J-S58032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CONNIE GREENAWALT AND MARTIN                  IN THE SUPERIOR COURT OF
PETRATOS                                            PENNSYLVANIA

                        Appellees

                   v.

SCOTT AND RACHEL KRISSINGER

                        Appellants                 No. 185 MDA 2015


            Appeal from the Judgment Entered March 17, 2015
             In the Court of Common Pleas of Lebanon County
                    Civil Division at No(s): 2012-01188


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                  FILED NOVEMBER 04, 2015

     Appellants, Scott and Rachel Krissinger, appeal from the judgment

entered in the Lebanon County Court of Common Pleas in favor of Appellees,

Connie Greenawalt and Martin Petratos, and against Appellants in this

ejectment action. We affirm.

     The relevant facts and procedural history of this case are as follows.

In December 2003, Elsa H. Peters (“Elsa”) was the sole owner of 3204 Route

72, Jonestown, Lebanon County, Pennsylvania (“Jonestown Premises”). Elsa

obtained a mortgage on the Jonestown Premises from Ameriquest Mortgage

Company on December 23, 2003. The mortgage was ultimately assigned to

Deutsche Bank in February 2009. Following Elsa’s death in June 2009, her

children, Hugh V. Peters and Sarah P. Reynolds, became the executors of
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58032-15


Elsa’s estate. The mortgage on the Jonestown Premises went into arrears,

and Deutsche Bank filed a complaint for mortgage foreclosure against Mr.

Peters and Ms. Reynolds on March 18, 2010.1 Deutsche Bank subsequently

purchased the Jonestown Premises at a sheriff’s sale in 2011.

       The trial court continues:

          When [Deutsche Bank] became aware that [Appellants]
          were residing in the residence, [the Bank] filed an Action
          of Ejectment against them on August 26, 2011. Judgment
          of Ejectment was entered [against Appellants] on February
          3, 2012.

          On February 14, 2012, [Appellants] filed for bankruptcy.
          [Deutsche Bank] apparently did not wish to deal with the
          Bankruptcy Court. Accordingly, [the Bank] withdrew its
          ejectment action on March 19, 2012, and instead chose to
          place [Jonestown Premises] for sale. On February 10,
          2012, [Deutsche Bank] sold the [Jonestown Premises] to
          [Appellees]. [Appellees] filed an Action in Ejectment on
          June 15, 2012, and moved for Summary Judgment on
          September 14, 2012.

          Because [Appellants] claimed that they did not receive
          adequate notice of the Mortgage Foreclosure and the
          Sheriff’s Sale, [the court] denied [Appellees’] Motion for
          Summary Judgment. On March 10, 2014, [the court] held
          a Bench Trial on the issue of whether [Appellants] had
          notice of the foreclosure proceedings. On that same day,
          [the court] entered a verdict in favor of [Appellees] and
          against [Appellants], granting [Appellees] possession of
          the [Jonestown Premises] and damages in the amount of
          $7,200.00.

          On March 20, [2014,] [Appellants] filed a Motion for a New
          Trial, and on April [9, 2014,] [Appellants] appealed to the
____________________________________________


1
  The record fails to tell us when Appellants took possession of the property
at issue.



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          Superior Court. …

(Trial Court Opinion, filed December 31, 2014, at 3-4). This Court remanded

the record for disposition of Appellants’ post-trial motion and quashed the

appeal as premature. The trial court subsequently denied Appellants’ post-

trial motion on December 31, 2014, and Appellants filed another notice of

appeal on January 26, 2015.             On January 27, 2015, the court ordered

Appellants to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).                 Appellants filed their Rule 1925(b)

statement on February 18, 2015, which the court deemed untimely.2

       Appellant raises the following issues for our review:

          WHETHER THE [TRIAL COURT] ERRED IN DENYING
          [APPELLANTS’] MOTION TO DEEM CONCISE STATEMENT
          OF MATTERS COMPLAINED OF ON APPEAL TIMELY, OR, IN
          THE ALTERNATIVE, WHETHER THAT DENIAL IS OF NO
          INSTANT IMPORT[.]

          WHETHER THE [TRIAL COURT] ERRED IN DENYING
          [APPELLANTS’] POST-TRIAL MOTION THEREBY AFFIRMING
          ITS TRIAL VERDICT WHEN THERE WAS NO ACTUAL
          SERVICE OF THE ACTION IN FORECLOSURE OR NOTICE OF
          SHERIFF’S FORECLOSURE SALE[.]

(Appellants’ Brief at 8).
____________________________________________


2
   Meanwhile, by order dated February 23, 2015, this Court directed
Appellants to file a praecipe to enter judgment on the verdict. Appellants
failed to comply and, on March 17, 2015, this Court again ordered Appellants
to praecipe for entry of judgment, or the appeal might be dismissed.
Appellants filed a response to this Court’s order on March 25, 2015, which
included a copy of Appellants’ praecipe to enter judgment filed on March 17,
2015, and a copy of the docket reflecting entry of final judgment against
Appellants that same day.



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      In their first issue, Appellants argue their Rule 1925(b) statement was

timely.   Appellants claim they filed their Rule 1925(b) statement within

twenty-one days of January 28, 2015, the date the prothonotary entered

Pa.R.C.P. 236 notice on the docket. Appellants conclude this Court should

deem their Rule 1925(b) statement timely. We agree.

      “Whenever a trial court orders an appellant to file a concise statement

of [errors] complained of on appeal pursuant to Rule 1925(b), the appellant

must comply in a timely manner.”      Greater Erie Indus. Development

Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.Super. 2014)

(en banc) (quoting Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803

(Pa.Super. 2007)).   A “failure to comply with the minimal requirements of

Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.”

Presque, supra at 224 (emphasis in original).

      In civil cases, Rule 1925(b) requires: (1) the trial court must issue a

Rule 1925(b) order directing an appellant to file a response within twenty-

one days of that order; (2) the trial court must file the order with the

prothonotary; (3) the prothonotary must enter the order on the docket; (4)

the prothonotary must give written notice of the entry of the order to each

party, pursuant to Pa.R.C.P. 236; and (5) the prothonotary must record Rule

236 notice on the docket.    See Forest Highlands Community Ass’n v.

Hammer, 879 A.2d 223, 227 (Pa.Super. 2005). “If any of the procedural

steps set forth above are not complied with, [a]ppellant’s failure to act in


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accordance with Rule 1925(b) will not result in a waiver of the issues sought

to be reviewed on appeal.”          Id. (citation omitted) (stating in civil cases,

waiver for failure to comply with Rule 1925(b) order implicates notice

procedure set forth in Pa.R.C.P. 236). See Pa.R.C.P. 236.

       Here, on January 27, 2015, the court entered an order on the docket

directing Appellants to file a Rule 1925(b) statement within twenty-one

days. See Forest Highlands, supra. Nevertheless, the docket expressly

indicates the prothonotary did not issue Rule 236 notice to Appellants until

January 28, 2015. See Pa.R.C.P. 236. Appellants filed their Rule 1925(b)

statement on February 18, 2015, exactly twenty-one days after Rule 236

notice was issued.        Therefore, Appellants’ Rule 1925(b) statement was

timely filed.3 See Presque, supra.

       In their second issue, Appellants argue their post-trial motion should

have    been    granted     pursuant     to    Meritor   Mortgage   Corp.-East   v.

Henderson, 617 A.2d 1323 (Pa.Super. 1992). Appellants contend they did

not receive actual notice of the mortgage foreclosure, and there was no

credible testimony to prove otherwise.           Appellants allege the testimony of

George Christianson, the attorney for Mr. Peters and Ms. Reynolds, was

incredible due to conflicts of interests, as Attorney Christianson had

____________________________________________


3
  Despite the trial court’s determination that Appellants’ Rule 1925(b)
statement was untimely, and the subsequent lack of a Rule 1925(a) opinion,
the court did address Appellants’ notice issue in its previous opinions.



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represented the mortgagor, mortgagee, and the Sheriff’s department at

various times throughout litigation. Appellants maintain they are entitled to

a new trial because there was no testimony supporting actual personal

service, and because constructive notice was invalid.     Appellants conclude

this Court should reverse and grant Appellants a new trial. We disagree.

      Instantly, the court addressed Appellants’ issue in its July 8, 2014

opinion as follows:

         Notice is a cornerstone of constitutional due process. The
         requirement of notice can be neither ignored nor waived.
         Notice is considered so important that it is considered
         “jurisdictional” (See, e.g., In re Galli’s Estate, 17 A.2d
         899 (Pa. 1941)) so as to sanction “collateral attacks” on
         what may otherwise appear to be a valid court decree.
         See Brokans v. Melnick, 569 A.2d 1373, 1376
         (Pa.Super. 1989).       Within the context of mortgage
         foreclosure proceedings, Pennsylvania has adopted a rule
         governing notice. That rule states:

            (a)       In actions involving title to, interest in,
                      possession of, or charges or liens upon real
                      property, original process shall be served
                      upon the defendant in the manner provided
                      by Rule 400 et seq.

            (b)(1)    If in an action involving an interest in real
                      property the relief sought is possession or
                      mortgage foreclosure, original process also
                      shall be served upon any person not named
                      as a party who is found in possession of the
                      property. The sheriff shall note the service
                      in the return.

         [Pa.R.C.P. 410(a),(b)(1)].

         The case of Meritor Mortgage Corp.-East v.
         Henderson, 617 A.2d 1323 (Pa.Super. 1992) applied Rule
         410 in a context very similar to the one that is before [the

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       court] today. In Meritor, the plaintiff-bank obtained title
       to real estate following mortgage foreclosure litigation.
       After an in rem judgment was entered in favor of the bank,
       the bank then proceeded to file an ejectment action to
       evict persons who were living at the property.          The
       defendants sought to defend against the ejectment by
       alleging that the underlying mortgage foreclosure action by
       which the plaintiff obtained title was void due to lack of
       notice.    The [t]rial [c]ourt rejected the defendants’
       argument and enforced the plaintiff’s right to possession
       via title. The Superior Court reversed the [t]rial [c]ourt
       stating:

          There remains to be considered the trial court’s
          belief that the failure to make adequate service in
          the action of mortgage foreclosure could not be
          raised collaterally in the action of ejectment[.] …
          [T]he conclusive character of a judgment or decree
          depends not only upon the statutory grant of
          jurisdiction to the court pronouncing it, but upon
          actual jurisdiction over the persons whose rights are
          the subject of the investigation. Unless the court
          has the parties before it, by appearance or service of
          process, it is obvious that it cannot bind them by its
          adjudications[.]     …    If adequate notice of the
          foreclosure action was not given, the court lacked
          jurisdiction to enter judgment. It is never too late to
          attack a judgment for want of jurisdiction of either
          the subject matter or the person…. When there is no
          jurisdiction there is no authority to pronounce
          judgment.

          The appellant has alleged and has filed affidavits to
          support his defense that the mortgage foreclosure
          judgment was void for lack of jurisdiction. If this is
          correct, then the judgment entered in the mortgage
          foreclosure action can be attacked collaterally in the
          mortgagee’s action in ejectment to recover
          possession of the mortgaged premises from an heir
          who, with permission from the remaining heirs, was
          and remains in possession of the mortgaged
          premises. When the trial court held that such a
          defense could not be raised in the ejectment action,
          it committed legal error.

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J-S58032-15



       Id. at 1325-26 (internal citations omitted).

       In Federal National Mortgage Association v. Citiano,
       834 A.2d 645 (Pa.Super. 2003), the [Superior] Court
       distinguished the Meritor decision. In Federal National
       Mortgage, notice of the Sheriff’s sale was posted at the
       property being sold and was sent to the property by
       certified and regular mail. The [Superior] Court stated:

          Because appellant was originally served with notice,
          he should have become aware of any subsequent
          notice deficiency if he had exercised reasonable
          diligence. Appellant failed to exercise reasonable
          diligence when he failed to challenge the sheriff’s
          sale directly and waited to raise the issue in the
          ejectment action filed against him. The conclusion of
          Meritor Mortgage Corp—that it would be
          unreasonable to require a party to challenge notice
          in an action for which it was never served notice,
          and, consequently, of which it was unaware—is
          inapplicable to a situation where a party was served
          and should have been aware.

       Id. at 649.

                               *    *    *

       Until the March 10, 2014 Bench Trial, it was unclear
       whether [Appellants] received any notice of the foreclosure
       proceeding and the Sheriff’s sale.       The record now
       indicates that [Appellants] had notice of the existence of
       the mortgage foreclosure as early as March of 2010.
       Attorney Harry Fenton began representing [Appellants] in
       February of 2010. Thomas Puleo…, counsel for [Deutsche
       Bank] during the foreclosure proceedings, testified that
       [the Bank] commenced its foreclosure proceedings on
       March 18, 2010. Attorney George Christianson, counsel to
       the executors of the estate, wrote a letter to Attorney
       Fenton regarding the lease-purchase agreement, indicating
       that any agreement would have to acknowledge the
       mortgage foreclosure proceeding on the property.         In
       response, Attorney Fenton wrote a letter dated April 13,
       2010[,] to Attorney Christianson. [The] letter reflected

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J-S58032-15


       [Attorney   Fenton’s] knowledge       of   the   mortgage
       foreclosure, as it included an        attached   proposed
       agreement. …

                               *    *    *

       On April 14, 2010, Attorney Christianson wrote a letter to
       Attorney Fenton and forwarded a copy of the mortgage
       foreclosure to which [Attorney Christianson] had filed an
       answer.      [Attorney Christianson] indicated in his
       correspondence that he did not know if “under these
       circumstances [Appellants] would be desirous to enter into
       the agreement based on the impending mortgage
       foreclosure.” On April 15, 2010, Attorney Fenton wrote
       another letter to Attorney Christianson, indicating that
       [Attorney Fenton] was aware of the mortgage foreclosure
       action, and that he had referenced it in Paragraph 4 of his
       April 13, 2010 correspondence.          [Attorney Fenton]
       explained that the two letters likely crossed paths in the
       mail.

       On April 30, 2010, [Appellants] filed a Complaint against
       [Mr.] Peters and [Elsa’s] Estate requesting specific
       performance of their agreement. Paragraph 12 [of the
       complaint] alleges that “in further breach of the
       Agreement, [Mr. Peters and Elsa’s estate] have permitted
       the property to become [the] subject of a mortgage
       foreclosure action, filed at No: 2010-00590, thereby
       placing in jeopardy the right and opportunity of
       [Appellants] to take title.”       In response, Attorney
       Christianson wrote a letter.      In the letter, Attorney
       Christianson indicate[d] that the impending Sheriff’s Sale
       would not allow time for [Appellants] to complete their
       financing. [Attorney Christianson] then [gave] notice to
       [Appellants] that the [executors of Elsa’s estate] were
       willing to sell the property to [Appellants] for the
       contracted price if settlement could be held before the
       execution sale. Thereafter, in May of 2010, [Deutsche
       Bank] was served with a notice of the Lis Pendens filed by
       Attorney Fenton.

       On August 11, 2010, an Order for Judgment was issued in
       favor of [Deutsche Bank] in the sum of $183,782.06.
       [Appellants] were listed in the Affidavit of individuals to

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       which notice of the foreclosure proceeding must be sent.
       Shortly after judgment was entered, Attorney Fenton
       wrote a letter to [Appellants] indicating that judgment had
       been entered in the foreclosure action. This letter included
       a copy of the judgment.

       [Attorney Puleo] testified that on August 16, 2010,
       [Deutsche Bank] sent [Appellants] Notice of the Sheriff’s
       Sale. The notice indicated that the Sheriff’s Sale would
       occur on October 12, 2010. Attorney Fenton wrote a letter
       to [Appellants] on September 3, 2010, enclosing a notice
       of the Sheriff’s sale. The parties were again served notice
       by [Deutsche Bank] on September 8, 2010[,] because the
       date listed in the prior notice was incorrect. The new
       notice indicated to [Appellants] that the Sheriff’s sale
       would take place on December 13, 2010. … Notice was
       also sent directly to the [Jonestown Premises] to any
       “tenants and occupants” of that address. [Appellants]
       were living at the [Jonestown Premises] at this time, and
       would have therefore received this correspondence.

       In addition to these mailings, Sheriff David A. Heath
       [(“Heath”)] posted notice of the Sheriff’s sale on the
       [Jonestown Premises] on August 27, 2010, and again on
       October 11, 2010, indicating the corrected date of
       December 13, 2010. [Heath] testified that he usually
       posts the notice on the front door or a large glass window
       where the notice is visible.

       [Attorney Puleo] provided [the] [c]ourt with evidence that
       these notices were actually sent to [Appellants] and
       Attorney Fenton. Exhibit 20 represents the Certificate of
       Service and the stamped postal certification for all of the
       mailings that were sent to announce the Sheriff’s sale.
       Page 2 of Exhibit 20 certifies that the notice of the
       December [13], 2010 Sheriff’s sale was indeed postmarked
       on September 13, 2010[,] and sent to [Appellants].
       [Appellants] were not given notice by personal service
       because [Deutsche Bank] was only required to provide
       them with notice by ordinary mail.

                               *     *      *

       After a review of this timeline, it is clear…that [Deutsche

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J-S58032-15


         Bank] followed all necessary protocol and gave
         [Appellants] ample notice and time to intervene in the
         foreclosure proceedings. [Deutsche Bank] received the
         Notice of Lis Pendens a month after they commenced
         foreclosure proceedings.       [Deutsche Bank] thereafter
         provided notice of the mortgage foreclosure to Attorney
         Fenton and posted similar notice on the [Jonestown
         Premises]. [Appellants] received a letter from Attorney
         Fenton notifying them of the mortgage foreclosure.
         Thereafter, [Deutsche Bank] served [Appellants] with
         notice of the Sheriff’s sale and posted similar notice on the
         [Jonestown Premises]. [Deutsche Bank] even mailed a
         copy of the notice directly to the [Jonestown Premises],
         where [Appellants] were living. Thereafter, the Sheriffs
         duly announced the two continuances to the Sheriff’s sale.

         Just as [Appellants] argued that [Deutsche Bank] was on
         constructive notice of their interest in the property,
         [Appellants] were clearly on actual notice of the
         foreclosure proceeding and subsequent Sheriff’s sale, yet
         they chose to do nothing about it. [Appellants] made no
         attempt to pay the arrears and make the mortgage current
         so as to prevent foreclosure. [Appellants] wrote a letter to
         [Deutsche Bank] on April 12, 2011—the day of the
         Sheriff’s sale—indicating their interest in purchasing the
         [Jonestown Premises].      However, [Appellants] did not
         appear at the Sheriff’s sale, and they failed to
         communicate any further interest in purchasing the
         property for almost a year until it was purchased by
         [Appellees].

(Trial Court Opinion, filed July 8, 2014, at 7-16) (citations to record

omitted).   Furthermore, the court disposed of Appellants’ claim regarding

Attorney Christianson’s alleged conflicts of interest as follows:

         First, it presupposes that [the court] completely ignored
         the multiple roles that [Attorney Christianson] played in
         [this] case. That is simply not so. [The court] considered
         all testimony, including the fact that [Attorney
         Christianson] represented multiple parties related to the
         dispute…. Second, and more important, the fact that
         [Attorney Christianson] represented multiple parties did

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         not, by itself, cause [the court] to rule in [Appellants’]
         favor regarding the issue of notice. To the contrary, the
         evidence that [Appellants] had notice was overwhelming
         and was based upon witnesses and evidence that far
         transcended     what     [Attorney     Christianson]    alone
         represented.     Third, [the court] view[ed] [Attorney
         Christianson’s] purported conflict of interest as an issue
         that could impact his credibility and not the admissibility of
         his testimony. [Fourth] and finally, [the court] note[s]
         that [Attorney Christianson] was listed as a witness in
         [Appellees’] Pre-Trial Memorandum. At no time before or
         during trial did [Appellants] object to [Attorney
         Christianson’s] testimony based upon a conflict of interest.
         Therefore, [the] [c]ourt was not given the opportunity to
         rule that [Attorney Christianson’s] testimony should have
         been excluded based upon conflict of interest. For all of
         these reasons, [Appellants] waived their right to pursue
         the objection they are now arguing via their appeal.

(Trial Court Opinion, December 31, 2014, at 10-11). The record supports

the court’s reasoning and conclusions. Therefore, Appellants are not entitled

to relief. Accordingly, we affirm.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2015




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