J-A24011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

LIBERTY PHILADELPHIA REA, LP,            : IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
               Appellee                  :
                                         :
                   v.                    :
                                         :
EFL PARTNERS V, L.P. & EFL PARTNERS      :
X, L.P.,                                 :
                                         :
              Appellants                 : No. 2285 EDA 2014


               Appeal from the Order Entered June 18, 2014,
           in the Court of Common Pleas of Philadelphia County,
              Civil Division, at No(s): 314 January Term, 2010

BEFORE:    PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED SEPTEMBER 15, 2015

     EFL Partners V, L.P. and EFL Partners X, L.P. (collectively EFL) appeal

from the order entered on June 18, 2014, which calculated the deficiency

judgment owed by EFL to Liberty Philadelphia REO, LP (Liberty). We affirm.

     We summarize briefly the complicated history of this case. On January

5, 2010, Liberty filed a complaint in confession of judgment seeking a

judgment in the amount of $11,214,861.05 against EFL. That sum included

$1,459,682.22 in attorneys’ fees. EFL filed a petition to open the confessed

judgment, which was denied by the trial court, and EFL filed a notice of

appeal to this Court.     A panel of this Court vacated the judgment and

remanded the case to the trial court to recalculate attorneys’ fees. Republic




*Retired Senior Judge assigned to the Superior Court.
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First Bank v. EFL, 31         A.3d 738 (Pa. Super. 2011) (unpublished

memorandum).

      Prior to the trial court conducting a hearing on remand, Liberty filed a

petition to amend the confessed judgment in order to remove a claim for

attorneys’ fees. The trial court granted Liberty’s petition, and EFL filed an

appeal to this Court.

      On appeal, a panel of this Court held that pursuant to Pa.R.C.P. 2959,

EFL waived all issues on appeal by failing to file a petition to strike or open

the confessed judgment. Thus, the confessed judgment, in the amount of

$9,755,718.83 plus post-judgment interest accruing at a per diem rate of

$2,444.31, was affirmed. Liberty Philadelphia REO, LP v. EFL Partners

V, L.P. and EFL Partners X, L.P., 55 A.3d 141 (Pa. Super. 2012)

(unpublished memorandum).

      Meanwhile, Liberty executed on the judgment by causing the sale of

certain of EFL’s properties. Liberty purchased the properties at sheriff’s sale

on October 5, 2010 and petitioned the trial court to set a fair market value

for the properties pursuant to the Deficiency Judgment Act, 42 Pa.C.S.

§ 8103. Following a hearing, the trial court set the fair market value of the

properties   at   $8,400,000.00,   which   left   a   deficiency   judgment   of

$4,005,226.47.




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      EFL filed a notice of appeal from that order contesting the trial court’s

calculation of the fair market value and interest. On March 3, 2014, a panel

of this Court affirmed the order in part and vacated the order in part.

Specifically, this Court affirmed the trial court’s conclusion with respect to

the fair market value of the properties.    However, this Court vacated the

trial court’s calculation of the per diem interest rate and concluded that the

trial court erred by continuing to apply the $2,444.31 per diem interest rate

after the October 5, 2010 sheriff’s sale. Liberty Philadelphia REO, LP v.

EFL Partners V, L.P. and EFL Partners X, L.P., 100 A.3d 292 (Pa. Super.

2014) (unpublished memorandum).

      On March 10, 2014, the trial court entered an order directing the

parties to file memoranda on the issue of the amount of the deficiency

judgment in light of this Court’s disposition.     In its memorandum, EFL

argued first that the trial court lacked jurisdiction because the record had

not been remanded.     EFL also argued that all interest calculations should

occur after the trial court subtracted the fair market value. Meanwhile, on

June 16, 2014, EFL timely filed a petition for allowance of appeal to our

Supreme Court from the March 3, 2014 memorandum of this Court. 1            On




1
  The Supreme Court denied EFL’s petition for allowance of appeal on June
16, 2015. Liberty Philadelphia REO, LP v. EFL Partners V, L.P., 117
A.3d 298 (Pa. 2015).


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June 18, 2014, the trial court entered an order with a new calculation for the

deficiency judgment. That order provided the following, in relevant part:

      Modified Judgment             $9,775,178.33
      Plus accrued post-            + $667,296.63
      judgment interest to
      October 5, 2010
      Judgment amount as of        $10,442,475.46
      October 5, 2010
      Less fair market value of    - $8,400,000.00
      property sold
      Deficiency Judgment as        $2,022,476.46
      of October 5, 2010
      Accrued interest, October     + $628,848.09
      5, 2010 to March 20,
      2014
      Deficiency Judgment as        $2,651,323.55
      of March 20, 2014

Order, 6/18/2014 (footnotes omitted).

      EFL timely filed a notice of appeal to this Court from the June 18, 2014

order. On appeal, EFL argues that the trial court was without jurisdiction to

enter that order because the case had not yet been remanded to the trial

court.2

            The Pennsylvania Rules of Appellate Procedure guide our
      determination. Rule 1701(a) states that “after an appeal is taken
      or review of a quasijudicial order is sought, the trial court or

2
  The only issue raised on appeal by EFL is the jurisdictional issue. Thus,
any argument as to the merits of the interest calculation has been
abandoned by EFL on appeal. See City of Philadelphia v. Schweiker, 858
A.2d 75, 90 (Pa. 2004) (“Appellants did not state these issues in their list of
questions presented on appeal, nor have they discussed them in the body of
their brief or included them in their prayer for relief. Hence, these claims are
abandoned.”).




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      other government unit may no longer proceed further in the
      matter.” Pa.R.A.P. 1701(a). Rule 2591(a) indicates that Rule
      1701(a) ceases to apply once the appellate court remands the
      record to the lower court. Pa.R.A.P. 2591(a). Once the record is
      remanded, “the court or other government unit below shall
      proceed in accordance with the judgment or other order of the
      appellate court.” Id.

Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668, 672 (Pa. Super.

2007).

      We find Stanton instructive.      In that case, the Stantons filed a

complaint for injuries suffered by their son while riding a motorbike on land

owned by Lackawanna Energy, Ltd.      Pennsylvania Power & Light Company

(PP&L) owned an easement on that land for the construction and

maintenance of electric power transmission towers and attached lines. PP&L

moved for summary judgment, which the trial court denied. The trial court

certified its order for appeal pursuant to 42 Pa.C.S. § 702(b), and PP&L

petitioned this Court for allowance of appeal.    This Court granted PP&L’s

petition and concluded that the trial court erred in denying PP&L’s motion for

summary judgment. Thus, on February 26, 2003, this Court reversed the

order and remanded to the trial court for the entry of summary judgment in

favor of PP&L. On March 3, 2003, the trial court entered an order granting

PP&L’s motion for summary judgment.

      On March 13, 2003, the Stantons timely filed a petition for allowance

of appeal to our Supreme Court from the February 26, 2003 memorandum




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of this Court. That petition was subsequently granted, and on November 23,

2005, the Supreme Court affirmed this Court’s order.

     On December 2, 2005, the trial court entered a second order granting

summary judgment in favor of PP&L. The Stantons filed a notice of appeal

from that order. PP&L argued that the Stantons waived all issues on appeal

because they did not file a notice of appeal from the order granting

summary judgment that was entered on March 3, 2003.            The Stantons

argued that “they had no obligation to file an appeal from the March 3, 2003

order since the trial court entered the order while it lacked jurisdiction.”

Stanton, 915 A.2d at 672.

     A panel of this Court considered that issue in light of Pennsylvania

Rules of Appellate Procedure 1701 and 2591. This Court held that

     [w]hen the trial court entered the [March 3, 2003] order, the
     Superior Court had not remanded the record to the trial court,
     nor could it have. Rule 2572(a) instructs that “[t]he record shall
     be remanded to the court or other tribunal from which it was
     certified at the expiration of 30 days after the entry of the
     judgment or other final order of the appellate court possessed of
     the record.” Pa.R.A.P. 2572(a). Additionally, the Rules prescribe
     that the pendency of, inter alia, a petition for allowance of
     appeal shall stay the remand until the petition’s disposition.
     Pa.R.A.P. 2572(b). … Herein, [the Stantons’] decision to file a
     petition for allowance of appeal stayed the remand of the record
     to the trial court….

Stanton, 915 A.2d at 672.

      Based on the foregoing, we agree with EFL that the trial court lacked

jurisdiction to enter the June 18, 2014 judgment unless an exception



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applied.3 The exceptions are set forth in Pa.R.A.P. 1701(b) and (c), which

provide, in relevant part.

      (b)After an appeal is taken or review of a quasijudicial order is
      sought, the trial court or other government unit may:

            (1) Take such action as may be necessary to
            preserve the status quo, correct formal errors in
            papers relating to the matter, cause the record to be
            transcribed, approved, filed and transmitted, grant
            leave to appeal in forma pauperis, grant
            supersedeas, and take other action permitted or
            required by these rules or otherwise ancillary to the
            appeal or petition for review proceeding.

                                     ***

      (c) Where only a particular item, claim or assessment adjudged
      in the matter is involved in an appeal, or in a petition for review
      proceeding relating to a quasijudicial order, the appeal or
      petition for review proceeding shall operate to prevent the trial
      court or other government unit from proceeding further with
      only such item, claim or assessment, unless otherwise ordered
      by the trial court or other government unit or by the appellate
      court or a judge thereof as necessary to preserve the rights of
      the appellant.

Pa.R.A.P. 1701(b) and (c).4



3
 Liberty essentially concedes that Stanton is on all fours with this case. It
argues that Stanton is not applicable because none of the Pa.R.A.P. 1701
exceptions applied in that case. Liberty’s Brief at 19.
4
  Liberty also argues that the trial court was permitted to enter the new
judgment pursuant to another exception: “Take any action directed or
authorized on application by the appellate court.” Pa.R.A.P. 1701(b)(5);
Liberty’s Brief at 18. Liberty bases this argument on an order of this Court
which denied EFL’s motion for stay and noted that “this matter is now in the
hands of the trial court.” Superior Court Order, 3/3/2014. While this
statement may not have been a model of clarity, we disagree that it would


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J-A24011-15


      Liberty argues that the interest calculation was not at issue in the

petition for allowance of appeal; therefore, the calculation falls under the

exception set forth in Rule 1701(b)(1) and (c). Liberty’s Brief at 16. We

agree.

      In its last appeal to this Court, EFL set forth two issues.       First, it

challenged the fair market value calculation. Second, it challenged the trial

court’s calculation of interest.   This Court held that the fair market value

calculation was correct, but the interest calculation was incorrect. In other

words, EFL won on the issue of the interest calculation; therefore, its petition

for allowance of appeal to our Supreme Court concerned only the fair market

value issue. Accordingly, the issue as to interest was no longer in dispute,

and the trial court properly acted in recalculating the judgment.

      We also point out that our Supreme Court subsequently denied EFL’s

petition for allowance of appeal. Therefore, even if the trial court had acted

prematurely, its actions resulted in no prejudice to EFL.

      Based on the foregoing, we affirm the order entered by the trial court.

      Order affirmed.




have empowered the trial court to act in a situation where it did not
otherwise have jurisdiction to do so.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/15/2015




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