J-A19029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VENTURES TRUST 2013 IHR BY MCM          :   IN THE SUPERIOR COURT OF
CAPITAL PARTNERS, LLC,                  :        PENNSYLVANIA
                                        :
                                        :
            v.                          :
                                        :
                                        :
JAMIE BARBONE, RICHARD A. J.            :
TRIMINGHAM, DANIELLE                    :   No. 474 EDA 2017
FRIDENBERGER, AND UNKNOWN               :
HEIRS OF RICHARD A.J.                   :
TRIMINGHAM,                             :
                                        :
                                        :
APPEAL OF: JAMIE BARBONE                :

              Appeal from the Order Entered December 28, 2016
                In the Court of Common Pleas of Pike County
                    Civil Division at No(s): 679-2013-Civil


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                      FILED SEPTEMBER 08, 2017

     Appellant, Jamie Barbone, appeals from the December 28, 2016 Order

denying his Motion to Set Aside Sheriff’s Sale.     After careful review, we

conclude that there was no valid judgment on which to execute and that the

sale was, therefore, invalid. Accordingly, we reverse the December 28, 2016

Order.

     The parties are familiar with the procedural history of the instant case,

however, we briefly summarize the relevant facts as follows. On April 29,

2013, JPMC Specialty Mortgage LLC filed a mortgage foreclosure action

against Appellant related to a property located at 114 Boulder Road, Milford,
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Pennsylvania. JPMC Specialty Mortgage LLC subsequently filed a Pa.R.C.P.

2352(a) Substitution of Parties, substituting Appellee, Ventures Trust 2013

IHR by MCM Capital Partners, LLC, as Plaintiff.

      The case eventually went to trial, where the trial court entered a

verdict in favor of Appellee on August 14, 2015.       On August 24, 2015,

Appellant filed a Post-Trial Motion.   While that Motion was still pending

before the trial court, Appellee prematurely filed a Praecipe for Entry of

Judgment on August 28, 2015. This Praecipe, however, did not result in the

entry of a judgment because the trial court had not yet ruled on the

Appellant’s Post Trial Motion.

      On September 15, 2015, the trial court denied Appellant’s Post-Trial

Motion.   Although it would now be appropriate to convert the verdict to a

judgment, neither party filed a Praecipe for Entry of Judgment. Thus, only a

valid verdict existed.

      Notwithstanding the fact that only a verdict existed, Appellant twice

attempted to appeal from the verdict.        On both occasions, this Court

quashed the appeals, finding that “[n]otwithstanding the trial court’s

conclusion to the contrary, a valid [J]udgment [had] not been entered on

the docket.” Superior Court Order, filed 11/28/16. See also Superior Court

Order, filed 11/18/16; Superior Court Order, filed 1/19/16.

      Neither Appellant, Appellee, the Prothonotary, nor the trial court took

any action to enter a valid judgment on the record in the instant case.


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       On October 19, 2016, the trial court, relying upon the premature and

invalid August 28, 2015 “judgment” from August 28, 2015, permitted the

Appellant’s property to proceed to a Sheriff’s Sale on October 19, 2016. The

Appellee was the sole and successful bidder.

       Appellant filed a timely1 Motion to Set Aside Sheriff’s Sale, arguing

that the Sale was improper where there was no valid judgment on the

record. The trial court denied the Motion, finding that, although this Court

had twice found no valid entry of judgment, it believed “that a valid

judgment does and has existed in this case.”            Trial Court Opinion, filed

3/7/17, at 6.

       Appellant timely appealed.         Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

       On appeal, Appellant raises three issues for our review:

       1. Is the judgment entered on the Docket on August 28, 2015[,]
       valid?

       2. Did the [t]rial [c]ourt abuse its discretion by failing to set
       aside Sheriff Sale executing on an invalid judgment?

       3. Did [Appellee] meet its burden to prove it was the holder of
       the Note and hence entitled to judgment of mortgage
       foreclosure?

Appellant’s Brief at 2.
____________________________________________


1
  Taken together, Pa.R.C.P. 3132 and Pa.R.C.P. 3135(a) make clear a party
must raise a challenge to a sheriff's sale within a period of time after the
sale, but before the deed is delivered.       Appellant complied with this
requirement.



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      We note the following standards guiding our review of this appeal.

      Pursuant to Rule 3132 of the Pennsylvania Rules of Civil
      Procedure, a sheriff's sale may be set aside upon petition of an
      interested party “upon proper cause shown” and where the trial
      court deems it “just and proper under the circumstances.”
      Pa.R.C.P. 3132.       The burden of proving circumstances
      warranting the exercise of the court's equitable powers is on the
      petitioner.  Equitable considerations govern the trial court's
      decision to set aside a sheriff's sale, and this Court will not
      reverse the trial court's decision absent an abuse of discretion.
      An abuse of discretion occurs where, for example, the trial court
      misapplies the law.

Nationstar Mortgage, LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super.

2013).

                       August 28, 2015 “Judgment”

      In his first issue, Appellant asks this Court to determine whether the

August 28, 2015 “judgment” is valid.      As Appellant notes, this Court has

previously held—twice—that the August 28, 2015 “judgment” is not a valid

judgment.    We will not revisit those decisions.   See Commonwealth v.

Starr, 664 A.2d 1326, 1331 (Pa. 1995) (discussing the “law of the case”

doctrine, which mandates “that a court involved in the later phases of a

litigated matter should not reopen questions decided by another judge of

that same court or by a higher court in the earlier phases of the matter”).

      We    are   wholly   unpersuaded   by   Appellee’s   averments   that   a

“judgment” may be valid for some purposes but not others. Appellee’s Brief

at 18-22.   Accordingly, we note—for the third time—that the August 28,

2015 “judgment,” which was entered while Appellant’s Post-Trial Motions



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were still pending, is not valid. Moreover, our review of the record makes

clear that there was no valid judgment in place at the time of the Sheriff’s

Sale in the instant case.2

                                     Sheriff’s Sale

      Having determined that there was no valid judgment in the instant case

prior to the Sheriff’s Sale, we turn to the question of whether the trial court

abused its discretion or erred as a matter of law in denying Appellant’s

Motion to Set Aside Sheriff’s Sale.

      It is axiomatic that a Sheriff’s Sale is a means by which a Plaintiff may

enforce a judgment.          See Pa.R.C.P. No. 1149 (“Judgment in the action

shall be enforced as provided by Rules 3180 to 3183, inclusive.” (emphasis

added)); Pa.R.C.P. No. 3180 (“If the plaintiff is proceeding against both

personal and real property covered by a mortgage . . . the judgment may

be enforced in one execution proceeding against both the personal and real

property pursuant to the rules of this chapter governing execution on real

property.” (emphasis added)); Pa.R.C.P. No. 3181 (detailing rules governing

“[t]he   procedure     for   the   enforcement   of   a   judgment   against   real

property[.]” (emphasis added)).



____________________________________________


2
  As discussed infra, Appellee filed a Praecipe for Entry of Judgment
subsequent to the Sheriff’s Sale on March 1, 2017, while the instant appeal
was pending before this Court.



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      As discussed supra, the Sheriff’s Sale at issue in the instant case was

held before a valid judgment was entered. The trial court’s August 14, 2015

verdict was an insufficient basis on which to execute the Sheriff’s Sale. The

plain language of multiple statutes calls for the enforcement of a judgment,

not a verdict. See, e.g., Pa.R.C.P. No. 1149; Pa.R.C.P. No. 3180; Pa.R.C.P.

No. 3181. Given the absence of a valid judgment in the instant case, we are

constrained to find that the October 19, 2016 Sheriff’s Sale is invalid.   Cf.

See also Harris v. Harris, 239 A.2d 783, 785 (Pa. Super. 1968) (noting

that “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[.]”).

      The trial court, therefore, erred as a matter of law in denying

Appellant’s Motion to Set Aside Sheriff’s Sale.3




____________________________________________


3
  Appellee notes that “if the Sheriff’s Sale is set aside, [Appellee] would
merely need to file another praecipe for writ of execution and the Sheriff’s
[S]ale would be held anew.” Appellee’s Brief at 15. Appellee urges us to
deny Appellant relief on those grounds, averring that it would be a “waste”
and will “cause [Appellee] to incur additional costs and fees when the result
of another sale could be identical.” Id. We note that Appellee was aware of
the prior Orders of this Court finding no valid judgment. Appellee was free
to file a Praecipe for Judgment prior to the Sheriff’s Sale, but declined to do
so.



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                              Merits of Verdict

      In his final issue, Appellant attacks the underlying merits of the August

14, 2015 verdict, averring that Appellee failed to establish that it was in

possession of the Note endorsed in blank.        Appellant’s Brief at 6-9.    As

Appellant failed to raise this claim in his Motion to Set Aside Sheriff’s Sale,

we conclude that it is waived.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). This requirement bars an

appellant from raising “a new and different theory of relief” for the first time

on appeal.    Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super.

1983). Accordingly, an appellant may not raise a claim for the first time in

his or her 1925(b) Statement.      Steiner v. Markel, 968 A.2d 1253, 1257

(Pa. 2009).

      In the instant case, Appellant’s Motion to Set Aside Sheriff’s Sale

requested relief based on his claim “that the underlying judgment was

invalid; hence, sheriff sale on the judgment should also be invalid.”     Motion

to Set Aside Sheriff’s Sale, filed 12/22/16, at 2. It was not until the filing of

his Notice of Appeal and his 1925(b) Statement that Appellant attacked the

underlying verdict and requested relief based on his claim that Appellee

failed to establish its possession of the Note.       This claim is, therefore,

waived.




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J-A19029-17


      Order denying Appellant’s Motion to Set Aside Sheriff’s Sale reversed.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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