J-S20006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHEN J. BYERS                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ERNEST E. LIGGETT AND MARILYN
KOSTIK LIGGETT

                                                      No. 361 WDA 2015


               Appeal from the Order Entered February 5, 2015
              In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): gd09-013539


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                             FILED APRIL 29, 2016

        Appellant, Stephen J. Byers, appeals from the order directing him to

mark a judgment satisfied and denying, as moot, his petition to set fair

market value for the purpose of a deficiency judgment. Byers challenges the

trial court’s determination that the six month statute of limitations on filing

for a deficiency judgment starts when the sheriff first attempts to file the

deed for recording. We agree that the clear language of the statute comports




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*
    Retired Senior Judge assigned to the Superior Court.
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with Byers’s interpretation, and therefore, vacate and remand for further

proceedings.1

       By our count, this is the fifth time this case has been before this Court

on appeal. As such, we note that this case appears to be coming to a close,

despite a long line of attempts by the Liggetts to postpone a sheriff’s sale of

real property located in Allegheny County. In the fall of 2006, the Liggetts

obtained short-term loans from Byers, along with an agreement to purchase

additional parcels of real property located in Brownsville, Fayette County for

use in real estate development. When the Liggetts failed to repay the loans

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1
  The Liggetts, in response to this appeal, have filed a motion, pursuant to
Pa.R.A.P. 2188, to dismiss or quash this appeal for failure of Byers to file a
designation of reproduced record. Pursuant to the Rules of Appellate
Procedure, this Court has the discretion to quash or dismiss an appeal when
the defects in an appellant’s brief or reproduced record are substantial. See
Pa.R.A.P. 2101. Pennsylvania Rule of Appellate Procedure 2188 states, in
relevant part:

       If an appellant fails to file his designation of reproduced record,
       brief or any required reproduced record within the time
       prescribed by these rules, or within the time as extended, an
       appellee may move for dismissal of the matter. …

Pa.R.A.P. 2188.

Here, the Liggets have failed to demonstrate any hindrance to our review of
this case or other prejudice resulting from Byers’s failure to file a designation
of reproduced record. As such, we decline to dismiss or quash Byers’s
appeal. See Morgan Guaranty Trust Company of New York v. Mowl,
705 A.2d 923, 924 n.1 (Pa. Super. 1998) (excusing infractions of rules of
appellate procedure where the failure to file a timely designation was a
minor infraction and which did not hinder meaningful appellate review).
Accordingly, we deny the motion to dismiss or quash the appeal.



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or purchase the additional property, the parties entered into a settlement

agreement in the Court of Common Pleas of Fayette County that required

the Liggetts to either pay Byers a specified sum of money within 45 days or

have judgment entered against them. When the Liggetts did not pay the

money within the agreed upon timeframe, Byers entered judgment against

them in Fayette County for $145,000.00.

      In July 2009, Byers transferred the judgment to Allegheny County, and

issued a Writ of Execution for the sale of personalty and realty located at 43

Brownstone Road, Pittsburgh, Pennsylvania 15235. Over the following years,

the Liggetts filed various motions to stay or obviate the proceedings, all of

which have been denied by the trial court and affirmed by this Court. On

January 7, 2014, Byers was the successful bidder on the property at a

sheriff’s sale. Byers asserts that following the sale, the recording office

refused to file the deed due to a dispute over realty transfer taxes and the

legal effect of pending appeals filed by the Liggetts. Byers further asserts

that he received the deed in July or August 2015.

      After this Court quashed the Liggetts’ fifth appeal, the Liggetts filed a

motion to compel Byers to mark the judgment as satisfied. Byers responded

to the Liggetts’ motion, and also filed a petition to set fair market value for

purposes of a deficiency judgment on December 2, 2014. The Liggetts

argued that Byers’s petition to set fair market value was untimely, and the




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trial court agreed, granting the Liggetts’ motion to compel and dismissing

Byers’s petition. This timely appeal followed.

      On appeal, Byers contends that the trial court misconstrued the

applicable statute regarding the limitations period. We review claims arising

from deficiency judgment proceedings to determine if the evidence is

sufficient to support the trial court’s determination, or whether the trial court

committed an error of law. See Bryn Mawr Trust Co. v. Healy, 667 A.2d

719, 721 (Pa. Super. 1995). In the present case, the issue is one of

statutory interpretation, which is a matter of law. Thus, our standard of

review is de novo and our scope of review is plenary. See Commonwealth

v. Spence, 91 A.3d 44, 46 (Pa. 2014) (citation omitted).

      When construing a [statutory provision] utilized by the General
      Assembly in a statute, our primary goal is “to ascertain and
      effectuate the intention of the General Assembly.” 1 Pa.C.S. §
      1921(a). “Every statute shall be construed, if possible, to give
      effect to all its provisions.” Id. However, “[w]hen the words of a
      statute are clear and free from all ambiguity, the letter of it is
      not to be disregarded under the pretext of pursuing its spirit. Id.
      § 1921(b). “Words and phrases shall be construed according to
      rules of grammar and according to their common and approved
      usage.” Id. § 1903(a). In other words, if a term is clear and
      unambiguous, we are prohibited from assigning a meaning to
      that term that differs from its common everyday usage for the
      purpose of effectuating the legislature’s intent.

Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super. 2014).

      The statute at issue here is 42 Pa.C.S.A. § 5522(b)(2), which provides,

in relevant part, for a six month limitation on “[a] petition for the

establishment of a deficiency judgment following execution and delivery of


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the sheriff’s deed for the property sold in connection with … execution

proceedings.” In particular, we are concerned with the term “delivery,” as

construction of this term forms the basis of the trial court’s decision.

      The trial court concluded that this term references the date that the

sheriff’s office initially files the deed for recording. In support of this

interpretation, the trial court correctly observed that the statutes dealing

with deficiency judgments are to be liberally construed in favor of debtors.

See Fidelity Bank, N.A. v. Bourger, 663 A.2d 213, 215 (Pa. Super. 1995).

However, even the most liberal of constructions in favor of debtors such as

the Liggetts cannot support the trial court’s conclusion in this matter.

      Previous versions of Section 5522(b)(2) provided that the six month

limitation period began “following the sale of the collateral of the debtor…”

Pennsylvania courts consistently construed this provision to mean that the

limitation period did not begin until the deed was delivered to the successful

bidder. See Marx Realty & Improvement Co. v. Boulevard Center,

Inc., 156 A.2d 827, 830 (Pa. 1959); Delaware Valley Factors v. G.B.

Echenhoffer Co., Inc., 313 A.2d 318, 321 (Pa. Super. 1973); Fidelity

Bank, N.A., 663 A.2d at 216. The trial court concludes that when Section




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5522(b)(2) was amended in 2005,2 the established precedent was no longer

controlling.

       In reviewing the language chosen by the legislature, we can divine no

intent to overrule the existing precedent. In fact, the legislature added the

term “delivery” in apparent recognition of the courts’ construction of the

term “sale” to include a requirement of “delivery.” Furthermore, neither the

Liggetts nor the trial court have identified any legislative history that would

support a conclusion that the legislature intended to overrule Marx and its

progeny. We therefore conclude that Marx and its progeny are controlling,

and that therefore the trial court erred in holding that the limitations period

began running when the sheriff’s office initially filed the deed for recording.

As there is no indication in the record of when Byers received the deed,

other than Byers’s own assertions in his affidavit, we vacate and remand for

such proceedings as are necessary for the trial court to determine this date

and then proceed according to law.

       Order vacated. Motion to dismiss or quash denied. Case remanded for

further    proceedings      consistent     with   this   memorandum.   Jurisdiction

relinquished.

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2
  The 2005 amendments were subsequently stricken as unconstitutional for
violating the single subject rule. See Commonwealth v. Neiman, 84 A.3d
603 (Pa. 2013). The Pennsylvania legislature reinstated a substantially
similar amendment in 2014, and made it retroactive to 2005. For ease of
reading, we will refer to the amendment as the 2005 amendment.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2016




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