J-S89034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A. S/I/I/T                    IN THE SUPERIOR COURT OF
WACHOVIA BANK, N.A.                                     PENNSYLVANIA

                      v.

DANIEL R. ENGLER AND JOY A. ENGLER

                             Appellant                 No. 200 EDA 2016


                  Appeal from the Order December 10, 2015
         in the Court of Common Pleas of Monroe County Civil Division
                          at No(s): No. 7586-CV2011

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED April 25, 2017

        Appellants, Daniel R. Engler and Joy A. Engler, appeal from the order

of the Monroe County Court of Common Pleas, Civil Division denying their

petition to set aside a sheriff’s sale.     Appellee, Wells Fargo Bank, N.A.,

requests that we quash this appeal due to Appellants’ failure to file a timely

Pa.R.A.P. 1925(b) statement of matters complained of on appeal (“Rule

1925 statement”) or a timely motion for extension of time within which to

file a Rule 1925 statement. Pursuant to Pa.R.A.P. 1925(c)(2), we remand

this case to the trial court for proceedings consistent with this memorandum.

        Appellants are the owners of real property located at 137 Silver

Springs Road, Kunkletown, Pennsylvania.           Appellants mortgaged their

property in 1988, and the mortgage was subsequently assigned to Appellee.

*
    Former Justice specially assigned to the Superior Court.
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After living in their residence for over thirty-eight years, Appellants fell

behind on their mortgage payments. On August 29, 2011, Appellee filed a

mortgage foreclosure action.        Following completion of the pleadings,

Appellee moved for summary judgment.         On November 4, 2013, the trial

court granted summary judgment in favor of Appellee.

      In June 2014, the Monroe County Sheriff’s Office served Appellants

with a notice of the sheriff’s sale. On February 26, 2015, the sheriff’s sale

took place. On March 30, 2015, Appellants filed a petition to set aside the

sheriff’s sale.    Appellants averred that Appellee’s representative assured

them that the sheriff’s sale had been continued from February 26, 2015 for

one month.        Based on these assurances, Appellants did not take further

action to save their house, such as filing for bankruptcy or moving to

continue the sheriff’s sale.

      On August 19, 2015, the trial court held a hearing with regard to

Appellants’ petition. In an order docketed on December 11, 2015, the court

denied Appellants’ petition. Appellants timely appealed to this Court.

      On January 11, 2016, the trial court ordered Appellants to file their

Rule 1925 statement within twenty-one days.       The docket states that the

prothonotary sent this order to Appellants on January 12, 2016. Thus, the

deadline for Appellants’ Rule 1925 statement was February 2, 2016.

Appellants did not request an extension of time to file their Rule 1925

statement until February 5, 2016, three days after the deadline.



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      On February 11, 2016, the trial court filed an opinion stating that

Appellants waived all issues on appeal by failing to file a timely Rule 1925

statement.     On   February 12, 2016, Appellants filed a petition for

enlargement of time within which to file their Rule 1925 statement.        On

February 16, 2016, the trial court vacated its February 11, 2016 opinion. On

February 18, 2016, sixteen days after the deadline, Appellants filed their

Rule 1925 statement.

      On March 18, 2016, the trial court filed a new opinion agreeing with

Appellants’ claims of error and recommending that this Court reverse its

order denying Appellants’ petition to set aside the sheriff’s sale.

      In this Court, Appellee moved to dismiss the appeal on the ground that

Appellants waived all issues by filing an untimely Rule 1925 statement. In

response, pursuant to Pa.R.A.P. 1925(c)(2), Appellants filed an application

for remand to the trial court for the trial court to accept their Rule 1925

statement nunc pro tunc. On May 12, 2016, a motions panel of this Court

granted Appellee’s motion to dismiss and denied Appellants’ application for

remand.

      Appellants filed a timely application for reconsideration. On June 29,

2016, a motions panel of this Court granted Appellants’ application for

reconsideration and vacated the May 12, 2016 order.          The motions panel

also denied Appellee’s application for dismissal without prejudice and denied

Appellants’ motion for remand as moot.



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      On September 26, 2016, Appellants filed a second motion for remand,

again requesting a remand of the case for the trial court to accept their Rule

1925 statement nunc pro tunc. On October 31, 2016, a motions panel of

this Court denied Appellants’ motion without explanation.

      Appellants raise one issue in this appeal:

         Did the trial court abuse its discretion by failing to set
         aside the sheriff’s sale[,] where the Appellants, though
         having received notice, were, based upon representations
         made to Mr. Engler at the sheriff’s sale when he was
         without counsel, confused and led to believe that the
         sheriff’s sale would be continued and/or postponed[,]
         thereby causing Mr. Engler to refrain from making a formal
         request for a continuance and/or postponement himself?

Appellant’s Brief at 3.1

      Before we can address the merits of this issue, we must determine

whether Appellants have shown good cause under Rule 1925(c)(2) for filing

their Rule 1925 statement nunc pro tunc.       If Appellants can demonstrate

good cause, then they have preserved their issue for appeal; if they cannot,

then they have waived this issue. For the reasons that follow, we conclude

that the first step in determining whether Appellants have shown good cause

is to remand this case to the trial court for an evidentiary hearing and

findings of fact concerning the steps Appellants took in filing their Rule 1925

statement. Upon receipt of the trial court’s findings of fact, this Court will



1
  This single issue is effectively the same as the four issues raised in
Appellants’ Rule 1925 statement.



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apply the good cause test within Rule 1925(c)(2) to determine the

appropriate remedy.

     Pa.R.A.P. 1925(b) provides in relevant part:

        (b) Direction to file statement of errors complained
        of on appeal; instructions to the appellant and the
        trial court.—If the judge entering the order giving rise to
        the notice of appeal (“judge”) desires clarification of the
        errors complained of on appeal, the judge may enter an
        order directing the appellant to file of record in the trial
        court and serve on the judge a concise statement of the
        errors complained of on appeal (“Statement”).

                                   ***

        (2) Time for filing and service.—The judge shall allow the
        appellant at least 21 days from the date of the order’s
        entry on the docket for the filing and service of the
        Statement. Upon application of the appellant and for good
        cause shown, the judge may enlarge the time period
        initially specified or permit an amended or supplemental
        Statement to be filed. Good cause includes, but is not
        limited to, delay in the production of a transcript necessary
        to develop the Statement so long as the delay is not
        attributable to a lack of diligence in ordering or paying for
        such transcript by the party or counsel on appeal. In
        extraordinary circumstances, the judge may allow for the
        filing of a Statement or amended or supplemental
        Statement nunc pro tunc.

Id. Pa.R.A.P. 1925(c) provides in relevant part:

        (c) Remand.

        (1) An appellate court may remand in either a civil or
        criminal case for a determination as to whether a
        Statement had been filed and/or served or timely filed
        and/or served.

        (2) Upon application of the appellant and for good
        cause shown, an appellate court may remand in a
        civil case for the filing nunc pro tunc of a Statement


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         or for amendment or supplementation of a timely filed and
         served Statement and for a concurrent supplemental
         opinion.

Id. (emphasis added).

      In civil cases, the failure to file a timely Rule 1925 statement usually

spells doom for the appeal.      See Greater Erie Indus. Dev. Corp. v.

Presque Isle Downs, Inc., 88 A.3d 222, 226-27 (Pa. Super. Ct. 2014) (en

banc) (all issues in civil appeal waived where appellant filed Rule 1925

statement three days after deadline and failed to request extension prior to

deadline). Nevertheless, Rule 1925(c)(2) authorizes this Court to permit a

Rule 1925 statement nunc pro tunc “upon application of the appellant and

for good cause shown.”

      Although Rule 1925(c)(2) does not define “good cause,” Rule

1925(b)(2) defines this term to “include[] . . . delay in the production of a

transcript necessary to develop the [Rule 1925] Statement so long as the

delay is not attributable to a lack of diligence in ordering or paying for such

transcript by the party or counsel on appeal.”     Pa.R.A.P. 1925(b)(2).   We

think it clear that our Supreme Court intended for “good cause” to have the

same meaning in subsection (c)(2) as in subsection (b)(2).         Cf. Bd. of

Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d 610, 622 (Pa.

2010) (“[S]ections of a statute must be read together and in conjunction

with each other, and construed with reference to the entire statute. A word

or phrase whose meaning is clear when used in one section of a statute will



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be construed to mean the same thing in another section of the same

statute”) (citations and quotation marks omitted); Commonwealth v.

Smith, 883 A.2d 612, 615 (Pa. 2005) (“[a]n interpretation of the language

in a section of a statute must remain consistent throughout the statute”)

(citation omitted).

      Similarly, Rule 1925(c)(2) does not define “nunc pro tunc,” but the

Note to Rule 1925(b)(2) explains this term in detail:

         In general, nunc pro tunc relief is allowed only when there
         has been a breakdown in the process constituting
         extraordinary circumstances. See, e.g., In re Canvass
         of Absentee Ballots of Nov. 4, 2003 Gen. Election, []
         843 A.2d 1223, 1234 ([Pa.] 2004) (“We have held that
         fraud or the wrongful or negligent act of a court official
         may be a proper reason for holding that a statutory appeal
         period does not run and that the wrong may be corrected
         by means of a petition filed nunc pro tunc.”) Courts have
         also allowed nunc pro tunc relief when “non-negligent
         circumstances, either as they relate to appellant or his
         counsel” occasion delay. McKeown v. Bailey, 731 A.2d
         628, 630 (Pa. Super. 1999). However, even when there is
         a breakdown in the process, the appellant must attempt to
         remedy it within a “very short duration” of time. Id.;
         Amicone v. Rok, 839 A.2d 1109, 1113 (Pa. Super. 2003)
         (recognizing a breakdown in process, but finding the delay
         too long to justify nunc pro tunc relief).

Note, Pa.R.A.P. 1925(b)(2). Once again, we think it clear that our Supreme

Court intended “nunc pro tunc” to mean the same thing in subsection (c)(2)

as it does in the Note to subsection (b)(2). Cf. Bd. of Revision of Taxes, 4

A.3d at 622; Smith, 883 A.2d at 615.

      Here, Appellants provide the following reasons for failing to file their

Rule 1925 statement before the court-ordered deadline of February 2, 2016:


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           [B]etween January 11, 2016 and January 21, 2016,
       undersigned counsel’s staff made telephone calls to the
       Prothonotary of Monroe County and were informed that all
       requests for transcripts were to be made through that
       office, hence, several additional calls were made inquiring
       about and then following up on the cost of the transcript,
       with the understanding that the transcript had been
       ordered. On January 21, 2016, not having received a
       response as a result of the oral communications with the
       Prothonotary’s Office, undersigned counsel forwarded
       correspondence containing a Statement Regarding
       Transcript Under Rule of Appellate Procedure 904(c) to the
       Prothonotary.

          On January 23, 2016, undersigned counsel again called
       the Prothonotary to inquire whether the request for
       transcripts had been received. Again, not hearing further
       from the Prothonotary or Court Reporter on the cost of
       transcript, a copy of the aforesaid documentation was
       forwarded, on January 25, 2016, to the Honorable Stephen
       M. Higgins (trial court).

           On or about January 25, 2016, undersigned counsel
       received a call from the Prothonotary and was informed,
       for the first time, that to obtain the transcript, and have it
       filed of record, he was required, under local rule and
       dissimilar from Pa.R.A.P. 1911, to file a formal petition to
       obtain transcripts.      Undersigned counsel immediately
       prepared forwarding correspondence, along with a Petition
       Requesting Transcripts to the Prothonotary on January 26,
       2016.

          On January 28, 2016, undersigned counsel then called
       the Prothonotary to determine if all requests had made it
       to the trial court. On February 5, 2016, undersigned
       counsel received the Order, dated February 1, 2016,
       granting the request for transcripts and was informed of
       the transcript costs. On February 8, 2016, counsel sent a
       check for the full amount of the cost of transcripts to the
       Prothonotary and/or Court Reporter.

          On February 11, 2016, the trial court issued a
       Statement Pursuant to Pa.R.A.P. 1925(a), adopting the
       reasoning set forth in its order of December 10, 2015, with


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         recognition that [Appellants] had failed to file a Statement.
         Subsequent to the issuance of the first Rule 1925(a)
         Statement, on February 11, 2016, the transcript from the
         hearing was filed of record. On that same day, but before
         receiving the trial court’s Rule 1925(a) Statement or the
         transcript, [Appellants] forwarded a Petition to Enlarge
         Time to File and Serve Statement of Errors and a proposed
         order to the trial court. Therein, counsel for Englers
         alleged that he had not yet received the transcript from
         the relevant hearing, which was necessary for counsel to
         prepare the Statement of Errors. The Certificate of Service
         of this document reflects that it was served on Appellee’s
         counsel of record and, despite that service, Appellee did
         not object to the request for an extension of time to file
         the Statement. Later, undersigned counsel received the
         transcript, via email, from which he could prepare and file
         a Statement. [Appellants’] Petition to Enlarge time was
         filed on February 12, 2016.

            On February 17, 2016, the trial court issued and filed
         an Order vacating its Statement Pursuant to Pa.R.A.P.
         1925(a) of February 11, 2016 and granted [Appellants] ten
         (10) days within which to file their Statement. Within one
         (1) day of the notice of the extension being sent by the
         Prothonotary, [Appellants] filed their Statement of Errors
         Complained of on Appeal on February 18, 2016.

Appellants’ Reply Brief at 3-5 (citations omitted).

      Rule 1925(c)(2) requires this Court—not the trial court—to determine

whether good cause exists to permit the filing of Appellants’ Rule 1925

statement nunc pro tunc. As an appellate court, however, we cannot assess

the credibility of the foregoing factual assertions in Appellants’ reply brief.

Only the trial court can perform this task through an evidentiary hearing.

      Accordingly, within the next sixty days, we direct the trial court to

conduct an evidentiary hearing and enter findings of fact detailing the steps

Appellants took between January 12, 2016, the date the prothonotary sent


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Appellants notice of the order to file a Rule 1925 statement, and February

18, 2016, the date Appellants filed their Rule 1925 statement. Upon receipt

of the trial court’s findings of fact, we will determine whether good cause

exists under Rule 1925(c)(2) to permit the filing of Appellants’ Rule 1925

statement nunc pro tunc.     We then will take all other necessary steps to

resolve this appeal.2

      Case remanded for proceedings consistent with this memorandum.

Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2017




2
  We acknowledge that this decision differs from the orders of our two
motions panels denying Appellants’ motions for remand. Nevertheless, in
our capacity as the merits panel, we are not bound by decisions of the
motions panel in earlier stages of this appeal. It is well-settled that a trial
judge may revisit issues decided by another judge during an earlier stage of
the case. See Goldey v. Trs. of Univ. of Pa., 675 A.2d 264, 267 (Pa.
1996) (notwithstanding law of the case doctrine, “where the motions differ
in kind, as preliminary objections differ from motions for judgment on the
pleadings, which differ from motions for summary judgment, a judge ruling
on a later motion is not precluded from granting relief although another
judge has denied an earlier motion”). The same logic enables a merits panel
of this Court to reconsider issues decided by a motions panel to effectuate
the proper disposition of the appeal.



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