In re Objections & Exceptions to Upset Sale

303 A.3d 835

IN RE: Petition for OBJECTIONS AND EXCEPTIONS TO UPSET SALE

In re: Objections and Exceptions to Upset Sale

Appeal of: Milagros Abreu

In re: Objection and Exceptions to Upset Sale

Appeal of: Milagros Abreu

No. 650 C.D. 2020

No. 1356 C.D. 2020

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 14, 2023

Decided September 28, 2023

Reargument Denied November 20, 2023

Ronald L. Clever, Allentown, for Appellant Milagros Abreu.

Samuel E. Cohen, Allentown, for Appellee Yosaf Saleb.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION BY SENIOR JUDGE LEAVITT

Milagros Abreu (Owner) appeals an order entered by the Court of Common Pleas of Lehigh County (trial court), which overruled Owner's objections to the upset tax sale of the property located at 742 North 9th Street, Allentown (Property), by the Lehigh County Tax Claim Bureau (Tax Claim Bureau). ¹ Owner challenges, inter alia , the trial court's grant of intervention to Yosaf Saleb, the successful bidder on the Property. Upon review, we vacate the trial court's order granting intervention and remand the matter for proceedings consistent with this opinion.

Background

The Property was sold at an upset sale on September 20, 2017. On November 20, 2017, the Tax Claim Bureau filed a consolidated return, and the trial court confirmed the sale nisi. On December 19, 2017, Owner filed objections and exceptions to set aside the upset sale, asserting that the sale did not strictly comply with the notice requirement set forth in Section 607.1(a) of the Real Estate Tax Sale Law (Tax Sale Law), ² added by the Act of July 3, 1986, P.L. 351, 72 P.S. § 5860.607a. Owner's petition was docketed at No. 2017-TX-0060 (2017 Docket). On February 12, 2018, Owner filed another set of objections and exceptions to the confirmation nisi of the consolidated return that was docketed at No. 2018-TX-0002 (2018 Docket).

On March 2, 2018, Owner and counsel for the Tax Claim Bureau appeared before the trial court and agreed to set aside the upset sale of the Property. That day, the trial court issued orders setting aside the upset sale in both the 2017 and 2018 Dockets. At a separate docket No. 2017-TX-0055, the trial court issued an order granting the Tax Claim Bureau's petition for confirmation of distribution of sale proceeds of multiple parcels sold at the September 20, 2017, upset tax sale. This order stated that with regard to the parcels where there were objections filed, no distribution was to be made of the proceeds of the sales until the objections had been fully adjudicated. The order specifically listed the Property and the objections placed on the 2017 Docket but did not list the objections pending on the 2018 Docket. See Original Record (O.R.), 2017 Docket, Item 4, Exhibit C.

On March 12, 2018, at the 2017 Docket, Yosaf Saleb (Successful Bidder) filed an emergency motion to intervene and to vacate the March 2, 2018, order setting aside the September 20, 2017, upset sale. Successful Bidder argued that he had a vested interest in the Property and, therefore, the right to intervene. He also argued that Owner failed to comply with the Pennsylvania Rules of Civil Procedure and the local court rules by not serving him with her petitions to set aside. Successful Bidder contended that the trial court's order issued on March 2, 2018, deprived him of the "right to be heard[.]" O.R., 2017 Docket, Item 4, at 4, ¶12.

By order dated March 26, 2018, the trial court granted Successful Bidder's emergency motion; vacated the March 2, 2018, order; and scheduled a hearing for May 9, 2018, on Owner's objections and exceptions to the upset sale.

As of March 26, 2018, several orders had been issued. At the 2017 Docket, the order setting aside the upset sale was vacated and a hearing was scheduled on Owner's objections and exceptions. At the 2018 Docket, however, the order setting aside the upset sale remained in effect.

On May 4, 2018, Owner filed a praecipe to discontinue the petition to set aside filed at the 2017 Docket. On June 22, 2018, the trial court sua sponte issued an order consolidating the 2017 and 2018 Dockets. On June 26, 2018, the trial court issued a rule to show cause why it should not vacate its March 2, 2018, order setting aside the upset sale at the 2018 Docket and strike the praecipe for voluntary discontinuance placed on the 2017 Docket. The rule was returnable on July 5, 2018. On July 17, 2018, the trial court issued an order that (1) vacated the order of March 2, 2018; (2) struck Owner's praecipe for voluntary discontinuance and withdrawal of objections filed at the 2017 Docket; and (3) added Successful Bidder to the caption as an intervenor in this consolidated matter. The trial court issued a rule to show cause why the upset tax sale should not be set aside, directed Successful Bidder and the Tax Claim Bureau to file an answer to Owner's objections and exceptions filed at the 2017 and 2018 Dockets, and scheduled a hearing for August 30, 2018. O.R., 2017 Docket, Item 23; O.R., 2018 Docket, Item 9.

In the accompanying memorandum opinion, the trial court acknowledged that it issued the July 17, 2018, order more than 30 days after it issued its final order of March 2, 2018. The trial court explained that it had cause to do so because "had the objections been properly consolidated instead of separately docketed, both Orders would have been vacated by the March 26, 2018 Order of Court at [the 2017 Docket] and the inherently contradictory orders cannot stand." Trial Court Op., 7/17/2018, at 4; Supplemental Reproduced Record at 5b (S.R.R. ___) (emphasis in original). The trial court further noted that Owner should not be unjustly benefitted, to the detriment of Successful Bidder, by "a series of mistakes, errors, and unwritten policies of Lehigh County governing the docketing of objections and exceptions to Upset Tax Sales. A determination on the merits of [Owner's] objections and exceptions is the more equitable resolution of this matter." Trial Court Op., 7/17/2018, at 5; S.R.R. 6b.

With respect to its decision to strike Owner's praecipe for voluntary discontinuance filed at the 2017 Docket, the trial court explained that Pennsylvania Rule of Civil Procedure 229(c)³ permits the court to enter an order to prevent "unjust disadvantage" to a party especially where, as here, the purpose of discontinuance of the case was to "forum shop." Trial Court Op., 7/17/2018, at 5-6 (citing Pohl v. NGK Metals Corporation , 936 A.2d 43, 47 (Pa. Super. 2007), and Brown v. T.W. Phillips Gas & Oil Co. , 365 Pa. 155, 74 A.2d 105, 107 (1950) ); S.R.R. 6b-7b. The trial court opined that Successful Bidder "was entitled to defend against the request of [Owner] to set aside the tax upset sale," and "[b]y virtue of the inconsistent orders entered at the erroneously unconsolidated docket numbers," Successful Bidder "was denied this opportunity once [Owner] discontinued her action at [the 2017 Docket]." Trial Court Op., 7/17/2018, at 6; S.R.R. 7b.

Owner appealed the trial court's July 17, 2018, order to this Court. In In Re: "Petition for Objections and Exceptions to Upset Sale" (Appeal of: Milagros Abreu) , 201 A.3d 311 (Pa. Cmwlth., No. 1170 C.D. 2018, filed December 19, 2018), petition for allowance of appeal denied , 217 A.3d 186 (Pa. 2019), we quashed Owner's appeal for the stated reason that the July 17, 2018, order was interlocutory and not appealable.

On May 29, 2020, the trial court entered an order that overruled Owner's objections and exceptions and upheld the upset sale of the Property. Owner appealed.

Appeal

On appeal, ⁴ Owner raises three issues for our consideration. First, Owner argues that the trial court lacked jurisdiction to enter the order of July 17, 2018, at the 2018 Docket vacating the March 2, 2018, order that set aside the upset sale of the Property. Second, Owner argues that the trial court lacked jurisdiction to take further action at the 2017 Docket after the praecipe for discontinuance ended this case. Third, Owner argues that the trial court erred in granting Successful Bidder's emergency motion to intervene at the 2017 Docket absent a finding of extraordinary circumstances. We address the issues seriatim.

I. Trial Court's Jurisdiction at the 2018 Docket

We first consider whether the trial court had jurisdiction to issue its order of July 17, 2018, which vacated the order of March 2, 2018, setting aside the upset sale at the 2018 Docket. Owner argues that under the Judicial Code, ⁵ courts have no jurisdiction to alter a final order after expiration of the 30-day statutory period. Thus, Owner argues, the trial court lacked jurisdiction to enter another order after April 2, 2018.

We begin with a review of the Judicial Code. Section 5505 provides as follows:

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. § 5505 (emphasis added).

A court order may be modified after 30 days in limited circumstances. Where the error is evident on the face of the order or there has been a breakdown in the administration of the court, the court may amend its order beyond the 30-day appeal period. Board of Supervisors of Chartiers Township v. Quarture , 145 Pa.Cmwlth. 377, 603 A.2d 295, 298 (1992) ( Quarture ). This discretionary power is, however, limited. We have explained:

Generally, judgments regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstances " so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court. " Such circumstances have customarily entailed an oversight or act by the court, or failure of the judicial process, which

...