          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wells Fargo Bank, N.A.                 :
                                       :
                     v.                : No. 1754 C.D. 2017
                                       : Argued: December 13, 2018
Dwain Sheffler                         :
and Carol Sheffler                     :
                                       :
Appeal of: Bernadette Dabler           :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: March 5, 2019



             Bernadette Dabler (Dabler) appeals the order of the Court of Common
Pleas of the Thirty-Ninth Judicial District, Franklin County Branch (trial court)
granting the petition of Barkdoll Martin Homes, LLC (Barkdoll Martin) to set
aside the sheriff’s sale of the property at 1971 Ashley Drive, Chambersburg,
Pennsylvania, 17201 (Property); dismissing Dabler’s petition to strike Barkdoll
Martin’s petition; and ordering that Barkdoll Martin is the successful purchaser of
the Property sold at the sheriff’s sale for $101,500.00. We reverse.
             On August 5, 2016, Wells Fargo Bank, N.A. (Wells Fargo) filed a
Complaint in Mortgage Foreclosure against the Property due to non-payment of the
mortgage by Dwain Sheffler and Carol Sheffler (Shefflers), mortgagees of the
Property. Reproduced Record (R.R.) at 4a-13a. On October 3, 2016, Wells Fargo
filed a Praecipe for In Rem Judgment against the Shefflers based on their failure to
file an answer to Wells Fargo’s Complaint and for foreclosure and sale of the
Property. Id. at 14a.
                On March 10, 2017, a sheriff’s sale was conducted by the Franklin
County Sheriff (Sheriff) due to the In Rem Judgment and Writ of Execution
obtained by Wells Fargo. Ronald Martin (Martin), a representative of Barkdoll
Martin, was a bidder for the Property as was Matthew Hurley (Hurley). After
bidding took place between Martin and Hurley, the Property was declared by the
auctioneer to be sold to Barkdoll Martin for $101,500.00. Dabler was not an active
bidder up to that point in the auction. Immediately after the Property was declared
sold, Dabler informed the auctioneer that he had missed her bid. The auctioneer
then reopened the bidding, but Martin refused to outbid Dabler because he believed
that the Property had already been sold to Barkdoll Martin. After Dabler bid
$102,000, the auctioneer declared the Property “sold” to Dabler.
                On April 10, 2017, Barkdoll Martin filed a Petition to Set Aside
Sheriff Sale in the trial court pursuant to Pa. R.C.P. No. 3132,1 asking the court to
enter a rule on the Sheriff and/or Dabler, as the putative successful purchaser of the
Property, to show cause why the Sheriff should not be required to convey fee
simple title to the Property to Barkdoll Martin. See R.R. at 30a-32a. The petition
was filed in the above-captioned Wells Fargo foreclosure action against the

      1
          Pa. R.C.P. No. 3132 states, in relevant part:

                 Upon petition of any party in interest before delivery of the . . .
                sheriff’s deed to real property, the court may, upon proper cause
                shown, set aside the sale and order a resale or enter any other order
                which may be just and proper under the circumstances.


                                                  2
Shefflers in which neither Barkdoll Martin, the Sheriff, nor Dabler was a party. On
April 13, 2017, the trial court issued a Rule to Show Cause on the Sheriff and/or
Dabler as to why Barkdoll Martin was not entitled to the requested relief.
               On May 4, 2017, Dabler filed a petition to strike Barkdoll Martin’s
petition and the Rule to Show Cause. See R.R. at 33a-37a. Dabler asserted that
the auctioneer properly exercised his discretion to reopen the bidding because her
$102,000.00 bid was timely made before the fall of the hammer on Martin’s lower
bid.2 Id. at 35a-36a. Dabler also asserted: (1) neither Martin nor Barkdoll Martin
is a party to this foreclosure action; (2) neither Martin nor Barkdoll Martin has any
interest in the Property and neither is a “party in interest” under
Pa. R.C.P. No. 3132; (3) neither Martin nor Barkdoll Martin has standing to
intervene in this matter and neither has sought to intervene3; and (4) neither the
Sheriff nor Dabler is a party to the matter and neither has been joined in the matter.

       2
          See Section 2328(b) of the Uniform Commercial Code (U.C.C.), 13 Pa. C.S. §2328(b)
(“A sale by auction is complete when the auctioneer so announces by the fall of the hammer or in
other customary manner. Where a bid is made while the hammer is falling in acceptance of a
prior bid the auctioneer may in his discretion reopen the bidding or declare the goods sold under
the bid on which the hammer was falling.”); Hoffman v. Horton, 186 S.E.2d 79, 80 (Va. 1972)
(holding that an auctioneer has the discretion to reopen the bidding to recognize a competing bid
that was tendered prior to the fall of the hammer); Kline v. Feinberg, 481 So. 2d 108, 109 (Fla.
Dist. Ct. App. 1986) (same). See also Callimanopulos v. Christie’s, Inc., 621 F. Supp. 2d 127,
130-31 (S.D.N.Y. 2009) (same); Ragusa v. Greco, 131 So. 849, 850 (La. 1930) (same).

       3
          See Pa. R.C.P. No. 2327(2) (“At any time during the pendency of an action, a person
not a party thereto shall be permitted to intervene therein . . . if . . . such person is so situated as
to be adversely affected by a distribution or other disposition of property in the custody of the
court or of an officer thereof[.]”); Pa. R.C.P. No. 2328(a) (“Application for leave to intervene
shall be made by a petition in the form of and verified in the manner of a plaintiff’s initial
pleading in a civil action, setting forth the ground on which intervention is sought and a
statement of the relief or the defense which the petitioner desires to demand or assert.”);
Pa. R.C.P. No. 2330(a) (“After the entry of an order allowing intervention, the intervener shall
have all the rights and liabilities of a party to the action.”).


                                                   3
Id. at 36a. As a result, Dabler asked the trial court to issue a Rule to Show Cause
Why the Petition to Set Aside and the court’s prior Rule to Show Cause should not
be stricken; to strike the prior Rule to Show Cause; and to award costs, attorney
fees, and other appropriate relief. Id. Barkdoll Martin filed a response as directed
by the trial court and a hearing was conducted.
             At the September 18, 2017 hearing, a tape of the March 10, 2017
auction was admitted into evidence and played for the court.           R.R. at 77a.
Additionally, Marvin Amsley (Amsley), the auctioneer, testified that he knocked
the Property down to Martin after nobody else bid and that he did not see anyone
else trying to bid prior to knocking it down to Martin. Id. at 61a. He stated that he
did not ever see Dabler wave her card, but that Deputy Sheriff Brian Cramer
(Cramer) called Amsley’s attention to the fact that someone else was trying to bid.
Id. at 61a, 62a, 65a. Amsley testified that, as a result, he opened the auction up
between two bids at that point over Martin’s protests and recognized Dabler’s bid
of $102,000.00. Id. at 62a, 65a-66a.
             Cramer testified that he did not see or hear Dabler’s bidding prior to
Amsley’s knocking down on Martin’s bid. R.R. at 69a-70a. Martin stated that he
had bid $101,500.00 when it was knocked down to him, and that he was not aware
that Dabler was bidding in front of him. Id. at 79a-80a. He stated that he told the
auctioneer that it had been knocked down to him and that it was sold when he
became aware of Dabler’s bid. Id. at 80a. Hurley testified that he was seated
directly behind Dabler and saw her bidding, but that Amsley apparently did not see
her bidding. Id. at 84a-86a.
             Bryce Pugh testified that he is a real estate investor who accompanied
Dabler to the auction and sat next to her to “coach” her during the auction. R.R. at


                                         4
98a-99a. He stated that an auctioneer has to see a bidder to recognize a bid and,
“Sometimes I do have to be very demonstrative in order for the auctioneer to see
me.” Id. at 103a-104a. He testified that Dabler’s $102,000.00 bid was made
before Amsley said that the Property was sold to Martin, but that Amsley
obviously did not see Dabler. Id. at 101a.
               Nevin Rentzel testified as an expert regarding the rules and customary
practices of the sale of real estate by auction. R.R. at 112a-120a. He stated that
after Amsley said, “sold” to Martin, it is not typically within Amsley’s discretion
to let Martin out of that bid. Id. at 116a. He testified that it is up to the bidder to
be seen, but it is the auctioneer’s responsibility working on the seller’s behalf not
to miss any bids. Id. at 117a.
               On October 20, 2017, the trial court issued an order granting Barkdoll
Martin’s Petition to Set Aside Sheriff’s Sale of the Property to Dabler; dismissing
Dabler’s petition to strike Barkdoll Martin’s petition to set aside the sale and issue
the rule; and ordering that Barkdoll Martin is the successful purchaser of the
Property. Dabler now appeals.4, 5

       4
         The matter was initially remanded to the trial court to dispose of outstanding post-trial
motions. On January 18, 2018, the trial court denied the post-trial motions; judgment was
entered on January 23, 2018; and on January 30, 2018, Dabler filed a second notice of appeal at
the same docket number of the appeal in this Court. By February 28, 2018 Memorandum
Opinion and Order, this Court denied Barkdoll Martin’s application to vacate the trial court’s
stay pending disposition of the instant appeal that was granted in Dabler’s favor, but conditioned
continuation of the stay upon Dabler’s filing of security in the amount of $100,000.00 pursuant
to Pa. R.A.P. 1733(a). By August 8, 2018 Memorandum Opinion and Order, we denied Barkdoll
Martin’s application to quash Dabler’s appeal.

       5
         “Equitable considerations govern the trial court’s decision to set aside a sheriff’s sale,
and this Court will not reverse the trial court’s decision absent an abuse of discretion. An abuse
of discretion occurs where, for example, the trial court misapplies the law.” Nationstar
Mortgage, LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super. 2013) (citations omitted).


                                                5
               In this appeal, Dabler first claims that the trial court erred in
permitting Barkdoll Martin to prosecute its Petition to Set Aside Sheriff’s Sale and
issuing the Rule to Show Cause in the instant foreclosure action initiated by Wells
Fargo against the Shefflers.6 We agree.

       6
          In the October 23, 2017 Opinion filed in support of its order, the trial court rejected
Dabler’s claim that Barkdoll Martin did not properly initiate the instant proceeding as a “party in
interest” under Pa. R.C.P. No. 3132:

                       In the instant matter, it is uncontested that [Barkdoll
               Martin] was the original successful bidding party upon whom the
               property was “knocked down.” The evidence revealed that it is at
               this moment of knocking down and the announcement of the sale
               that [Barkdoll Martin] became bound to the sale and was no longer
               permitted to retract [its] bid. [R.R. at 116a]. As the Auctioneer
               proceeded to reopen the bidding, under protest by [Barkdoll
               Martin], and a subsequent bidder was also announced as the
               successful bidder, it is unquestionable to this Court that [Barkdoll
               Martin] has a legally sufficient interest to contest the Auctioneer’s
               action of reopening the bidding and announcing a different
               purchaser of the property. Stated another way, this Court finds that
               [Barkdoll Martin] is an interested party and has standing to bring
               the current action, i.e. [Barkdoll Martin] has a substantial, direct,
               and immediate interest in the outcome of this case.

                                              ***

                       Further, [Dabler] contends that [Barkdoll Martin] did not
               intervene as a party pursuant to Pa. R.C.P. [Nos.] 2327 and 2328,
               respectively. While this Court agrees that [Barkdoll Martin] did
               not intervene as a party to this matter, this Court is effectively
               disregarding the procedural defect, pursuant to Pa. R.C.P. [No.]
               126, [ ]as all the parties with interest in the present matter have
               appeared timely and have fully litigated the matter. Thus, no
               party’s substantial interests are affected by such action and this
               action is not prejudicial to any party.

R.R. at 157a-158a.

(Footnote continued on next page…)
                                                6
                As this Court has explained:

                      Section [102] of the Judicial Code, 42 Pa. C.S.
                §102, defines a “party” as follows:

                       A person who commences or against whom relief
                       is sought in a matter. The term includes counsel
                       for such a person who is represented by counsel.

                In Gilbert v. Thomson, 7 Pa. D.&C.2d 593 (1956), it is
                stated:

                       Everyone whose name appears in the caption of
                       the praecipe for writ of summons or complaint is

(continued…)

       On the merits, the trial court also determined that the petition to set aside should be
granted:

                        Ultimately, a petition to set aside a sheriff’s sale is
                grounded in equitable principles. See M & T Mortgage Corp. v.
                Keesler, 826 A.2d 877 (Pa. Super. 2003); Kaib v. Smith, 684 A.2d
                630 (Pa. Super. 1996). Courts have set aside sheriff’s sales “where
                the validity of the sale proceedings is challenged, a deficiency
                pertaining to the notice of the sale exists, or where misconduct
                occurs in the bidding process.” Irwin Union Nat. Bank & Tr. Co.
                v. Famous, 4 A.3d 1099, 1102 (Pa. Super. 2010) (citing Blue Ball
                National Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super. 2002)).
                As such, this Court finds that [Dabler] did not meet the customary
                practice of ensuring her bid was communicated to the Auctioneer.
                The Court further finds that the Auctioneer should not have
                reopened the bidding after knocking down the property and
                announcing the sale, thereby binding [Barkdoll Martin].
                Therefore, the Court finds that misconduct has occurred in the
                bidding process. The Court accordingly finds that [Barkdoll
                Martin] has shown just and proper cause to set aside the sale. See
                generally Merrill Lynch Mortg. Capital v. Steele, 859 A.2d 788
                (Pa. Super. 2004).

R.R. at 161a.


                                                7
      not necessarily a party to the action. “Parties to an
      action are those who are named as such in the
      record and are properly served with process or
      enter an appearance . . . .” (Emphasis in original).

      In Walker v. City of Philadelphia, [45 A. 657 (Pa.
1900) (citation omitted)], it was held:

      “Parties in the larger legal sense are all persons
      having a right to control the proceedings, to make
      defense, to adduce and cross-examine witnesses,
      and to appeal from the decision if any appeal lies.”

See also Gilbert.

       Pa. R.C.P. No. 1018, as herein relevant, states:
“Every pleading shall contain a caption . . . . The caption
of a complaint shall set forth . . . the names of all the
parties [. . . .”]

       It is crystal clear from the foregoing cases,
treatises cited therein, the rules of civil procedure, and
the absence of case law, that one, who is not a named
party to an action, be it an individual action or a class
action prior to its certification, cannot become a party to
an action by the simple expedience of walking into the
office of the prothonotary and filing his appearance in
any one or more of the multitude of open actions on file.

       Neither of the [appellants] commenced this action
in equity as a class action; neither are named as a party in
the caption of the complaint; neither has a right to control
the within proceedings, nor adduce and cross-examine
witnesses, nor file an appeal, if any lies; neither did they
seek to intervene in this action pursuant to Rule 2326 et
seq. Since the [appellants] were not parties to the within
action, there being no certification of the within action,
the trial court did not acquire in personam jurisdiction
over them by the mere entry of their appearance. The
fact that neither the trial court nor any of the
representative parties nor [the defendant] objected to the
[appellants’] appearance and [the defendant] responded
to their “Motion to Require Notice of Proposed
                             8
               Settlement or Discontinuance,” and the trial court ruled
               thereon, does not make the [appellants] a party to the
               class action so as to give the trial court in personam
               jurisdiction over them . . . .
Silver Spring Township v. Pennsy Supply, Inc., 613 A.2d 108, 110-111 (Pa.
Cmwlth. 1992) (footnote omitted).7
               Because neither Barkdoll Martin, the Sheriff, nor Dabler were parties
to the above-captioned mortgage foreclosure action in the trial court and did not
seek intervention in that matter, the trial court erroneously denied Dabler’s Petition
to Strike Petition to Set Aside Sheriff’s Sale and Rule to Show Cause,8 and
erroneously granted Barkdoll Martin’s Petition to Set Aside Sheriff’s Sale that was
filed in this mortgage foreclosure action. See, e.g., Harkovich v. Pfirrmann, 627
A.2d 776, 779 (Pa. Super. 1993) (“The lack of in personam jurisdiction over the


       7
          See also Engle v. Beaver County, 754 A.2d 729, 732 (Pa. Cmwlth. 2000) (holding that a
former stranger to an action is not permitted to insert himself into proceedings at the trial level or
on appeal through a voluntary substitution by claiming that he has a similar interest or that he
could have pursued a similar action in his own right); In re Estate of Geniviva, 675 A.2d 306,
309-10 (Pa. Super. 1996) (holding that an individual does not become a party to an action merely
by filing a brief in support of the exceptions to a decree nisi and appearance at oral argument on
the exceptions); Liles v. Balmer, 653 A.2d 1237, 1239 n.1 (Pa. Super. 1994) (holding that an
individual whose name was added to the caption on a motion for reconsideration was not a party
to the action where he was not named in the complaint, not a direct participant in the trial court
proceedings, and he did not seek permission to intervene as a party at any time during the
proceedings).

       8
          Likewise, the trial court’s error regarding the issuance of the Rule to Show Cause on the
Sheriff and/or Dabler is manifest. Proceedings by rule to show cause may be had where
authorized by statute, as auxiliary for facilitation of jurisdiction already had, or as a means of
correcting the court’s own records. Flaherty v. Burke, 515 A.2d 365, 366 (Pa. Cmwlth. 1986).
Thus, a trial court should discharge a rule if it determines that it does not have jurisdiction over
either the subject matter or the respondent. Schuettler v. Maurer, 46 A.2d 586, 588 (Pa. Super.
1946). As repeatedly stated above, neither Barkdoll Martin, the Sheriff, nor Dabler were parties
in the above-captioned mortgage foreclosure action in which the instant Rule to Show Cause was
issued.


                                                  9
plaintiffs with respect to the relief sought by the defendant in his counterclaim in
this case renders the judgment against the plaintiffs absolutely void and a nullity.
It also precludes the award of a new trial.”) (citation omitted).
                Accordingly, the trial court’s order is reversed.9




                                              MICHAEL H. WOJCIK, Judge


Judge Fizzano Cannon did not participate in the decision of this case.




      9
          Based on our disposition of this issue, we will not reach the remaining appellate claims.


                                                10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wells Fargo Bank, N.A.            :
                                  :
                     v.           : No. 1754 C.D. 2017
                                  :
Dwain Sheffler                    :
and Carol Sheffler                :
                                  :
Appeal of: Bernadette Dabler      :



                                ORDER


            AND NOW, this 5th day of March, 2019, the order of the Court of
Common Pleas of the Thirty-Ninth Judicial District, Franklin County Branch,
dated October 20, 2017, is REVERSED.




                                  __________________________________
                                  MICHAEL H. WOJCIK, Judge
