J-A20013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BAYVIEW LOAN SERVICING, LLC              :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                     Appellee            :
             v.                          :
                                         :
ZACHARY DOWELL                           :
                                         :
                     Appellant           :        No. 1855 MDA 2016

                   Appeal from the Judgment October 14, 2016
                  In the Court of Common Pleas of Perry County
                         Civil Division at No(s): 2014-873


BEFORE:    GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 07, 2017

      Appellant, Zachary Dowell, appeals pro se from the judgment entered

in the Perry County Court of Common Pleas against Appellant and in favor of

Appellee, Bayview Loan Servicing, LLC, in this mortgage foreclosure action.

We vacate and remand for further proceedings.

      The relevant facts and procedural history of this case are as follows.

In September 2012, Appellant executed and delivered a mortgage in favor of

Mortgage Electronic Registration Systems, Inc. (“MERS”).       MERS assigned

the mortgage, in July 2014, to Wells Fargo Bank, N.A., which filed a

mortgage foreclosure complaint against Appellant on October 20, 2014. In

April 2016, the mortgage was assigned to Appellee.           Appellee filed a

praecipe for voluntary substitution of party plaintiff, on July 29, 2016, and a

motion for summary judgment, on September 16, 2016. Appellant filed a

response to Appellee’s summary judgment motion on October 13, 2016. On
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October 14, 2016, the court granted Appellee’s motion for summary

judgment.     On Monday, November 14, 2016, Appellee filed both a timely

notice of appeal and a motion for reconsideration of the court’s October 14 th

order. The court did not order and Appellant did not file a concise statement

of errors complained of on appeal per Pa.R.A.P. 1925(b).

     Initially, we observe:

           Our scope of review of an order granting summary
           judgment is plenary. We apply the same standard as the
           trial court, reviewing all the evidence of record to
           determine whether there exists a genuine issue of material
           fact. We view the record in the light most favorable to the
           non-moving party, and all doubts as to the existence of a
           genuine issue of material fact must be resolved against the
           moving party. Only where there is no genuine issue as to
           any material fact and it is clear that the moving party is
           entitled to a judgment as a matter of law will summary
           judgment be entered.

           … The appellate Court may disturb the trial court’s order
           only upon an error of law or an abuse of discretion.

Lineberger v. Wyeth, 894 A.2d 141, 145-46 (Pa.Super. 2006) (internal

citations and quotation marks omitted).      “The question of whether there

exist any genuine issues of material fact is subject to a de novo standard of

review.”     DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 587

(Pa.Super. 2013) (citing Drelles v. Manufacturers Life Ins. Co., 881 A.2d

822, 830-31 (Pa.Super. 2005)).

           With regard to expert opinions in the context of summary
           judgment, our Supreme Court said:

             It has long been Pennsylvania law that, while
             conclusions recorded by experts may be disputed,
             the credibility and weight attributed to those

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            conclusions are not proper considerations at
            summary judgment; rather, such determinations
            reside in the sole province of the trier of fact…. …

            At the summary judgment stage, a trial court is
            required to take all facts of record, and all
            reasonable inferences therefrom, in a light most
            favorable to the non-moving party.       This clearly
            includes all expert testimony and reports submitted
            by the non-moving party or provided during
            discovery; and, so long as the conclusions contained
            within those reports are sufficiently supported, the
            trial judge cannot sua sponte assail them in an order
            and      opinion   granting   summary      judgment.
            Contrarily, the trial judge must defer to those
            conclusions, …and should those conclusions be
            disputed, resolution of that dispute must be left to
            the trier of fact.

DeArmitt, supra at 595-96 (quoting Glaab v. Honeywell Intern., Inc.,

56 A.3d 693, 697–98 (Pa.Super. 2012) (quoting Summers v. Certainteed

Corp., 606 Pa. 294, 309–10, 997 A.2d 1152, 1161 (2010) (internal citations

and quotation marks omitted)). In other words, “The credibility and weight

to be attributed to the [expert’s] conclusions [are] not proper considerations

at summary judgment.” DeArmitt, supra at 598.

      Pennsylvania Rule of Appellate Procedure 903 sets forth the time in

which an appellant must file a notice of appeal and provides in relevant part:

         Rule 903. Time for Appeal

         (a) General rule. Except as otherwise prescribed by this
         rule, the notice of appeal required by Rule 902 (manner of
         taking appeal) shall be filed within 30 days after the entry
         of the order from which the appeal is taken.

Pa.R.A.P. 903(a).    Rule 1701 enumerates the actions a trial court has


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authority to perform, once a party initiates an appeal, and states in relevant

part as follows:

         Rule 1701. Effect of Appeal Generally

         (a) General rule. Except as otherwise prescribed by
         these rules, after an appeal is taken…, the trial court…may
         no longer proceed further in the matter.

         (b) Authority of a trial court or agency after appeal.
         After an appeal is taken…, the trial court…may:

         (1) Take such action as may be necessary to preserve
         the status quo, correct formal errors in papers relating to
         the matter, cause the record to be transcribed, approved,
         filed and transmitted, grant leave to appeal in forma
         pauperis, grant supersedeas, and take other action
         permitted or required by these rules or otherwise ancillary
         to the appeal or petition for review proceeding.

                                  *    *    *

         (3) Grant reconsideration of the order which is the
         subject of the appeal or petition, if:

            (i) an application for reconsideration of the order is
            filed in the trial court…within the time provided or
            prescribed by law; and

            (ii) an order expressly granting reconsideration of
            such prior order is filed in the trial court…within the
            time prescribed by these rules for the filing of a
            notice of appeal…with respect to such order, or
            within any shorter time provided or prescribed by
            law for the granting of reconsideration.

Pa.R.A.P. 1701(a), (b)(1), (b)(3). In other words, if a party files a notice of

appeal, the trial court generally lacks jurisdiction to act further on the merits

of the case. Pa.R.A.P. 1701(a). The trial court, however,

         has inherent power to amend its records, to correct

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         mistakes of the clerk or other officer of the court,
         inadvertencies of counsel, or supply defects or omissions in
         the record at any time. However, [a] major substantive
         change, such as the total withdrawal of an order relative to
         a motion of record does not constitute a corrective order
         within the inherent powers of the trial court or the court’s
         statutory authority. Absent a specific rule or statute, the
         only exception is to correct obvious technical mistakes
         (e.g., wrong dates) but no substantive changes can be
         made.

Manufacturers & Traders Trust Co. v. Greenville Gastroenterology,

SC, 108 A.3d 913, 921 (Pa.Super. 2015) (internal citations and quotation

marks omitted).

      Nevertheless, “even if an appeal is timely filed, a court may grant a

party’s motion to reconsider a final order, but only if (1) a motion to

reconsider is filed within the appeal period; and (2) the court expressly

grants reconsideration within the appeal period. Pa.R.A.P. 1701(b)(3). If a

court fails to act on a timely reconsideration motion within the appeal period,

it loses jurisdiction to do so.” Manufacturers & Traders Trust Co., supra

at 918 (emphasis added).

      Additionally, Section 5505 of the Judiciary Code governs modification

of orders, and provides:

         § 5505. Modification of orders

         Except as otherwise provided or prescribed by law, a court
         upon notice to the parties may modify or rescind any order
         within 30 days after its entry, notwithstanding the prior
         termination of any term of court, if no appeal from such
         order has been taken or allowed.

42 Pa.C.S.A. § 5505.

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           Under [S]ection 5505, the trial court has broad discretion
           to modify or rescind an order, and this power may be
           exercised sua sponte or invoked pursuant to a party’s
           motion for reconsideration. [T]he trial court may consider
           a motion for reconsideration only if the motion for
           reconsideration is filed within thirty days of the entry of
           the disputed order.     The mere filing of a motion for
           reconsideration, however, is insufficient to toll the appeal
           period. If the trial court fails to grant reconsideration
           expressly within the prescribed 30 days, it loses the power
           to act upon both the [motion] and the original order.

PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa.Super. 2007)

(internal citations and quotation marks omitted).

      Instantly, the court granted summary judgment in favor of Appellee on

October 14, 2016. Appellant filed both a notice of appeal and a motion for

reconsideration on Monday, November 14, 2016, the last day on which

Appellant could file a timely notice of appeal or the trial court could modify

the October 14th order.      See Pa.R.A.P. 903, supra; 42 Pa.C.S.A. § 5505,

supra.     The trial court indicates it realized, after Appellant had filed his

reconsideration    motion,   that   the    court   had   inadvertently   overlooked

Appellant’s response to Appellee’s summary judgment motion.                   (See

Memorandum, filed 11/30/16, at 1 unpaginated; Memorandum, filed

12/14/16, at 1.) Appellant attached to his response the report of a forensic

handwriting expert, who opined Appellant’s signature on the note was a

forgery.    The trial court, however, lost jurisdiction to rule on Appellant’s

reconsideration motion and modify its October 14th order because: (1)

Appellant filed a timely notice of appeal; and (2) the court did not expressly


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grant    reconsideration      on    or    before   November    14,      2016.    See

Manufacturers & Traders Trust Co., supra; PNC Bank, N.A., supra.

        As a result, the trial court stated:

           [Appellant] submitted a response to [Appellee’s] Motion for
           Summary Judgment, which set forth a specific fact
           creating a genuine issue of material fact. [Appellant]
           presents evidence of a handwriting expert that the
           signatures on the note were forged, including [Appellant’s]
           own signature. It is not for this [c]ourt to determine the
           validity of this expert or his testimony, but rather to
           determine if the facts create a genuine issue. Here, there
           is a genuine issue as to the signature. If the signature is a
           forgery, the note and the default of said note would have
           no effect on [Appellant].

           Based on the pleadings presented to this [c]ourt, it is
           determined that [Appellant] has met his burden of proving
           that there is a genuine issue of material fact and that
           summary judgment should not have been granted.

(See Trial Court Opinion, filed 12/16/16, at 3-4, unpaginated.)             See also

DeArmitt, supra; Lineberger, supra.                In light of the post-judgment

posture of this case, the trial court has asked us to vacate and remand the

matter for further action. In accord with the court’s request, we vacate and

remand for further proceedings.1

        Judgment     vacated;      case    remanded    for    further    proceedings.

Jurisdiction is relinquished.



____________________________________________


1
 Due to the disposition of this appeal, we deny as moot Appellant’s open
motion to move his case from #13 to #1 on the list for oral argument.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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