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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    WELLS FARGO BANK, N.A., S/B/M              :   IN THE SUPERIOR COURT OF
    WACHOVIA MORTGAGE                          :        PENNSYLVANIA
    CORPORATION                                :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JC BOHLEMAN, A/K/A J.C.                    :   No. 1477 EDA 2017
    BOHLEMAN, LINDA BOHLEMAN,                  :
    A/K/A LINDA J. BOHLEMAN                    :
                                               :
                                               :
    APPEAL OF: JC BOHLEMAN                     :

                  Appeal from the Order Entered April 5, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                              No(s): 150200348


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED APRIL 11, 2018

        Appellant JC Bohleman appeals from the order denying his petition to

set aside the sheriff sale of his residence in Philadelphia (Property). Appellant

claims that the trial court erred in refusing to set aside the sale because the

prothonotary improperly rejected an emergency motion to postpone the sale

and the trial court subsequently scheduled a hearing on the motion while his

counsel was on trial in a different county. We affirm.

        Appellee,    Wells   Fargo    Bank,    N.A.,   s/b/m   Wachovia   Mortgage

Corporation, initiated foreclosure proceedings on the Property in February of

2015, seeking an in rem judgment of $217,688.75, as well as interest, costs,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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and attorneys’ fees. The docket indicates that Michael Stosic, Esq. entered an

appearance on behalf of the named defendants, Appellant and Linda Bohleman

(Linda) (collectively Defendants), and filed an answer and new matter.

       On August 23, 2016, the foreclosure action proceeded to trial.

Defendants and Stosic failed to appear for trial, and the trial court found in

favor of Appellee.1 Defendants did not file a motion for post-trial relief.

       On September 14, 2016, twenty-two days after the decision, the

Pennsylvania Supreme Court suspended Attorney Stosic for one year.

However, Stosic remained listed as Appellant’s counsel of record in the Office

of Judicial Records (OJR).

       On September 17, 2016, Appellee filed a praecipe for writ of execution.

On October 6, 2016, Appellee served Appellant with the writ and apprised him

that sale was scheduled for January 10, 2017.

       On Friday, January 6, 2017, Appellant, through his present counsel,

Melissa Freeman, Esq., attempted to file an “emergency motion to postpone

the sheriff sale on equitable grounds pursuant to Pa.R.C.P. 3183(b)(2)”

(Motion to Postpone). Appellant noted that Stosic had been suspended from


____________________________________________


1 See Pa.R.C.P. 218(b)(1) & note (indicating that a plaintiff (Appellee here)
may proceed to trial if the defendant (Appellant) is not ready and that “[a]
decision of the court following a trial at which the defendant failed to appear
is subject to the filing of a motion for post-trial relief which may include a
request for a new trial on the ground of a satisfactory excuse for the
defendant’s failure to appear”).




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practice and averred that Stosic failed to advise Appellant of the trial date or

the entry of the judgment. Appellant attached, but did not separately file, a

petition to strike and/or open the default judgment as an exhibit to the Motion

to Postpone.2

       According to Appellant, the Motion to Postpone was initially accepted,

but was then rejected for filing because Stosic was still listed as counsel of

record in the OJR. Attorney Freeman averred that she then conferred with

the prothonotary, the clerk for the President Judge, and a court administrator,

Dominic Rossi, Esq.       Attorney Rossi advised Attorney Freeman to file the

motion on the following business day, Monday, January 9, 2017. Attorney

Freeman alleged that during these conversations, she advised the participants

that she had a scheduling conflict on January 9, 2017, due to a jury trial in

another county.

       Appellant filed the Motion to Postpone on January 9, 2017. The motion

did not indicate that counsel would not be available for a hearing on January

9, 2017.

       That same day, Appellant’s Motion to Postpone was assigned to Judge

Linda Carpenter.        Judge Carpenter issued a rule to show cause order

scheduling a hearing for 1:30 p.m. Neither Appellant nor Attorney Freeman


____________________________________________


2 The attached peititon to strike and/or open the default judgment suggested
that Appellee improperly demanded payments for forced-placed insurance
when Appellant had insurance in place.



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appeared for the hearing, and Judge Carpenter entered an order denying the

motion to postpone for “failure to appear.”3

       According to Attorney Freeman, she was not aware that the Motion to

Postpone was denied and she attempted to contact the court that afternoon

after her jury trial in Bucks County. Attorney Freeman attempted to schedule

a hearing before the night emergency judge. Attorney Freeman alleged that

she was told to address the matter in the morning.             Attorney Freeman

contacted opposing counsel, who informed her that Appellee’s counsel would

be present for a hearing on January 10, 2017. When the prothonotary’s office

opened on January 10, 2017, the clerk informed Attorney Freeman that Judge

Carpenter denied the Motion to Postpone. The property was sold later that

same day.

       Appellant filed the instant petition to set aside the sheriff sale on January

13, 2017.     Appellant claimed that the prothonotary should have filed the

Motion to Postpone on January 6, 2017, and that the prothonotary failed to

inform Judge Carpenter of Attorney Freeman’s scheduling conflict on January

9, 2017. Appellant further suggested that Judge Carpenter should not have

denied the Motion to Postpone on January 9, 2017, because Attorney Freeman

had good cause for failing to appear. Appellant requested that the trial court

set aside the sale and consider the petition to strike and/or open the default

judgment attached to the Motion to Postpone.
____________________________________________


3 The order denying the motion to postpone was dated January 9, 2017,
docketed on January 10, 2017, and served on January 11, 2017.

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       Appellee answered Appellant’s petition to set aside the sheriff sale.

Appellee asserted, in relevant part, that Attorney Freeman’s scheduling

conflict did not warrant setting aside the sheriff sale when Appellant showed

a lack of urgency after receiving notice of the sheriff sale on October 6, 2016.

       The trial court conducted a brief hearing on April 5, 2017,4 and

thereafter denied the petition to set aside the sheriff sale on April 6, 2017.

Appellant timely appealed and complied with the court’s order for a Pa.R.A.P.

1925(b) statement of errors complained of on appeal.

       The trial court filed a responsive Pa.R.A.P. 1925(a) opinion. The court

concluded that Appellant failed to demonstrate a breakdown in the operations

of the court with respect to the motion to postpone the sheriff sale. First, the

court suggested that the OJR properly rejected Appellant’s Motion to Postpone

on January 6, 2017, because the OJR was unaware of Stosic’s suspension and

Attorney Freeman did not enter an appearance or file a praecipe to substitute

as counsel. Trial Ct. Op., 9/8/17, at 5. Second, the court concluded that

Judge Carpenter properly denied the motion to postpone filed on January 9,

2017, because counsel failed to appear and did not arrange for substitute

counsel to appear on her behalf.           Id. at 7.   The court further noted that

Attorney Freeman did not seek reconsideration of the denial of the motion to

postpone before Judge Carpenter.



____________________________________________


4At the hearing, Attorney Freeman averred that Appellant approached her in
December of 2016 and retained her in January of 2017.

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      Appellant presents the following issues for review:

      1. Whether the trial court committed an error of law when the
         prothonotary rejected a filed emergency motion to postpone a
         sheriff sale and issued a refund of the filing fee, due to the
         already entered appearance of [Stosic], a formerly admitted
         attorney known to be suspended from the practice of law.

      2. Whether the trial court abused its discretion when deciding that
         the breakdown in court operations was remedied by knowingly
         scheduling the hearing during a jury trial in another county,
         instead of allowing [Attorney Freeman] to present the motion,
         after it was erroneously rejected, to the after hours judge or in
         the morning immediately before the sale.

Appellant’s Brief at 2-3.

      We address Appellant’s arguments jointly.         Appellant asserts the

breakdown in the operation of the court excused Attorney Freeman’s failure

to appear for the hearing on Appellant’s Motion to Postpone.        In support

Appellant argues that the prothonotary lacked the authority to reject the filing

of the Motion to Postpone on January 6, 2017. Appellant also contends that

the trial court failed to give adequate consideration to Attorney Freeman’s

scheduling conflict and erred in concluding that Attorney Freeman had a duty

to find substitute counsel to attend the January 9, 2017 hearing. In short,

Appellant suggests that the sheriff sale should be set aside because court

breakdowns resulted in a loss of his opportunity to be heard on the Motion to

Postpone.

      Additionally, Appellant challenges the court’s various findings, including

its suggestions that OJR was unaware of Stosic’s suspension and that Attorney

Freeman had advance notice to find substitute counsel for the January 9, 2017


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hearing.   Appellant further contends that, contrary to the trial court’s

suggestion, Attorney Freeman could not have filed a motion to reconsider with

Judge Carpenter on January 10, 2017, when the sale was scheduled to begin

that same day. Lastly, Appellant asserts that the trial court’s suggestion that

Attorney Freeman was responsible for finding substitute counsel placed an

undue hardship on counsel to be in two places at the same time.

      We review the trial court’s ruling to deny a petition to set aside a sheriff

sale for an abuse of discretion. See Nationstar Mortg., LLC v. Lark, 73

A.3d 1265, 1267 (Pa. Super. 2013).        Pennsylvania Rule of Civil Procedure

3132 states:

      Upon petition of any party in interest before delivery of the
      personal property or 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.

Pa.R.C.P. 3132.

      Following our review, we conclude that Appellant’s focus on the alleged

breakdowns in the trial court warrant no relief. Even if the January 6, 2017

rejection of the Motion to Postpone constituted a breakdown, the court

accepted Appellant’s filing on January 9, 2017, one day before the scheduled

sheriff sale. As suggested by the trial court, Attorney Freeman knew or should

have known that the filing of her emergency motion on January 9, 2017, would

have triggered the prompt scheduling of a hearing.           Although Attorney

Freeman stated that she orally informed various court personnel of her

scheduling conflict on January 9, 2017, she did not formally advise the court

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of that conflict in writing.   Attorney Freeman also apparently made no

arrangements for receiving and responding to the rule to show cause order

scheduling the hearing in a timely fashion or to have substitute counsel to

appear at the hearing.

     Under these circumstances, we discern no abuse of discretion or error

of law in the trial court’s ruling that the scheduling of the January 9, 2017

hearing on Appellant’s Motion to Postpone did not constitute a breakdown in

the operation of the court.    Thus, we agree that Appellant failed to assert

proper cause for setting aside the sale. See Lark, 73 A.3d at 1267.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/18




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