R8 UNDER THE POOLING
AND SERVICING AGREEMENT DATED AS
OF SEPTEMBER 1, 2005

                         Appellee

                    v.

ELMEDA A. & JOSEPH F. RODA A/K/A
FRANK RODA

                         Appellants                No. 201 MDA 2014


            Appeal from the Order Entered December 31, 2013
            In the Court of Common Pleas of Lancaster County
                    Civil Division at No(s): CI-06-08629


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                      FILED DECEMBER 17, 2014

      Appellants, Elmeda A. Roda and Joseph F. Roda, appeal from the

December 31, 2013 order denying their petition for leave to appeal nunc pro

tunc from the January 11, 2013 order granting summary judgment in favor

of Appellee, Deutsche Bank National Trust Company (Deutsche Bank). After

careful review, we affirm.

      We summarize the relevant procedural history of this case as follows.

Ameriquest Mortgage Company commenced the underlying action in this

case on August 31, 2006, when it issued a writ of summons against
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Appellants, regarding a mortgage on a property Appellants owned as tenants

in common. A complaint was filed on February 18, 2010, seeking to quiet

title to the property and to reform the mortgage to add Appellant Elmeda

Roda as a mortgagor and include the aliases of Appellant Joseph F. Roda.

Appellants filed an answer and new matter on March 10, 2010. On March

30, 2010, Deutsche Bank was substituted as the named plaintiff. Deutsche

Bank replied to the new matter raised by Appellants on April 28, 2010 and

thereafter, began seeking discovery from Appellants.

       On September 10, 2010, Deutsche Bank filed a motion to compel

Appellants to answer discovery.           The trial court granted the motion and

directed Appellants to provide full and complete discovery within ten days of

the order.    Trial Court Order, 9/10/10, at 1-2.         Appellants did not comply

with the court order. On October 15, 2010, the trial court granted Deutsche

Bank’s motion for sanctions and precluded Appellants from introducing

adverse evidence against Deutsche Bank at trial.                 Trial Court Order,

10/15/10, at 1-2. Subsequently, on December 1, 2010, Deutsche Bank filed

a motion for summary judgment.                 On February 1, 2011, the trial court

ordered Appellants to respond to the summary judgment motion within

twenty days.1       On February 21, 2011, Appellant Joseph F. Roda filed a

____________________________________________


1
   Pennsylvania Rule of Civil Procedure 1035 governs motions for summary
judgment. Pursuant to Pa.R.C.P. 1035.3(a), the adverse party is required to
file a response to a motion for summary judgment within thirty days of
(Footnote Continued Next Page)


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petition for bankruptcy under Chapter 13 of the United States Bankruptcy

Code, which stayed the proceedings. Ultimately, on July 25, 2011, the case

was remanded back to the trial court.

      On August 15, 2011, Appellants filed a motion to vacate and/or modify

the sanctions order of October 15, 2010, which Deutsche Bank opposed. No

response was filed to the December 1, 2010 motion for summary judgment.

Thereafter, the court denied the August 15, 2011 motion without prejudice.

See Trial Court Order, 8/18/11. On September 15, 2011, Appellants filed

another motion to vacate/modify the sanctions, which again was opposed by

Deutsche Bank. On December 7, 2012, Deutsche Bank filed a praecipe for

assignment requesting a determination on the motion for summary

judgment filed on December 1, 2010. The trial court granted the summary

judgment motion in favor of Deutsche Bank on January 11, 2013.

      On September 30, 2013, Appellants filed a petition to appeal, nunc pro

tunc, the January 11, 2013 order granting summary judgment.           In their

petition, Appellants averred, “[n]either [Appellants] nor counsel of record for

[Appellants] ever received a copy of the [o]rder and were unaware of the

existence of the January 11, 2013 [o]rder until Tuesday, September 24,

2013.” Appellants’ Petition, 9/30/2013, at 1, ¶ 5.     On October 21, 2013,

                       _______________________
(Footnote Continued)

service. Failure to file a response may result in the trial court granting the
motion. See Pa.R.C.P. 1035.3(d).




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Deutsche Bank filed an answer to Appellants’ petition to appeal nunc pro

tunc. The trial court denied Appellants’ petition on December 31, 2013. On

January 29, 2014, Appellants filed the instant timely appeal.2

       On appeal, Appellants raise the following issues for our review.

              A. Whether the lower court erred as a matter of law
              and/or abused its discretion by failing to grant the
              [Appellants]’ petition for leave to appeal nunc pro
              tunc?

              B. Whether the lower court erred as a matter of law
              and/or abused its discretion by failing to grant the
              [Appellants]’ motion to vacate and/or modify
              sanctions order of October 15, 2010?

              C. Whether the lower court erred as a matter of law
              and/or abused its discretion by granting [Deutsche
              Bank]’s motion for summary judgment?

Appellants’ Brief at 10.

       We begin by noting this Court’s review over a denial of a petition for

nunc pro tunc relief is one of deference.        See Vietri ex rel. Vietri v.

Delaware Valley High School, 63 A.3d 1281, 1284 (Pa. Super. 2013).

              The denial of an appeal nunc pro tunc is within the
              discretion of the trial court, and we will only reverse
              for an abuse of that discretion. In addition to the
              occurrence of fraud or breakdown of the court’s
              operations, nunc pro tunc relief may also be granted
              where the appellant demonstrates that (1) [his]
              notice of appeal was filed late as a result of
              nonnegligent circumstances, either as they relate to
              the appellant or the appellant’s counsel; (2) [he]
____________________________________________


2
  Appellants and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925.



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             filed the notice of appeal shortly after the expiration
             date; and the appellee was not prejudiced by the
             delay.

Id., quoting Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa.

Super. 2004) (internal citations and quotation marks omitted). “An abuse of

discretion occurs when a trial court, in reaching its conclusions, overrides or

misapplies the law, or exercises judgment which is manifestly unreasonable,

or the result of partiality, prejudice, or ill will.” Id. (citation omitted).

      Instantly, we conclude the trial court did not abuse its discretion in

denying Appellants’ petition for leave to appeal nunc pro tunc. Upon receipt

of Appellants’ petition, the trial court issued a rule to show cause order

pursuant to Pennsylvania Rule of Civil Procedure 206.              See Trial Court

Order, 10/1/13. The rule provides, in pertinent part, as follows.

             Rule 206.7 Procedure After Issuance of Rule to
             Show Cause

             (a) If an answer is not filed, all averments of fact in
             the petition may be deemed admitted for the
             purposes of this subdivision and the court shall enter
             an appropriate order.

             (b) If an answer is filed raising no disputed issues of
             material fact, the court on request of the petitioner
             shall decide the petition on the petition and answer.

             (c) If an answer is filed raising disputed issues of
             material fact, the petitioner may take depositions on
             those issues, or such other discovery as the court
             allows, within the time set forth in the order of the
             court. If the petitioner does not do so, the
             petition shall be decided on petition and
             answer and all averments of fact responsive to
             the petition and properly pleaded in the answer

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           shall be deemed admitted for the purpose of
           this subdivision.

           (d) The respondent may take depositions, or such
           other discovery as the court allows.

Pa.R.C.P. 206.7 (emphasis added).

     In Appellants’ petition, they averred “[n]either [Appellant] nor counsel

of record for [Appellants] ever received a copy of the [o]rder [granting

summary judgment] and were unaware of the existence of the January 11,

2013 [o]rder until Tuesday, September 24, 2013.”        Appellants’ Petition,

9/30/13, at ¶ 5. They further averred they never had notice of the praecipe

to assign the motion for summary judgment filed by Deutsche Bank because

of an error in the mailing address, and the January 11, 2013 order was the

result of the praecipe of which they had no notice.    See id. at ¶ 10-14.

Appellants advanced the argument that these facts provide evidence of a

breakdown of the court’s operations such that an appeal nunc pro tunc

should be permitted. Id. at ¶ 16.

     In its response, Deutsche Bank raised several disputed issues of

material fact. Specifically, Deutsche Bank averred the order was recorded

on February 4, 2013 against Appellants’ property with the Lancaster County

Recorder of Deeds Office.    See Answer to Petition, 10/21/13, at ¶ 5.




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Deutsche Bank’s petition further unambiguously addressed Appellants’

actions underlying the motion for summary judgment.3

              The motion for [s]ummary [j]udgment was filed on
              December 1, 2010.       The [Appellants], however,
              failed to file a response within the thirty (30) day
              deadline. See Pa.R.C.P. 1035(a). As a result, the
              [trial court] issued a [r]ule to [s]how [c]ause on
              January 31, 2011 … requiring [Appellants] to
              respond to the [m]otion for [s]ummary [j]udgment
              within twenty (20) days. … While [Appellants] failed
              to respond to the [m]otion for [s]ummary
              [j]udgment in accordance with the Rules of Civil
              Procedure and the [trial court’s order], [Appellants]
              and their counsel knew that the [m]otion for
              [s]ummary [j]udgment was ripe for disposition and
              that an [order] would be forthcoming on the
              unopposed [motion].

Id. (footnote omitted).         Deutsche Bank also disputed that counsel for

Appellants never received the praecipe for assignment. Id. at ¶ 10.

              [I]t is believed that the Praecipe for Assignment was
              received by [Appellants]’ counsel.          While the
              Certificate of Service includes a typographical error
              in the zip code of [Appellants]’ counsel, [counsel for
              Deutsche Bank] was never notified by the U.S. Postal
              Service that the Praecipe for Assignment (i) could
              not be delivered as addressed, or (ii) contained an
              invalid address.

Id.; see also id. at ¶¶ 14, 15.                Finally, Deutsche Bank denied any

breakdown occurred in the court’s operations and pleaded the lack of notice

____________________________________________


3
  We note that Appellants’ petition to appeal nunc pro tunc does not allege
lack of notice of the original motion for summary judgment nor of the
subsequent trial court order to respond within twenty days. See Appellants’
Petition, 9/30/13.



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was the result of Appellants’ counsel’s failure to review the court’s dockets

while he knew the unopposed motion for summary judgment was ripe for

disposition. See id. at ¶ 16.

      The trial court’s rule to show cause order specifically notified the

parties that the petition would be decided in accordance with Pa.R.C.P.

206.7. See Trial Court Order, 10/1/13. It also provided that, “[d]iscovery

shall be completed within forty-five (45) days of service of the Answer.” Id.

Appellants did not engage in discovery following the filing of Deutsche

Bank’s answer to their petition to appeal nunc pro tunc. Therefore, because

Appellants failed to engage in discovery when issues of material fact were

raised by Deutsche Bank, all averments of fact advanced in Deutsche Bank’s

answer that were responsive to Appellants’ petition to appeal nunc pro tunc

were deemed admitted by Appellants. See Pa.R.C.P. 206.7(d). Specifically,

Deutsche Bank contended that Appellants had notice of the order prior to

September 24, 2013, there was no breakdown in the court’s operations, and

the failure to timely appeal was due to the negligence of Appellants’ counsel.

See Answer to Petition, 10/21/13, at ¶¶ 5, 10, 14-16. Consequently,

Appellants failed to demonstrate that they are entitled to their requested

relief, and we conclude the trial court did not abuse its discretion or

misapply the law when it denied Appellants’ petition for leave to appeal nunc

pro tunc. See Vietri ex rel. Vietri, supra.




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     Appellants’ second and third issues challenge the trial court’s failure to

grant their motion to vacate/modify the order for sanctions of October 15,

2010 and the underlying grant of summary judgment. Appellants’ Brief at

28, 32. We conclude these issues are not properly before this Court.

     It is well-settled that this “Court may reach the merits of an appeal

taken from (a) a final order or an order certified as a final order; (2) an

interlocutory order [appealable] as of right; (3) an interlocutory order

[appealable] by permission; or (4) a collateral order.”    In re Bridgeport

Fire Litigation, 51 A.3d 224, 229 (Pa. Super. 2012) (citations and

quotation marks omitted).

      In the instant case, the trial court never ruled on Appellants’ second

motion to vacate/modify the October 15, 2010 order, therefore, this issue is

not subject to review.    Further, this appeal lies from the final order of

December 31, 2013, denying Appellants’ petition to appeal the summary

judgment order nunc pro tunc. Because we have concluded the trial court

did not commit an abuse of discretion in denying Appellants’ petition, the

merits of the summary judgment order are not before this Court.

     Accordingly, the December 31 2013 order denying Appellants’ petition

to appeal nunc pro tunc is affirmed.




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     Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014




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