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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BENEFICIAL CONSUMER DISCOUNT           :     IN THE SUPERIOR COURT OF
COMPANY D/B/A BENEFICIAL               :           PENNSYLVANIA
MORTGAGE COMPANY OF                    :
PENNSYLVANIA                           :
                                       :
                     v.                :
                                       :
PAMELA A. VUKMAN,                      :          No. 355 WDA 2014
                                       :
                          Appellant    :


             Appeal from the Order Entered February 19, 2014,
             in the Court of Common Pleas of Allegheny County
                     Civil Division at No. GD-06-024554


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 06, 2015

     Appellant, Pamela A. Vukman (“Vukman”), appeals from the order

granting appellee, Beneficial Consumer Discount Company’s (“Beneficial”),

motion to confirm a sheriff’s sale. Finding no error in the issues raised on

appeal, we affirm.

     On September 14, 2001, Beneficial extended a loan to Vukman to

purchase a house at 104 Dorf Drive in Pittsburgh, and the loan was secured

by a mortgage.       In December of 2005, Vukman defaulted on the loan.

Subsequently, Beneficial filed the requisite Act 6 and Act 91 pre-foreclosure
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notices.1 The Act 91 notice was defective because it failed to inform Vukman

of the option of a face-to-face meeting with Beneficial.        See 35 P.S.

§ 1680.403c(b)(1). After failed negotiations between the parties, Beneficial

filed a complaint in foreclosure on October 17, 2006.           After further

negotiations, on May 6, 2009, the parties entered a consent judgment. The

trial court memorialized the terms of that consent judgment in its opinion:

                 It is hereby ORDERED and DECREED that
           consent judgment is entered in favor of Plaintiff,
           Beneficial      Consumer     Discount     Company
           (“Beneficial”) in mortgage foreclosure and against
           Defendant, Pamela A. Vukman in the amount of
           $217,508.81 together with interest at the rate of
           $43.75 per diem for each day after May 6, 2009 and
           costs. It is further ORDERED and DECREED that
           Defendant Pamela A. Vukman’s (“Vukman”), New
           Matter and Counterclaim are hereby DISMISSED
           WITH PREJUDICE.

                 Beneficial agrees to NOT execute on the
           Judgment as long as Vukman mets [sic] the
           following requirements:

           ....

                 If any of the requirements are not met by the
           [sic] Vukman, Beneficial may immediately execute
           on the Judgment and proceed to Sheriffs Sale.

                If all of the above requirements are met by
           Vukman, Beneficial will vacate this judgment and
           bring Vukman’s loan current with a balance of
           $139,000.00 on July 19, 2010.

                Vukman agrees to Release and hold harmless
           any and all persons and business entities, including

1
  Loan Interest and Protection Law, 41 P.S. § 403 (Act 6), and Housing
Finance Agency Law, 35 P.S. §§ 1680.402c, 1680.403c (Act 91).


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             but not limited to Beneficial, Beneficial’s employees,
             agents and representatives, . . . from any and all
             claims set forth in Vukman’s New Matter and
             Counterclaim and from any and all claims she
             may have had or may have in the future
             resulting from the matters brought forth in the above
             referenced action.

                   This agreement has been on record in open
             court with all parties present on May 6, 2009 at the
             above-captioned docket [number].

Trial court opinion, 5/13/14 at 3 (emphasis added).

        Vukman subsequently defaulted again.     After pleadings were filed by

both parties, a sheriff’s sale went forward on August 2, 2010. On August 31,

2010, Vukman filed a motion to set aside the sheriff’s sale which argued that

the defective Act 91 notice deprived the trial court of subject matter

jurisdiction. On January 10, 2011, the trial court agreed with Vukman and

entered an order setting aside the sheriff’s sale and dismissing the complaint

in foreclosure.

        Beneficial appealed the decision, and while this court affirmed the

decision    on    January   30,   2012,   our   supreme   court   reversed    on

September 25, 2013. Beneficial Consumer Discount Co. v. Vukman, 37

A.3d 596 (Pa.Super. 2012), reversed, 77 A.3d 547 (Pa. 2013).                 The

supreme court found that while the Act 91 notice was indeed defective, it did

not deprive the trial court of subject matter jurisdiction, and remanded the

case.




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      On February 14, 2014, Beneficial moved to confirm the sheriff’s sale.

In response, Vukman argued that the trial court had to grant her relief under

Act 70 because of Beneficial’s defective Act 91 notice.2     On February 19,

2014, the court entered an order granting Beneficial’s motion to confirm the

sheriff’s sale.   The court found that Vukman had surrendered any Act 70

remedy by the consent judgment. This timely appeal followed.

      Although Vukman purports to frame three issues on appeal, she is

effectively raising two issues:

             1.    Did Vukman waive her Act 70 rights by the
                   consent judgment?

             2.    Is waiver of Act 70 rights barred by statute or
                   public policy?

We will address these issues in the order presented.

      Preliminarily, we note that the parties are in conflict as to what

standard we should review the issues on appeal.        Beneficial propounds an

abuse of discretion standard as appropriate to a trial court’s decision on a

motion to set aside a sheriff’s sale.   See Nationstar Mortgage, LLC v.

Lark, 73 A.3d 1265, 1267 (Pa.Super. 2013). Vukman, on the other hand,

asserts that because our review involves statutory interpretation, our

standard of review is de novo, and our scope of review plenary. See Egan




2
  Act 70 is the Homeowner Assistance Settlement Act, 35 P.S. §§ 1681.1 to
1681.7. Section 1681.5 of Act 70 enables the court to remedy violations of
the notice sections of Act 91.


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v. USI Mid-Atlantic, Inc., 92 A.3d 1, 4 (Pa.Super. 2014), appeal

granted, 108 A.3d 30 (Pa. 2015).

      We agree with Vukman. Although this appeal is taken from an order

confirming a sheriff’s sale, in the first issue we are called upon to interpret

the terms of a consent judgment. A consent judgment is a contract and is

construed like a contract. Laird v. Clearfield & Mahoning Railway Co.,

846 A.2d 118, 122 (Pa.Super. 2004), reversed on other grounds, 916

A.2d 1091 (Pa. 2007); see also Commonwealth ex rel. Fisher v. Phillip

Morris, Inc., 736 A.2d 693, 698 n.14 (Pa.Cmwlth. 1999), cert. denied,

Sklaroff v. Pennsylvania ex rel. Fisher, 531 U.S. 917 (2000). It is well

settled that where we are called upon to interpret a contract, our standard of

review is de novo and our scope of review is plenary.                Newman

Development Group of Pottstown, LLC v. Genuardi’s Family Market,

Inc., 98 A.3d 645, 653 (Pa.Super. 2014). As for the second issue, as noted

by Vukman, an issue involving statutory interpretation carries the identical

standard of review. We now turn to the issues.

      We first find that Vukman’s issues are moot because the consent

judgment effectively provided Vukman Act 70 relief.       Act 70 provides as

follows:

            The following provisions shall apply relating to the
            Homeowner’s     Emergency     Mortgage    Assistance
            Program:

            (1)   If there has been a failure to comply with
                  the notice requirements of sections


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                 402-C and 403-C of [Act 91], known as
                 the Housing Finance Agency Law, and
                 such failure has been properly raised in a
                 legal action, including an action in
                 foreclosure, for money due under the
                 mortgage      obligation  or    to   take
                 possession of the mortgagor’s security,
                 the court may dismiss the action without
                 prejudice, order the service of a
                 corrected notice during the action,
                 impose a stay on any action or impose
                 other appropriate remedies in the action
                 to address the interests, if any, of the
                 mortgagor who has been prejudiced
                 thereby.

35 P.S. § 1681.5(1).

     The clear purpose of this section is to provide the trial court with

remedial options to forestall a foreclosure action until the mortgagor has

been provided with accurate Act 91 notice. In this regard, the court may:

1) dismiss the foreclosure action outright, but without prejudice to re-file

and provide proper Act 91 notice; 2) order corrected Act 91 notice;

3) impose a stay; or 4) impose any other appropriate remedy to address the

interest of the mortgagor.

     We find that the consent judgment effectively provided Act 70 relief.

At the time the consent judgment was entered, Vukman not only was aware

that she had the right to a face-to-face meeting with Beneficial, she had

actually had that meeting because it resulted in the consent judgment.

Furthermore, as a result of the consent judgment, not only was foreclosure

forestalled, it was prevented altogether so long as Vukman complied with



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the payment obligations provided in the consent judgment. Thus, although

Act 70 had not been enacted at the time of the consent judgment, the

consent judgment effectively provided the relief envisioned by Act 70.

     Moreover, even if the consent judgment did not serve as Act 70 relief,

Vukman is not entitled to such relief now.      In her first issue, Vukman

contends that in the consent judgment she waived only those claims set

forth in her New Matter and Counterclaim, but not any of her defenses, such

as Act 70. We disagree. The language of the consent decree clearly and

unambiguously included a waiver of far more than just the claims Vukman

set forth in her New Matter and Counterclaim: “Vukman agrees to Release

and hold harmless any and all persons and business entities . . . from any

and all claims set forth in Vukman’s New Matter and Counterclaim and from

any and all claims she may have had or may have in the future.” If

we interpreted this language as limiting the waiver to just the claims

contained in the New Matter and Counterclaim, the highlighted language

would be rendered mere surplusage.

           When a written contract is clear and unequivocal, its
           meaning must be determined by its contents alone.
           In construing a contract, we must determine the
           intent of the parties and give effect to all of the
           provisions therein.   An interpretation will not be
           given to one part of the contract which will annul
           another part of it.




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Gaffer Insurance Co., Ltd. v. Discover Reinsurance Co., 936 A.2d 1109,

1113 (Pa.Super. 2007), quoting Capek v. Devito, 767 A.2d 1047, 1050 (Pa.

2001) (citations and quotation marks omitted).

     Vukman’s    proposed    interpretation   does   not   give   effect   to   the

highlighted language but instead annuls it.      Clearly, Vukman intended to

waive any and all claims both past and present.        This would include any

claims under Act 70. We also reject Vukman’s argument that she could not

waive an Act 70 claim in the consent judgment because Act 70 had not been

enacted at the time.     The language of the consent judgment waives all

claims Vukman may have in the future. Such a waiver clearly anticipates all

future remedies whether known or unknown. There is no merit here.

     In her second issue, Vukman asserts that Act 70 cannot be waived

either as a matter of statute or public policy. Vukman’s statutory argument

is predicated upon the no-waiver provision of Act 6:

           Notwithstanding any other law, the provisions of this
           act may not be waived by any oral or written
           agreement executed by any person.

41 P.S. § 408.   Vukman then states, “[t]herefore, statutory rights under

Act 70 cannot be waived because Act 6 was incorporated into Act 91 and

Act 91 was amended by Act 70.” (Vukman brief at 8.)

     Neither Act 70 nor Act 91 has a no-waiver provision.            Act 91 did

incorporate the notice information required under Act 6.           See 35 P.S.

§ 1680.403c(b)(1).     However, Act 91 did not incorporate the no-waiver



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provision.   Moreover, both Act 70 and the notice requirements of Act 91

were enacted after the no-waiver provision of Act 6 was enacted. Obviously,

the Legislature was aware that it had barred waiver under Act 6 and could

also have done so under Act 70 and Act 91, but chose not to do so.

Therefore, we find no statutory bar to waiver of Act 70.

        As for public policy prohibiting waiver, Vukman merely quotes a nearly

80-year-old case stating that the then existing usury statute was part of the

public policy of the state and could not be waived by the debtor. While we

agree that usury is against the public policy of this state, we are not

prepared to rule that this public policy extends to the waiver of Act 70 under

the circumstances of this case.    We again note that the Legislature could

have barred waiver of Act 70 provisions but chose not to do so. Thus, we

find no public policy barring Vukman’s waiver of Act 70 in the context of this

case.

        Accordingly, having found no merit to the issues on appeal, we will

affirm the order below.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2015



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