J-A28005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LASALLE BANK NATIONAL ASSOCIATION                   IN THE SUPERIOR COURT OF
AS TRUSTEE FOR CERTIFICATE                                PENNSYLVANIA
HOLDERS OF EMC MORTGAGE LOAN
TRUST 2004-A MORTGAGE LOAN PASS-
THROUGH CERTIFICATES, SERIES 2004-
A

                            Appellee

                      v.

SANDRA WHITMAN

                            Appellant                    No. 951 EDA 2014


                  Appeal from the Order February 25, 2014
              In the Court of Common Pleas of Chester County
                     Civil Division at No(s): 2012-08303


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 12, 2014

      Appellant, Sandra Whitman, appeals pro se from the order entered in

the Chester County Court of Common Pleas, which denied her petition to

open the default judgment in this ejectment action, entered in favor of

Appellee, LaSalle Bank National Association as Trustee for Certificate Holders

of   EMC   Mortgage        Loan   Trust   2004-A   Mortgage   Loan   Pass-Through

Certificates, Series 2004-A. We affirm.

      Appellee commenced a mortgage foreclosure action in 2006 against

Appellant and her husband (who is now deceased). On September 6, 2007,

the court entered judgment in favor of Appellee. Appellant’s real property
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was sold at a sheriff’s sale on October 16, 2008, and the sheriff

subsequently recorded the deed.

      Appellee commenced an ejectment action against Appellant on August

8, 2012. The court entered a default judgment against Appellant on April

23, 2013, due to Appellant’s failure to answer the complaint.     On May 6,

2013, Appellant filed a pro se petition to open the default judgment. The

court held an evidentiary hearing on November 18, 2013. In support of her

petition to open, Appellant argued that the sheriff (who conducted the sale

of her property in the foreclosure action and made service of process in the

ejectment action) had failed to make certain required oaths prior to taking

office.   On this basis, Appellant contended that all acts by the sheriff,

including service of process in the ejectment action, were “faulty” and

deprived the court of subject matter jurisdiction.   At the conclusion of the

hearing, the court deferred its ruling so the parties could review the

transcript and file post-hearing briefs.

      On December 27, 2013, before the court rendered its decision on

Appellant’s petition to open, Appellant filed a motion for the court to take

judicial notice of two videos which, Appellant alleged, depicted the sheriff

taking incomplete public oaths of office.    The sheriff filed a petition to

intervene on January 14, 2014, which the court granted. On February 25,

2014, the court entered an order denying Appellant’s motion for judicial

notice and denying the petition to open default judgment. Appellant timely


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filed a pro se notice of appeal on March 26, 2014. The next day, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).       Following a grant of extension,

Appellant timely complied.

      Appellant raises one issue for our review:

         WHETHER    THE    [TRIAL]  COURT   ERRED   AND/OR
         OTHERWISE ABUSED ITS DISCRETION IN DENYING
         [APPELLANT’S]    MOTION    FOR   JUDICIAL   NOTICE
         CONTAINING VIDEO EVIDENCE OF THE OATH-SWEARING
         CEREMONIES     IN   QUESTION   WITH   RESPECT   TO
         [APPELLANT’S] PETITION TO OPEN?

(Appellant’s Brief at 5).

      Preliminarily, we observe generally that issues not raised in a Rule

1925 statement will be deemed waived. HSBC Bank, NA v. Donaghy, 101

A.3d 129 (Pa.Super. 2014). An appellant’s concise statement must properly

specify the error to be addressed on appeal. Commonwealth v. Dowling,

778 A.2d 683 (Pa.Super. 2001). In other words, the Rule 1925 statement

must be “specific enough for the trial court to identify and address the issue

[an appellant] wishe[s] to raise on appeal.”   Commonwealth v. Reeves,

907 A.2d 1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956

(2007). “[A] [c]oncise [s]tatement which is too vague to allow the court to

identify the issues raised on appeal is the functional equivalent of no

[c]oncise [s]tatement at all.” Id. The court’s review and legal analysis can

be fatally impaired when the court has to guess at the issues on appeal. Id.

Thus, if a concise statement is too vague, the court may find waiver and

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disregard any argument. Id. See also In re A.B., 63 A.3d 345 (Pa.Super.

2013) (stating Rule 1925(b) statement must be specific enough for court to

identify and address issue on review).

      Instantly, Appellant presented her issue in her concise statement as

follows:

           Whether the lower court erred and/or otherwise abused its
           discretion in denying Appellant[’s] evidence of video(s)
           taken by notary of the swearing-in ceremonies. This would
           have clearly shown that [the sheriff] willfully failed to be
           sworn and subscribed to the legislatively mandated oaths
           of office as required by law; and, would have presented
           clear and convincing evidence that [the sheriff]
           intentionally [misled] the lower court via perjured
           testimony during a hearing on November 18, 2013 that
           was on the record.

(Appellant’s Rule 1925(b) Statement, filed May 9, 2014, at 2 ¶4) (emphasis

in original). In its Rule 1925(a) opinion, the trial court deemed this issue

waived for vagueness, explaining: “[Appellant] fails to state any basis for

her claim that [the court] erred; her generalized statement does not permit

any further explanation or response. [Appellant’s] broad statement amounts

to nothing more than a claim that the order appealed from was wrong and,

as such, preserves no issue for review.” (Trial Court Opinion, filed May 30,

2014, at 2-3). In all fairness to Appellant, however, we think the issue was

preserved plus the trial court addressed it in its order denying Appellant’s

motion for judicial notice.

      Appellant argues the trial court could take judicial notice of the videos

because the oath-swearing ceremonies shown on the videos took place

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within the court’s territorial jurisdiction of Chester County. Appellant asserts

the parties cannot dispute that the ceremonies took place.            Appellant

emphasizes that the individuals on the videos (two Pennsylvania Court of

Common Pleas judges and the sheriff) identify themselves, and the orator on

the videos announces the date, location, time, and purpose of the oath

swearing ceremonies.         Appellant concludes the trial court erred when it

denied her motion for judicial notice, and this Court must grant appropriate

relief.1 We disagree.

       Our review of a trial court’s denial of a petition to open default

judgment implicates the following legal principles:

          In general, a default judgment may be opened when the
          moving party establishes three requirements: (1) a prompt
          filing of a petition to open the default judgment; (2) a
          meritorious defense; and (3) a reasonable excuse or
          explanation for its failure to file a responsive pleading.
          The standard of review for challenges to a decision
          concerning the opening of a default judgment is well
          settled.

          A petition to open a default judgment is an appeal to the
          equitable powers of the court. The decision to grant or
          deny a petition to open a default judgment is within the
          sound discretion of the trial court, and we will not overturn

____________________________________________


1
  Appellant also contends the videos constitute self-authenticating evidence
under Pa.R.E. 902(5), (8), (11), and (12). Appellant made no mention of
Rule 902 in her motion for judicial notice or in her Rule 1925(b) statement.
Consequently, Appellant’s particular claim that the videos constitute self-
authenticating evidence is waived on appeal. See Donaghy, supra. See
also Pa.R.A.P. 302(a) (stating issues not raised in trial court are waived and
cannot be raised for first time on appeal).



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         that decision absent a manifest abuse of discretion or error
         of law.

         However, we will not hesitate to find an abuse of discretion
         if, after our own review of the case, we find that the
         equities clearly favored opening the judgment.

         An abuse of discretion is not a mere error of judgment, but
         if in reaching a conclusion, the law is overridden or
         misapplied, or the judgment exercised is manifestly
         unreasonable, or the result of partiality, prejudice, bias or
         ill will, as shown by the evidence or the record, discretion
         is abused.

Smith v. Morrell Beer Distributors, Inc., 29 A.3d 23, 25 (Pa.Super.

2011) (quoting Dumoff v. Spencer, 754 A.2d 1280, 1281-82 (Pa.Super.

2000)). Additionally, review of a trial court’s decision to admit or exclude

evidence is:

         These matters are within the sound discretion of the trial
         court, and we may reverse only upon a showing of abuse
         of discretion or error of law. An abuse of discretion may
         not be found merely because an appellate court might
         have reached a different conclusion, but requires a result
         of manifest unreasonableness, or partiality, prejudice,
         bias, or ill-will, or such lack of support so as to be clearly
         erroneous. In addition, [t]o constitute reversible error, an
         evidentiary ruling must not only be erroneous, but also
         harmful or prejudicial to the complaining party.

Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa.Super. 2007), appeal denied,

595 Pa. 708, 938 A.2d 1053 (2007).

      Pennsylvania Rule of Evidence 201(b) governs judicial notice of

adjudicative facts, in pertinent part, as follows:

         Rule 201. Judicial Notice of Adjudicative Facts

                                   *    *    *

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         (b) Kinds of Facts That May Be Judicially Noticed.
         The court may judicially notice a fact that is not subject to
         reasonable dispute because it:

         (1) is generally known within the trial court’s territorial
         jurisdiction; or

         (2) can be accurately and readily determined from
         sources whose accuracy cannot reasonably be questioned.

                                  *    *    *

Pa.R.E. 201(b). “Adjudicative facts are facts about the particular parties to

the controversy, their activities, their property, and their interests.   Facts

which help answer who did what, when, where, why, how, and with what

motive and intent are all adjudicative.”    Interest of D.S., 622 A.2d 954,

957 n.4 (Pa.Super. 1993).

      This Court has explained:

         A court may take judicial notice of an indisputable
         adjudicative fact. A fact is indisputable if it is so well
         established as to be a matter of common knowledge.
         Judicial notice is intended to avoid the formal introduction
         of evidence in limited circumstances where the fact sought
         to be proved is so well known that evidence in support
         thereof is unnecessary.

         Judicial notice allows the trial court to accept into evidence
         indisputable facts to avoid the formality of introducing
         evidence to prove an incontestable issue. However, the
         facts must be of a matter of common knowledge and
         derived from reliable sources “whose accuracy cannot
         reasonably be questioned.” Pa.R.E. 201(b)(2).

Kinley v. Bierly, 876 A.2d 419, 421 (Pa.Super. 2005) (some internal

citations omitted).


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      Instantly, the court held a hearing on November 18, 2013, on

Appellant’s pro se petition to open default judgment.      Appellant made no

mention at the hearing of the videos, which are supposed to depict the

sheriff taking allegedly “incomplete” public oaths of office. At the conclusion

of the hearing, the court deferred its ruling so that the parties could file

post-hearing briefs. On December 26, 2013, Appellant filed her post-hearing

brief, at which time she again made no mention of the videos.        The next

day, on December 27, 2013, Appellant filed a motion for judicial notice,

requesting for the first time, that the court take judicial notice of the two

videos, which Appellant attached as exhibits to her motion.          Appellant

provided no explanation why she did not introduce the videos to the trial

court at the evidentiary hearing or mention them in her post-hearing brief.

Appellant’s belated presentation of the videos arguably constitutes waiver of

her claim on appeal.     See generally Hall v. Jackson, 788 A.2d 390

(Pa.Super. 2001) (holding appellant waived claims where it failed to specify

in post-trial motion how grounds for relief were asserted at trial or in pre-

trial proceedings); Kraus v. Taylor, 710 A.2d 1142 (Pa.Super. 1998),

appeal dismissed as improvidently granted, 560 Pa. 220, 743 A.2d 451

(2000) (explaining full development of issues in trial court serves important

function of orderly and efficient use of our judicial resources; appellant

waived appellate issues which he failed to argue in brief in support of post-

trial motion).


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     Moreover, in denying Appellant’s motion for judicial notice, the court

explained:

        The oath sworn by [the sheriff] is an adjudicative fact and
        as such falls within the scope of Pa.R.E., Rule 201.
        However, judicial notice may only be taken of a fact that is
        not subject to reasonable dispute. The oaths sworn by
        [the sheriff] are not generally known within this court’s
        territorial jurisdiction. The specific language of the oaths
        sworn by [the sheriff] is at the heart of [Appellant’s]
        defense and in dispute. The purpose of the hearing on
        November 18, 2013 was to take evidence on this issue.
        “[D]isputed questions of fact are not within the domain of
        judicial notice.” Haber v. Monroe County Vocational-
        Technical School, [442 A.2d 292, 296 (Pa.Super. 1982)].
        Furthermore, unauthenticated videos cannot be relied
        upon as a factual source whose accuracy cannot be
        reasonably questioned.

(Order Denying Appellant’s Motion for Judicial Notice, filed February 25,

2014, at 1-2 n.1). Further, the court explained:

        First, whether…[the sheriff] took the required oaths of
        office, the law of Pennsylvania has long held that the act of
        a public office holder, performed under the color of title, is
        valid with regard to the public, even if the public office
        holder’s election or appointment was irregular. … Thus,
        service made by [the sheriff] or her deputies is valid with
        respect to third parties, such as [Appellee] and
        [Appellant], regardless of whether [the sheriff] took the
        proper oaths to hold office because “[t]he acts of de facto
        officials that are performed under the color of title are
        valid with regard to the public, even if their election or
        appointment was irregular or illegal.” Ucheomumu v.
        County of Allegheny, 729 A.2d 132, 135 (Pa.Cmwlth.
        1999)[, appeal denied, 559 Pa. 724, 740 A.2d 1151
        (1999)].

        Second, if the complaint was not [properly] served, as
        [Appellant] contends, in personam jurisdiction would be
        lacking, not subject matter jurisdiction. Township of
        Lycoming v. Shannon, 780 A.2d 835 (Pa.Cmwlth. 2001)

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           (jurisdiction of the court over the defendant is dependent
           upon proper service of the proceeding).          [Appellant’s]
           theory is built on this court lacking subject matter
           jurisdiction due to the [s]heriff’s lack of authority to serve
           the complaint; however, the failure to serve original
           process does not implicate subject matter jurisdiction.
           Jurisdiction over subject matter relates to the competency
           of a court to hear and determine controversies of the
           general nature of the matter involved, which is, in this
           case, ejectment. … There has been no suggestion that
           the court does not have jurisdiction over actions in
           ejectment. [Appellant] has offered no citation to support
           her theory that failure to complete service affects the
           court’s jurisdiction over the subject matter of this
           litigation.   [Appellant] has not raised a claim that in
           personam jurisdiction is lacking.

           Third, as [Appellant] admits, this is not an action in quo
           warranto, which is the only form of action that can
           challenge a public official’s right to hold office and exercise
           the powers of that office.[2] Spykerman v. Levy, [491
           Pa. 470, 421 A.2d 641 (1980)]. Nonetheless, [Appellant’s]
           theory rests on her challenge to [the sheriff’s] right to hold
           office and her exercise of the powers of that office.
           [Appellant] argues that [the sheriff] “never had authority
           to act, nor has she ever held the Office of Sheriff.”
           According to [Appellant], because [the sheriff] has never
           properly held office, all actions taken by representatives of
           her office are void, resulting in the failure of service of the
           complaint and the lack of subject matter jurisdiction.
           Despite acknowledging that this is not a quo warranto
           action, the defense that [Appellant] sets forth depends on
           the resolution of the legitimacy of [the sheriff’s] tenure as
           sheriff, which is an issue that can only be addressed in a
           quo warranto action. For the reasons set forth above,
           whether [the sheriff] holds her office de facto or de jure is
           irrelevant to the outcome of this case.

           Finally, we permitted [Appellant] to make a record in
           support of her claim that the [s]heriff failed to take the
____________________________________________


2
    Appellant also concedes this point on appeal. (See Appellant’s Brief at 8.)



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         proper oaths prior to entering office. Although we believe
         that this issue does not need to be reached to dispose of
         this case, we have nonetheless addressed the claim in an
         effort to be thorough. [Appellant] contends that [the
         sheriff] is required to take both the oath of office required
         by the Constitution for the Commonwealth of Pennsylvania
         and the oath required by the County Code, that she has
         not done so throughout her tenure[,] and that as a result
         she has never legitimately held office.

                                  *     *      *

         Both the Constitution of the Commonwealth of
         Pennsylvania and the County Code address the oath to be
         sworn by county officers before entering the duties of their
         offices. … We note that the oath required by the County
         Code incudes within it, word for word, the oath required by
         the Constitution. … In considering whether one recitation
         of common language is sufficient, we have considered the
         purpose for swearing an oath prior to assuming office. …
         The swearing of the oath marks entry to office. Before
         swearing, an office holder is de facto. After swearing an
         office holder is de jure. We fail to perceive how it could
         matter whether [the sheriff] uttered the identical words of
         the Constitutional oath and the County oath once or twice,
         when, upon swearing those words one time, she became
         the de jure holder of the office of sheriff.

         For all of the reasons stated, [Appellant] cannot escape the
         results of this litigation based on alleged technical error in
         the oath of the [s]heriff. [Appellant] has failed to state a
         meritorious defense that would warrant opening the
         default judgment[.]

(Order Denying Appellant’s Petition to Open Default Judgment, filed

February 25, 2014, at 3-8) (some internal citations and footnotes omitted).

We see no reason to disturb the court’s refusal to take judicial notice of the

videos. See Jacobs, supra. Accordingly, we affirm.

      Order affirmed.


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     Judge Wecht joins this memorandum.

     Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2014




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