J-S95018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RBS CITIZENS, N.A. SUCCESSOR IN                  IN THE SUPERIOR COURT OF
INTEREST TO CCO MORTGAGE CORP.                         PENNSYLVANIA
F/K/A CHARTER ONE MORTGAGE CORP.

                         Appellant

                    v.

UNKNOWN, HEIRS, SUCCESSORS,
ASSIGNS, AND ALL PERSONS, FIRMS,
OR ASSOCIATIONS CLAIMING RIGHT,
TITLE OR INTEREST FROM OR UNDER
JAMES E. MILLER; JAMES E. MILLER, III;
TIFFANY MILLER; AND TIMOTHY MILLER;
KENNETT SQUARE PROPERTIES, LLC,
THIRD PARTY PURCHASER/INTERVENOR

                         Appellees                    No. 1862 EDA 2016


                Appeal from the Order Entered May 17, 2016
              In the Court of Common Pleas of Chester County
                      Civil Division at No(s): 11-01363


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                              FILED MAY 23, 2017

      RBS Citizens, N.A., as successor in interest to CCO Mortgage

Corporation, f/k/a Charter One Mortgage Corporation, appeals from the May

17, 2016 order entered in the Chester County Court of Common Pleas

denying its petition to set aside sheriff’s sale and strike deed. We affirm.

      The trial court set forth the following factual and procedural history:

         RBS Citizens, N.A. . . . (“RBS Citizens”) brought this
         foreclosure action against Defendants, Unknown Heirs,
         Successors, Assigns and All Persons, Firms, or Associations
         claiming Right, Title or Interest from or under James E.
         Miller, deceased, James E. Miller, III, Tiffany Miller, and
J-S95018-16


       Timothy Miller . . . . and obtained a judgment by default .
       . . in the amount of $111,307.75. RBS Citizens took the
       property, located at 435 Cedar Springs Road, Kennett
       Square (“Property”), to sheriff’s sale on June 18, 2015,
       where [Kennett Square Properties, LLC (“Kennett
       Square”)] was the successful bidder for $81,000.

           The Sheriff notified its title company of the sale so that
       liens against the Property could be researched and a
       schedule of distribution produced.1 On July 31, 2015, the
       title company sent a schedule of distribution to the Sheriff
       by mail and the Sheriff received the same on August 3,
       2015 (“Schedule”). On receipt, the Sheriff posted the
       Schedule in a public location in her office lobby and mailed
       a copy to RBS Citizens’ attorney, Shapiro & DeNardo, and
       to [Kennett Square]. The Schedule shows, inter alia, a lien
       of $44,104.23 on account of child support to be paid to
       Domestic Relations.
          1
            Nicole Barron, administrative real estate manager
          for the Chester County Sheriff’s Office, was deposed
          prior to the hearing and her deposition was made a
          part of the record. . . . Ms. Barron also testified at
          the hearing on RBS Citizen’s petition . . .

          On August 18, 2015, the Sheriff issued two checks to
       Shapiro & DeNardo, one in the amount of $23,722.52 as
       sale proceeds and the other in the amount of $2,000 as a
       refund of escrow. On September 4, 2015, the Sheriff
       issued an additional check to Shapiro & DeNardo in the
       amount of $2,300 as additional sale proceeds.        On
       September 11, 2015, all three checks cleared the account
       on which they were drawn.

          On August 21, 2015, the Sheriff issued a deed
       transferring the Property to [Kennett Square]. The deed
       was recorded on September 2, 2015.

          [Kennett Square] began clean out work at the Property
       after receiving the Schedule. Later, after the deed was
       received, [Kennett Square] began design work, pulling
       permits, and construction.      [Kennett Square] hired
       subcontractors to work at the Property. [Kennett Square]
       invested $280,000 in the Property, in addition to the
       purchase price.


                                   -2-
J-S95018-16


           On December 7, 2015, RBS Citizens filed a petition to
        set aside the sheriff’s sale and strike the deed based on
        the Sheriff’s failure to comply with [Pennsylvania Rule of
        Civil Procedure] 3136. [Kennett Square] first learned of
        RBS Citizen’s claim when served with the petition. Some
        work at the Property was completed after the petition was
        received. At the time [of] the hearing on the petition in
        May 2016, the Property was ready for sale.

            [Kennett Square] responded to the petition by seeking
        to intervene and answering.      The parties completed
        discovery and attended a hearing on May 6, 2016. We
        entered an order May 16, 2016 denying RBS Citizens any
        relief . . .

Trial Ct. Op., 7/27/16, at 1-3 (citations omitted).     RBS Citizens timely

appealed to this Court on June 15, 2016.

     RBS Citizens raises four issues on appeal:

           1. Whether the trial court erred in denying [RBS
              Citizens’] Motion to Set Aside the Sheriff’s Sale,
              where the Sheriff’s Office admitted it failed to comply
              with Pa. R.C.P. 3136(a), depriving [RBS Citizens] of
              $44,000.00 in proceeds from the Sheriff’s Sale?

           2. Whether the trial court erred in denying [RBS
              Citizens’] Motion to Set Aside the Sheriff’s Sale,
              where the Sheriff’s Office failed to comply with Pa.
              R.C.P. 3136(b)?

           3. Whether the trial court erred in denying [RBS
              Citizens’] Motion to Set Aside the Sheriff’s Sale,
              where the Sheriff’s Office failed to comply with Pa.
              R.C.P. 3136(c)?

           4. Whether the trial court erred in denying [RBS
              Citizens’] Motion to Set Aside the Sheriff’s Sale,
              where the petition was timely filed in accordance
              with 42 Pa.C.S. §5522(b)(5)?

RBS Citizens’ Br. at 4 (suggested answers omitted).




                                    -3-
J-S95018-16



       RBS Cititzens’ petition to set aside the sheriff’s sale relied on

Pennsylvania Rule of Civil Procedure 3183, which governs petitions to stay or

set aside a writ of execution. Pet. to Set Aside Sheriff’s Sale, 12/7/15, ¶ 12;

see Pa.R.C.P. 3183.        The petition does not cite Pennsylvania Rule of Civil

Procedure 3132, which governs petitions to set aside a sheriff’s sale. See

Pa.R.C.P. 3132. Although RBS Citizens did not cite Rule 3132, the trial court

analyzed the petition under Rule 3132 and concluded that RBS Citizens could

not obtain relief because its petition was filed after the Sheriff transferred

the deed to Kennett Square.1 Trial Ct. Op., 7/27/16, at 6. We agree.

       Rule 3132 governs petitions to set aside a sheriff’s sale:

           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. It is well settled that absent fraud or a lack of authority to

make the sale, “a petition to set aside a sheriff’s sale may only be granted

____________________________________________


       1
         We note that the trial court also analyzed whether RBS Citizens was
entitled to relief pursuant to Rule 3183.        As the trial court properly
concluded, Rule 3183 was inapplicable here because RBS Citizens sought
relief from a judgment entered in its favor and the sheriff’s sale had already
occurred. Trial Ct. Op., 7/27/16, at 4 (citing Workingmen’s Sav. & Loan
Ass’n of Dellwood Corp. v. Kestner, 652 A.2d 327, 328 (Pa.Super. 1994)
(“The proper procedure to contest a sheriff’s sale is by petition, before
delivery of the sheriff’s deed, under Pa.R.C.P. 3132.”)); see also 15 West’s
Pa. Prac., Mortgages (3d ed.) § 5.4 (“[Pa.R.C.P.] 3181(h), incorporating Rule
3132 . . ., provides the sole grounds for relief after the sale has been
made.”).



                                           -4-
J-S95018-16



when the petition is filed before the sheriff’s delivery of the deed.”      First

Union Nat’l Bank v. Estate of Shevlin, 897 A.2d 1241, 1246 (Pa.Super.

2006) (quoting Deutsche Bank Nat’l Co. v. Butler, 868 A.2d 574, 578

(Pa.Super. 2005)).       RBS Citizens filed its petition to set aside the sale on

December 7, 2015, three months after the deed was recorded. The petition

did not allege fraud or a lack of authority to make the sale.       Under these

circumstances, RBS Citizens’ petition to set aside the sheriff’s sale was time-

barred,2 and the trial court correctly denied relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




____________________________________________


       2
          Alternatively, RBS Citizens argues that its petition was timely
pursuant to 42 Pa.C.S. § 5522(b)(5), which provides a six-month statute of
limitations on actions to set aside a judicial sale of property. However, this
argument is meritless because Rule 3132 specifically provides that the
petition to set aside a sheriff’s sale must be filed before delivery of the
sheriff’s deed; section 5522(b)(5) merely sets a general time limit on filing a
challenge to a judicial sale. Because RBS Citizens failed to file its petition
before the sheriff delivered the deed to Kennett Square, its petition was
time-barred, regardless of the statute of limitations.



                                           -5-
