J-A02018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TARANI JOHNSON AND JOYCELYN                     IN THE SUPERIOR COURT OF
JOHNSON                                               PENNSYLVANIA

                            Appellants

                       v.

BREWERY CONDOMINIUM ASSOCIATION
C/O CAMCO

                            Appellee                 No. 425 EDA 2014


               Appeal from the Order Entered on January 10, 2014
              In the Court of Common Pleas of Philadelphia County
                         Civil Division at No.: 130801012


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                               FILED MAY 13, 2015

       Tarani Johnson and Joycelyn Johnson (collectively, “the Johnsons”)

appeal the trial court’s January 10, 2014 order1 that sustained the

preliminary objections of the Brewery Condominium Association (“the

Association”) to the Johnsons’ complaint seeking to quiet title in their favor

to a condominium that the Association bought at a sheriff’s sale. The trial

court agreed with the Association that the Johnsons’ suit impermissibly

sought to collaterally attack the earlier sheriff’s sale. The Johnsons contend


____________________________________________


1
      The order is dated January 6, 2014. However, the docket reflects that
notice of the order was transmitted to the parties pursuant to Pa.R.C.P. 236
on January 10, 2014, rendering that the operative date for purpose of
appeal.
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that this suit seeks relief that is distinct from, and therefore not precluded

by, the prior proceedings. We disagree. Consequently, we affirm.

      The trial court has provided the following lengthy factual and

procedural history of this case:

      The legal action that led to the sheriff’s sale of [a condominium
      located at 870 North 28th Street, Unit 116, Philadelphia,
      Pennsylvania (“the Property”),] involved [the Association] filing a
      Confession of Judgment on October 31, 2011[,] against State
      Trustee Services LLC as [t]rustee of 28th Street Silver Apple Land
      Trust [the “Trust,”] the record owner of the Property at the time.
      The Trust was formed by Appellant Tarani Johnson, who was the
      trustee and sole beneficiary of the Trust. The Confession of
      Judgment action in the amount of $48,267.16[,] was filed
      because [the Johnsons] had failed to pay condominium
      assessments for years.       [The Association] executed on the
      Confession of Judgment and proceeded to the aforementioned
      sheriff’s sale on June 4, 2013. It was only after the sheriff’s
      sale took place that [the Johnsons] attempted to contest the
      Confession of Judgment.

      On June 4, 2013, [the Johnsons] each filed Motions to Intervene
      in the Confession of Judgment Action. On June 24, 2013, each
      of the [Johnsons] also filed Motions to Set Aside Sheriff’s Sale
      and Petitions to Open/Strike Confession of Judgment. These
      motions were all predicated on the assertion that the Property
      was never properly conveyed to the Trust, and as a result, [the
      Johnsons] continue to own the Property. This is the same
      argument presented in the instant action. On June 25, 2013,
      the Trust also filed a Motion to Set Aside Sheriff’s Sale. Thus,
      [the Johnsons] have, in their various motions, simultaneously
      asserted that the Trust never owned the Property while
      continuing to file motions in the name of the Trust, which, in and
      of itself, renders the instant [a]ppeal disingenuous. [The trial
      court] denied the Motions to Intervene by Orders dated August
      2, 2013. The rest of the Motions were denied by [the trial court]
      via Orders dated and docketed [on] August 13, 2013. [The
      Johnsons] failed to file any motions for reconsideration or
      appeals of these Orders.



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     On August 12, 2013, [the Johnsons] initiated the instant action
     to Quiet Title, asserting that they still owned the Property. On
     September 14, 2013[, the Johnsons] filed a lis pendens against
     the [P]roperty. [The Association] filed Preliminary Objections to
     the Quiet Title Complaint on September 16, 2013. Before those
     Preliminary Objections could be ruled upon, on October 5, 2013,
     [the Johnsons] filed an Amended Complaint, rendering [the
     Association’s] first set of Preliminary Objections moot.      On
     October 25, 2013, [the Association] then filed a new set of
     Preliminary Objections pertaining to the Amended Complaint. In
     these Preliminary Objections, [the Association] asserted, inter
     alia, that the instant action was an impermissible collateral
     attack on a valid sheriff’s sale.

     [The Johnsons] filed a Response to the Preliminary Objections on
     November 17, 2013, asserting that [the Association] engaged in
     “fraudulent conduct”; that the sheriff’s sale was fraudulent and
     ineffective because the sale price differed from the price [that
     the Association] actually paid for the Property; and that the deed
     conveying the property to [the Association] was defective
     because it was voided and reissued without court approval.2
     [The Johnsons] fail, however, to provide any evidence of any
     fraud besides an unsubstantiated and unverified assertion that
     their counsel is in possession of an affidavit from an unnamed
     Sheriff’s Department Deputy Sheriff, one who is allegedly
     involved in an internal affairs unit investigation that would
     allegedly demonstrate that some form of fraud had occurred in
     this matter. This alleged document has not been provided to
     [the trial court], but instead [the Johnsons] requested that the
     document be viewed in camera. However, this “request” was
     merely made as part of Exhibit B (to the Response to Preliminary
     Objections[)], and no such formal request was ever made to this
     Court. Exhibit B is comprised entirely of the following language
     on a sheet of paper with no identifying letterhead: “The affidavit
     of the Sheriff’s Department Deputy Sheriff involved in the
     internal affairs unit investigation of this matter is in the
     possession of [the Johnsons’] counsel. Due to the fact that this
     is an active, on-going investigation involving fraud and theft
     charges that may involve other parties not yet identified, [the
     Johnsons’] counsel respectfully requests that this affidavit be
     reviewed by the court in camera and placed under seal—FOR
     JUDGE’S EYES ONLY.” Without any evidence, [the trial court]
     cannot ascertain that any fraud has occurred.

       ________________

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         2
            [The Johnsons] assert that “no sale had been completed
         as [the Association] had not paid the full price for the
         Property and had only made a deposit on the Property[,]
         despite the fact that the Deed issued by the Sheriff’s Office
         stated that [the Association] had paid the full price.”
         Response to Preliminary Objections at ¶ 14.             [The
         Johnsons] also argue that “[the Association] is asserting
         ownership based upon a fraudulent [s]heriff’s [s]ale and a
         defective Deed that was voided once and reissued without
         court approval.” Id. at ¶ 39. There is no evidence in the
         record of a price discrepancy or any sort of defective deed.
         The sheriff’s deed was delivered on June 24, 2013, and the
         recording of said deed on September 17, 2013[,] shows no
         corrections. See Amended Complaint, Exh. D. These
         arguments were also made in the Amended Complaint, but
         accusations that [the Association] engaged in fraudulent
         conduct or that the sheriff’s sale was fraudulent were not
         raised until the Response to the Preliminary Objections.

      [The trial court] sustained the Preliminary Objections via an
      order dated January 6, 2014[, and filed on January 10, 2014],
      striking the lis pendens and dismissing the instant action. In
      response, [the Johnsons] filed a Notice of Appeal with the
      Superior Court on February 3, 2014[.] [V]ia an order docketed
      on February 5, 2014, and pursuant to Pa.R.A.P. 1925(b), [the
      trial] court ordered [the Johnsons] to file a Concise Statement of
      [Errors] Complained of on Appeal . . . . [The Johnsons] did so,
      filing their [concise statement] on February 20, 2014.

Trial Court Opinion (“T.C.O.”), 4/15/2014, at 1-4 (citations omitted or

modified; emphasis in original; some footnotes omitted).       The trial court

then furnished the above-excerpted opinion pursuant to Pa.R.A.P. 1925(a),

ripening the case for our consideration.

      As they did in their Rule 1925(b) statement, the Johnsons assert

seven issues for review, several of which are redundant, just as are the

corresponding arguments.      For reasons of economy, the second issue

reproduced below incorporates four issues that separately raise identical or


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closely related arguments. Issues one, three, and four, as set forth below,

corresponding respectively to the Johnsons’ first, sixth, and seventh issues

as stated, are reproduced verbatim.

      1.    Whether the trial court erred as a matter of law when it
      sustained [the Association’s] preliminary objections, dismissed
      [the Johnsons’] amended complaint[,] and struck the lis
      pendens, based upon the theories of res judicata and collateral
      estoppel[], as advanced by [the Association], since such a
      determination required the court to look at facts outside of the
      “four corners” of [the Johnsons’] amended complaint?

      2.    Whether the trial court erred as a matter of law when it
      sustained [the Association’s] preliminary objections since the
      determination by the court was based upon facts not of record in
      the instant case, failed to draw all reasonable inferences from
      the facts set forth in the amended complaint in favor of [the
      Johnsons], and refused to review or consider the facts and
      supporting evidence presented by [the Johnsons in their answer
      to [the Association’s] preliminary objections?

      3.    Whether the trial court abused its discretion when it failed
      to either review in camera, or even entertain [the Johnsons’]
      request for an in camera review of, the affidavit of Deputy
      Sheriff Parsons that was referenced to [sic] by [the Johnsons] in
      support of their answer to [the Association’s] preliminary
      objections?

      4.     Whether the trial court demonstrated bias toward[] [the
      Johnsons] in sustaining [the Association’s] preliminary objections
      where the trial judge who decided the instant preliminary
      objections was the same judge who presided over the motions
      filed by [the Johnsons] in the prior case and allowed her opinions
      formulated against [the Johnsons] in the prior case to affect her
      decision in the instant case?

Brief for the Johnsons at 11-12.

      Our well-settled standard of review of an order sustaining or denying

preliminary objections is as follows:



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      “Our standard of review of an order of the trial court overruling
      or granting preliminary objections is to determine whether the
      trial court committed an error of law. When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.”
      De Lage Landen Fin’l Servs., Inc., v. Urban P'ship, LLC,
      903 A.2d 586, 589 (Pa. Super. 2006).

         “Preliminary objections in the nature of a demurrer test
         the legal sufficiency of the complaint.” When considering
         preliminary objections, all material facts set forth in the
         challenged pleadings are admitted as true, as well as all
         inferences reasonably deducible therefrom. Preliminary
         objections which seek the dismissal of a cause of action
         should be sustained only in cases in which it is clear and
         free from doubt that the pleader will be unable to prove
         facts legally sufficient to establish the right to relief. If any
         doubt exists as to whether a demurrer should be
         sustained, it should be resolved in favor of overruling the
         preliminary objections.

      Hykes v. Hughes, 835 A.2d 382, 383 (Pa. Super. 2003)
      (citations omitted).

Haun v. Comm. Health Sys., Inc., 14 A.3d 120, 123 (Pa. Super. 2011)

(citations modified). Because a demurrer tests solely the adequacy of the

pleadings, “no testimony or other evidence outside of the complaint may be

considered to dispose of the legal issues presented by a demurrer.” Mellon

Bank, N.A., v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994). Moreover,

“[w]hen reviewing a trial court’s disposition of preliminary objections, this

Court is only obligated to consider as true all of the well-pleaded material

facts set forth in the complaint.           This Court is not required to accept

allegations   to   the    extent    that   they   constitute   conclusions   of    law.”

Glassmere      Fuel      Serv.,    Inc.,   v.   Clear,   900   A.2d   398,   404    n.2




                                           -6-
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(Pa. Super. 2006) (emphasis in original; citations omitted); accord Joyce v.

Erie Ins. Exch., 74 A.3d 157, 168 (Pa. Super. 2013).

      With this standard in mind, we begin our discussion with the facts as

pleaded by the Johnsons in their amended complaint, granting them the full

benefit of their factual averments and all favorable factual inferences

therefrom.    Tarani Johnson purchased the Property on April 4, 2004.

Amended Complaint at 1 ¶ 5 (unnumbered). By deed recorded on July 15,

2004, Tarani Johnson conveyed a one-half undivided interest in the Property

to her mother, Joycelyn Johnson. Id. at 1 ¶ 6. On September 18, 2007, the

Johnsons “attempted to convey the Premises, by Quit Claim Deed, to State

Trustee Services, LLC[,] as Trustee of 28th St. Silver Apple Land Trust

(hereinafter “the Trust”) . . . .   [The Trust] is a trust wherein [Tarani

Johnson] is a named beneficiary.”      Id. at 1 ¶ 7.   In October 2011, the

Association filed a confession of judgment against the Trust “based upon an

alleged breach of a condominium association agreement wherein [the

Johnsons], or the current owner of [the Property], purportedly agreed to pay

certain fees to the [A]ssociation owed by virtue of ownership of a unit in the

[Association’s] condominium complex.”      Id. at 1-2 ¶ 8.   The Association

then voluntarily stayed execution on “the confessed judgment against the

Trust and allowed [Tarani Johnson] to attempt to sell the [Property] through

[a] private sale.” Id.at 2 ¶ 9.

      In August 2012, Tarani Johnson received an offer to purchase the

Property from Sandra Wang, a vice president of the Association, through

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Wang’s business entity. “Pursuant to that offer, [the Association] performed

a title search on the [Property] and discovered that the Quit Claim Deed that

attempted to convey title of the [Property] to the Trust was defective and

failed to pass title to the Trust.” Id. at 2 ¶ 10.

       Upon learning of the defective title in August 2012, [the
       Association], through its agents, attempted to have [the
       Johnsons] sign a corrective [d]eed that correctly conveyed title
       to the Trust. [The Johnsons] refused to execute that [d]eed
       and, instead, executed and recorded a corrective [d]eed, dated
       November 8, 2012[,] and recorded November 8, 2012 . . .,
       [that] conveyed title to the [Property] from the Trust to [the
       Johnsons].

Id. at 2 ¶ 11.2

       Thereafter, the Association executed on the confessed judgment

against the Trust, seeking to have the Property sold at a sheriff’s sale.

However, the court ordered a stay of the April 2013 sale, and, on or about

June 4, 2013, the Property was “allegedly purchased by [the Association’s]

attorney . . . on behalf of [the Association] for $21,600[,] as evidenced by

____________________________________________


2
       Although the Johnsons attached a copy of this “corrective deed” to
their amended complaint, it is unclear how, if they are correct that the
Property had never been conveyed properly to the Trust, the Trust could
have conveyed the Property back to the Johnsons. We also note that, while
the Johnsons saw fit to attempt to clarify their individual ownership interests
in the Property, they took no other action to address the pending confessed
judgment or otherwise remove the obvious cloud from the title to the
Property until after the sheriff’s sale, upon the day of which they finally
sought untimely to intervene in that action. Furthermore, the Johnsons do
not contend that they did not have notice of the confessed judgment or
sheriff’s sale proceedings.



                                           -8-
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the [d]eed from the Sheriff of Philadelphia County, dated June 24, 2013[,]

and recorded July 18, 2013.”         Id. at 2 ¶ 12.     At the sheriff’s sale, the

Association paid only $3,016 “and failed to complete the [s]heriff [s]ale

transaction despite the fact that the [s]heriff’s [d]eed stated that the sum of

$21,600 was paid at the time of the June 4, 2013 [sheriff’s s]ale.” Id. at 2

¶ 13.

        In the pleadings that follow these, the Johnsons assert a litany of

putative reasons that the sale was “defective and invalid,” which consist in

part of conclusions of law that our standard of review does not require us to

assume are correct, including the following:

           The Association failed to pay the full price for the Property.

           The Association failed to file a writ of possession with the
            Philadelphia Sheriff before the sale.

           The Association failed to file a complaint in ejectment against
            the Trust or the Johnsons, as required by rule to effectuate
            the purchase.

           In violation of governing rules, in July 2013, the sheriff’s
            department voided the “defective” sheriff’s deed via the
            Philadelphia Department of Records, as confirmed by an
            August 2, 2013 letter from that department. Following the
            Johnsons’ commencement of this action by complaint on
            August 12, 2013, the Association “somehow obtained a
            reissuance of the June 24, 2013 defective deed” and
            rerecorded it on September 17, 2013.

Id. at 2-3 ¶¶ 13-19.       In closing, the Johnsons insist that the Association

“has no right, title or interest, at law or in equity, with respect to the

[Property].” Id. at 3 ¶ 20.



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       In    response    to   the   amended        complaint,   the     Association   filed

preliminary objections. Therein, they asserted that the Johnsons’ and/or the

Trust’s rights in the Property had been extinguished by sheriff’s sale. Thus,

the Johnsons could not commence a quiet title action under Pa.R.C.P. 10613

because the court already had determined the ownership of the property,

rendering the instant action an impermissible collateral attack on the earlier

sheriff’s sale. See Memorandum of Law in Support of Preliminary Objections

by the Association at 7 (unnumbered). Because a sheriff’s sale can only be

attacked in a collateral proceeding in the presence of fraud or for want of the

sheriff’s authority to complete the sale, neither of which the Johnsons

pleaded adequately within the four corners of their amended complaint, the

Johnsons failed to state a claim upon which relief may be granted.                     Id.

(citing Keystone Collieries v. Mudge, 100 A. 526, 527 (Pa. 1917)).

       The    trial   court   offered   two    related   bases    for    sustaining    the

Association’s preliminary objections:          First, the Johnsons “have no legal

interest in the Property since the deed to the Property was delivered to [the

Association] following the sheriff’s sale.” Second, the Johnson’s “Quiet Title

action is an impermissible collateral attack on said sheriff’s sale.”             T.C.O.

at 5. Because we find that the trial court’s second basis for sustaining the


____________________________________________


3
      Rule 1061 provides, in relevant part, that an action to quiet title may
be brought “to determine any right, lien, title or interest in” property.
Pa.R.C.P. 1061(b)(2).



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Association’s preliminary objections by itself requires us to affirm the trial

court’s ruling, we review only that aspect of its reasoning, which the trial

court related as follows:

      [T]he instant Quiet Title Action is an improper collateral attack
      on the underlying confession of judgment action. A sheriff’s sale
      and the underlying judgment normally may not be challenged in
      a collateral proceeding, including by a later action to quiet title.
      Roberts v. Gibson, 251 A.2d 799, 800 (Pa. Super. 1969) (citing
      Caplan v. Kent, 76 A.2d 764 (Pa. 1950)). The acknowledgment
      of a sheriff’s deed passes valid title except in limited situations of
      fraud or where there is a lack of authority conducting a sale.
      Roberts, 251 A.2d at 801.             In the instant matter, [the
      Johnsons] have attempted to assert that the sheriff’s sale was
      predicated upon fraud, but have failed to provide any evidence
      whatsoever of fraudulent activity.          [The Johnsons] have
      exhausted their attempts to challenge the sheriff’s sale in the
      initial proceeding and are not entitled to continue to challenge
      the final result.

T.C.O. at 6.

      In their first and second issues, the Johnsons contend that the trial

court committed an error of law when it sustained the Association’s

preliminary objections on the basis of res judicata and collateral estoppel.

They further contend that the trial court exceeded its limited review of the

contents of the four corners of the complaint by taking judicial notice of the

prior confession of judgment and sheriff’s sale proceedings.          “[T]he trial

court only looked to [the Johnsons’] amended complaint to identify facts that

were related to those allegedly pled in the Confession Action. The trial court

completely ignored the facts set forth in the Amended Complaint that

supported the issues . . . related to the first and second Sheriff’s Deed(s).”


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Brief for the Johnsons at 18 (citing Kelly v. Kelly, 887 A.2d 788, 791

(Pa. Super. 2005)).

      We may dispense quickly with the Johnsons’ first issue. Although the

Association raised res judicata in its preliminary objections, the trial court

did not purport to rule against the Johnsons on that basis.          Whether a

collateral attack on a sheriff’s sale will lie presents a distinct issue from res

judicata, as such.    Thus, the Johnsons’ first issue warrants no further

discussion.

      The Johnsons’ argument in support of their second issue, concerning

the trial court’s taking notice of the confessed judgment and sheriff’s sale

proceedings, fares no better. Indeed, the case they cite in support of their

claim that the trial court erred does more to undermine their argument than

to support it.    In Kelly, this Court held that, “[w]hen considering a

demurrer[,] a court cannot ordinarily take judicial notice in one case of the

records of another case, whether in another court or its own, even though

the contents of those records may be known to the court.” 887 A.2d at 791

(citations and internal quotation marks omitted).         However, this Court

further elaborated that, if the appellant’s complaint “reference[d] . . . the

prior action,” then “it would be appropriate for the court to take notice of it.”

Id. Similarly, in 220 Partnership v. Philadelphia Electric Co., 650 A.2d

1094 (Pa. Super. 1994), this Court made the following observation:

      [A] court must severely restrict the principle of judicial notice, as
      the purpose of a demurrer is to challenge the legal basis for the
      complaint, not its factual truthfulness. . . . A court, in ruling on

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       a demurrer, should refrain from noticing any fact [that] is not
       literally indisputable and which the parties could not reasonably
       raise in further pleadings or on argument at trial.

Id. at 1097 (citations and internal quotation marks omitted).                  Thus, the

general preclusion of evidence of collateral proceedings yields to allow

“notice of a fact [that] . . . is incorporated into the complaint by reference to

a prior court action.” Id.

       Although in this case the Johnsons omit specifically to refer to, e.g.,

certain of their and the Trust’s filings in connection with the sheriff’s sale,

they   nonetheless      refer    at   length   to   the   sheriff’s   sale   proceedings,

incorporating all of the most critical procedural steps in that process into

their complaint.      Having introduced the facts and details of those prior

actions in their own complaint, the Johnsons left the trial court a simple

choice: Accept these selective references to the prior proceedings without

further scrutiny, or take judicial notice of the proceedings in toto to provide

context for evaluating the Johnsons’ claims relative to that prior action,

which lay at the heart of the Johnsons’ instant quiet title action. Nothing in

our case law suggests that one can rely pervasively upon past proceedings

to support one’s complaint while maintaining that the trial court errs in

considering those proceedings in their full context.4

____________________________________________


4
      The Johnsons object to the trial court’s observation that they declined
to appeal the trial court’s denial of their motions to intervene in the sheriff’s
sale of the Property. They argue, based upon a note to Pa.R.A.P. 341, that
they were barred categorically from doing so. See, inter alia, Brief for the
(Footnote Continued Next Page)


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      In a related contention regarding the propriety of the trial court’s

review of the Association’s preliminary objections, and specifically the

recurring claim that the court improperly looked outside the Johnsons’

pleading and made impermissible findings of disputed fact, the Johnsons

argue that the trial court improperly assumed there was the one sheriff’s

deed, delivered on June 2, 2013, rather than the two posited by the

Johnsons.

      The unrefuted facts presented to the trial court were the facts
      contained in the amended complaint related to the first and
      second deeds. Despite this fact, the trial court completely
      ignored these facts of record and determined that there was only
      one deed that was recorded once. It cannot be said that this
      determination by the trial court was a “reasonable inference”
      deducible from the well-pleaded material facts in the amended
      complaint since this finding is in direct contravention to the facts
      recited in the [complaint].

Brief for the Johnsons at 22 (citations omitted).       These portions of the

complaint are shot through with conclusions of law that neither the trial


                       _______________________
(Footnote Continued)

Johnsons at 21 (citing T.C.O. at 6). However, the note to Rule 341 also lists
a series of orders that, while they are not appealable as final orders, might
be appealed under Rules 312 (interlocutory appeals by permission) or 313
(collateral orders). The Johnsons did not seek recourse to either of these
provisions and do not now acknowledge these familiar methods by which
such orders may be appealed. Accordingly, it is incorrect that the Johnsons
could not promptly, non-frivolously have sought appellate review of the trial
court’s denial of their motions to intervene and to open or strike the
confession of judgment. Thus, the trial court did not err in noting that the
Johnsons’ voluntarily declined to exhaust the potential appellate remedies
available to them.



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court nor this court is obligated to accept as true or construe in favor of the

complainant. See Glassmere Fuel Serv., supra.

      In tandem with the Johnsons’ second issue, we also must consider

what we have renumbered the Johnsons’ third issue. Therein, the Johnsons

argue that the trial court improperly refused to consider a putative request

to the court to review in camera and under seal an affidavit from an

unnamed deputy sheriff that was attached as exhibit B to the Johnsons’ filing

in opposition to the Association’s preliminary objections.      The unsworn,

unsigned document in question is sandwiched as exhibit B between a

transcript of a rule to show cause hearing in the sheriff’s sale proceedings

and a reproduction of the amended complaint. It provides in full:

      The affidavit of the Sheriff’s Department Deputy Sheriff
      involved in the internal affairs unit investigation of this
      matter is in the possession of Plaintiff’s counsel.

      Due to the fact that this is an active, on-going
      investigation involving fraud and theft charges that may
      involve other parties not yet identified, [the Johnsons’]
      counsel respectfully requests that this affidavit be
      reviewed by the court in camera and placed under seal—
      FOR JUDGE’S EYES ONLY.

Johnsons’ Memorandum of Law in Support of their Response to the

Association’s Preliminary Objections, Exh. B (emphasis in original).

      The trial court acknowledged the existence of this attachment, but

emphasized that the Johnsons made no proper request for the trial court to

review any such affidavit in camera or to admit it under seal.         The court

explained that “[w]ithout any evidence, [the trial court] cannot ascertain


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that any fraud has occurred.” T.C.O. at 3. We add to the trial court’s apt

observation that the document itself is hopelessly vague regarding the

putative affidavit to which it refers and offers no proffer regarding how the

affiant would inform the Johnsons’ claims or render the Association’s

preliminary objections unsustainable.5

       This brings our discussion full circle. Labor as the Johnsons might to

distinguish this claim from the earlier confession of judgment and sheriff’s

sale proceedings, it is simply unreasonable, in light of the Johnsons’

unambiguous pleadings, to ask a court to ignore the fact that the amended

complaint’s entire substance is comprised of a lengthy attack on the earlier

proceedings that led to the legally consummated sheriff’s sale.     That is to

say, it must be understood as a collateral attack on the sheriff’s sale, no

matter how elliptically fashioned.
____________________________________________


5
       In their response to the Association’s preliminary objections, the
Johnsons cite the exhibit in support of their averments that the sheriff’s deed
to the Property was delivered in violation of governing rules because the
listed purchase price allegedly was not remitted in full to the sheriff. See
Johnsons’ Response to the Association’s Preliminary Objections at 3 ¶ 10, 6
¶ 39; Johnsons’ Memorandum of Law in Support of Response to the
Association’s Preliminary Objections at 2 (unnumbered). In none of these
instances do the Johnsons indicate how the putative sheriff’s affidavit to
which the exhibit refers would support those claims. Moreover, averments
regarding the sheriff’s compliance with governing rules that the Johnsons
neither cite nor describe are averments of law to which no deference is
owed. Nothing in the response, the brief, or in the vague implications
regarding what the alleged sheriff’s affidavit might say contravenes or
disputes the fact that a sheriff’s deed for the Property was delivered to the
Association on June 24, 2013, nearly two months before the Johnsons filed
the instant complaint.



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      About such a collateral attack, our Court has spoken clearly:

      [A]n attack on a sheriff’s sale usually cannot be made in a
      collateral proceeding.      In Caplan v. Kent, 76 A.2d 764
      (Pa. 1950), it was held that a sheriff’s return, regular on its face,
      could not be attacked collaterally in a bill in equity to quiet title.
      “Confirmation of a sheriff’s deed cures irregularities and defects,
      which make the sale voidable * * *.”               McLanahan v.
      Goodman, 108 A. 206, 208 (Pa. 1919).                In Mencke v.
      Rosenberg, 51 A. 767, 769 (Pa. 1902), the court said in
      reference to an ejectment action:           “This is a proceeding
      collateral to that under which the land was sold.                The
      acknowledgment of the sheriff’s deed passed a valid title to the
      purchaser, unless there was fraud or want of authority in the
      sale.” After reiterating this rule in Knox v. Noggle, 196 A. 18
      (Pa. 1938), the court added: “(T)he distinction is * * * between
      irregularities in the proceedings, misdescriptions of the property,
      the sale of several tracts as an entirety, defect of title, and
      similar objection, on the one hand, all of which are foreclosed
      as defenses by delivery of the sheriff’s deed, and, on the
      other, attacks upon the sale on the ground that it was
      unauthorized, or vitiated by fraud, in which cases the right of
      redress survives such delivery.” 196 A. at 19-20.

Roberts, 251 A.2d at 800-01 (citations modified; emphasis added).

      To survive a demurrer, a plaintiff asserting fraud must plead the

factual basis for that claim with particularity:

      “In order to protect those against whom generalized and
      unsupported fraud may be levied, the Pennsylvania Rules of Civil
      Procedure require that fraud be averred with particularity.”
      Presbyterian Med. Cen. v. Budd, 832 A.2d 1066, 1072
      (Pa Super. 2003)    (quotation     marks     omitted);     see
      Pa.R.C.P. 1019(b).

         While it is impossible to establish precise standards as to
         the degree of particularity required in a given situation,
         two conditions must always be met. The pleadings must
         adequately explain the nature of the claim to the opposing
         party so as to permit him to prepare a defense and they



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          must be sufficient to convince the               court   that   the
          averments are not merely subterfuge.

       Kelshaw, 611 A.2d at 1235 (quoting Bata v. Central Penn
       Nat’l Bank of Phila., 224 A.2d 174, 179 (Pa. 1966)).

Youndt v. First Nat’l Bank of Port Allegany, 868 A.2d 539, 544-45

(Pa. Super. 2005) (citations modified).

       The Johnsons’ amended complaint does not even contain the word

“fraud” or allegations that, read in the light most favorable to the Johnsons,

provide a factual basis upon which it might be found that the Association,

the sheriff’s office, or anyone else privy to the events underlying this case

committed fraud.        Although allegations of “fraud” finally appear in the

Johnsons’ response to the Association’s preliminary objections, the Johnsons’

bare reliance upon an unfurnished affidavit without any material proffer does

not   provide     the    particularity    necessary   to    survive   a    demurrer.6

Consequently, the Johnsons failed to plead a claim of fraud sufficient to

enable them to proceed with their collateral attack on the sheriff’s sale of the

Property.

       To the extent the Johnsons’ argument sounds in what the Knox Court

identified as a “defect of title,” it is clear that the undisputed delivery of the
____________________________________________


6
        Moreover, as the Johnsons repeatedly emphasize in other connections,
it is the complaint alone that governs whether a demurrer will be sustained.
Allegations of fraud and putative support for same that do not appear in the
complaint are immaterial to the legal sufficiency of the pleading. See
Fabinyi, 650 A.2d at 899 (“[N]o testimony or other evidence outside of the
complaint may be considered to dispose of the legal issues presented by a
demurrer.”).



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sheriff’s deed in this case vitiated that defect such that no collateral attack

on the sale would lie. See T.C.O. at 5-6 (noting that the sheriff’s deed was

acknowledged by the Association on June 24, 2013); Roberts, 251 A.2d at

800-01 (noting that any defect of title conveyed following a sheriff’s sale is

cured by delivery of the deed).      The Johnsons provide no case law to the

contrary, and they make no effort to preclude the application of this bedrock

principle in the instant case.       Consequently, the Johnsons’ numerous

challenges to the trial court’s ruling fail before the limitations Pennsylvania

courts employ to ensure that sheriff’s sales may be attacked in collateral

proceedings only when the underlying proceedings rendered the sale void

rather than merely voidable.          See Roberts, supra.         The Johnsons’

complaint’s factual averments, even read in the most favorable light, do not

establish that the sale at issue was void on its face or the product of fraud.

At most, the averments establish that the title was voidable by virtue of one

or more defects, which were cured as a matter of law upon delivery of the

title to the Association. Consequently, the instant action is an impermissible

collateral attack on that sale, and the trial court did not err in so ruling.

      This leaves only what we have denominated the Johnsons’ fourth

issue. Therein, the Johnsons contend that, because they failed to achieve

the desired result during the earlier confession of judgment and sheriff’s sale

proceedings, which were heard before the same trial judge as the instant

matter, the judge should have been disqualified from deciding the instant

case. See Brief for the Johnsons at 27. Acknowledging that, typically, the

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issue of “judicial bias” must be presented first before the trial court, the

Johnsons attempt to sidestep this issue as follows:

      [The Johnsons] were unable to raise the issue of bias before the
      trial [c]ourt since evidence of bias was not revealed until after
      the court ruled on [the Association’s] preliminary objections.
      Prior to that time, there was no reason to believe that the trial
      court’s review, and final decision, in the instant case would rely
      solely upon [the Association’s] assertions as set forth in its
      preliminary objections and upon the trial court’s findings and
      opinions developed in a prior case that did not involve [the
      Johnsons].

Id. at 27.    The Johnsons go on to note that the litany of complained-of

decisions made by the trial court—all of which we have found do not

constitute errors of law or abuses of discretion—“demonstrate the type of

egregious judicial misconduct proscribed by the appellate court[s].         This

utter disregard of the facts by the trial court[] as set forth in [the Johnsons’]

amended complaint[] clearly demonstrated bias against [the Johnsons].”

Id.   In short, the Johnsons acknowledge that nothing about the earlier

decision by itself signaled bias, but submit that the mere fact of a second

adverse ruling in this case does precisely that. Having found that the trial

court’s ruling was necessitated by the law precluding collateral attacks on

sheriff’s sales, we can conceive of no basis upon which to find that the trial

court acted out of bias. This issue, too, lacks merit.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2015




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