J-A20015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEVON SERVICE, LLC, AN 

ASSIGNEE OF CUSTOMERS BANK, 

SUCCESSOR TO BERKSHIRE BANK

Appellee

v.

JOHN M. HERMAN A/K/A JOHN

HERMAN

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2103 MDA 2016

Appeal from the Judgment Entered December 20, 2016

In the Court of Common Pleas of Berks County 

Civil Division at No(s): 14-18895

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

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 26, 2020

Appellant, John M. Herman a/k/a John Herman, appeals from the 

deficiency judgment entered against him, in the Berks County Court of 

Common Pleas, in favor of Appellee, Devon Service, LLC (“Devon”), an 

assignee of Customers Bank, Successor to Berkshire Bank. We affirm. 

In its opinion, the trial court fully and correctly set forth the relevant 

facts and procedural history of this case as follows:

[Appellant] secured a Commercial Line of Credit Agreement 

with Berkshire Bank in a principal amount up to 

$250,000.00 in October 2005. As security for the 

commercial line of credit, [Appellant] granted an openended mortgage (Mortgage) on [Appellant’s] real property

at 41-45 North 23rd Street, Mt. Penn, Berks County, 

Pennsylvania (Premises). The Mortgage was recorded on 

March 7, 2006, as Instrument #2006022875. The Credit 

Agreement was subsequently modified in [the] name of 
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Customers Bank, as successor to Berkshire Bank, in 

February 2012, with a Change in Terms Agreement and a 

restated Promissory Note. In October 2013, Customers 

Bank made demand under the Note for payment of the full 

balance of the Note and when the balance was not paid by 

[Appellant], the Note and Mortgage were placed into 

default. [Appellant] and Customers Bank entered into an 

agreement whereby [Appellant] consented to the Bank’s 

filing a mortgage foreclosure action upon the Premises and 

the entry of a judgment in foreclosure by consent order. 

The mortgage foreclosure action was filed to docket number 

13-24770 in the Court of Common Pleas of Berks County 

with a stipulated entry of judgment. On or about February 

4, 2014, Customers Bank, for value received, assigned all 

of its right, title, and interest in and to the Note and the 

Mortgage, as well as to the Judgment, to [Devon]. Devon

purchased the Premises at sheriff’s sale on February 7, 

2014[, for $3,700.00]. Devon then proceeded under the 

foreclosure docket by filing a Petition to Fix Fair Market 

Value (Fair Market Value Petition). 

Counsel for [Devon] served the Fair Market Value 

Petition...on July 10, 2014, along with a Rule to Show Cause, 

Notice to Defend and a Proposed Order by certified mail 

return receipt requested to [Appellant] at 3970 Perkiomen 

Avenue, Reading, PA 19606. On August 14, 2014, [Devon] 

served [Appellant] by mail, at the same address, with a 

Motion for an Order Making the Rule to Show Cause 

Absolute.[1] On August 20, 2014, the [court] entered an 

order fixing the fair market value of the property at 

$181,046.02. [Appellant] did not appeal that order. 

[Devon] filed a Complaint in September 2014[,] to docket 

number 14-18895 seeking to recover a deficiency judgment 

____________________________________________

1

In the foreclosure action, Appellant agreed to accept service at his business 

address. Devon filed its Fair Market Value petition as part of the foreclosure 

action and sent the petition and accompanying documents to Appellant at the 

agreed-upon address. No certified mailings related to the Fair Market Value 

petition were returned to Devon as either rejected or unclaimed. Appellant 

and Devon communicated about the Fair Market Value petition, which 

indicated Appellant’s actual notice of the filings; but he did not object to the 

form of service or formally respond to any of the Fair Market Value filings. 
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from [Appellant] in the amount of $96,979.85 plus interest 

at the rate of $15.24 per diem from August 26, 2014, the 

date of filing of the suit. In response to the Complaint, 

[Appellant] asserted by Preliminary Objection that he had 

not been properly served with the Petition to Fix Fair Market 

Value and moved to strike [Devon’s] request for attorneys’

fees. The [trial court overruled] all of [Appellant’s] 

Preliminary Objections on April 7, 2015. 

In January 2016, the [deficiency judgment] matter was 

reassigned to this [court]. Trial was scheduled for July 

2016, but counsel for both parties agreed to postpone trial 

and submit competing motions for summary judgment upon 

the sole issue in controversy: whether the Petition to Fix Fair 

Market Value had been properly served.[2] 

The parties filed their respective Motions for Summary 

Judgment in June 2016, argument was held on September 

19, 2016, and additional briefs were filed, at the [c]ourt’s 

request, on the issue of concurrent jurisdiction. The [c]ourt 

determined that concurrent jurisdiction doctrine did not 

foreclose this Judge’s review of the service question on 

Summary Judgment, even though [another jurist had]

previously ruled on the issue when raised by Preliminary 

Objection. On November 29, 2016, the [c]ourt entered an 

order granting [Devon’s] Motion for Summary Judgment 

and denying [Appellant’s] Motion for Summary Judgment. 

This [c]ourt filed an amended order on December 15, 2016, 

entering [a deficiency] judgment in favor of [Devon] for the 

amount of $96,979.85 plus interest. [Appellant] filed a 

timely appeal on December 23, 2016, followed by a Concise 

Statement of Errors Complained of on Appeal on December 

30, 2016. 

____________________________________________

2 Resolution of the service issue would decide the deficiency judgment matter

without the need for a trial. To summarize, if service of Devon’s Fair Market 

Value petition was deemed valid (or waived), then Appellant would be liable 

for the sums claimed because he failed to dispute them. On the other hand, 

if service of the Fair Market Value petition was deemed invalid, under 

applicable law Appellant could be discharged from all personal liability to 

Devon, upon Appellant’s filing of a petition to have the judgment marked 

satisfied, released and discharged as a matter of law. See 42 Pa.C.S.A. § 

8103(d). 
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(Trial Court Opinion, filed March 13, 2017, at 2-4). 

Appellant now raises eight issues on appeal:

(1) WHETHER APPELLATE REVIEW OF A FINAL ORDER 

ENTERING JUDGMENT ON ALL ISSUES SHOULD CONSIDER 

ALL ISSUES RAISED BY SUMMARY JUDGMENT MOTIONS 

EVEN WHEN THE [TRIAL] COURT’S [RULE] 1925[(A)] 

OPINION IS LIMITED TO ONE ISSUE?

(2) WHETHER THE DISPUTED FACT OF WHETHER [OFFICE 

MANAGER] WAS [APPELLANT]’S AUTHORIZED AGENT IS AN 

ISSUE OF MATERIAL FACT PRECLUDING SUMMARY 

JUDGMENT IN DEVON’S FAVOR?

(3) WHETHER SUMMARY JUDGMENT SHOULD HAVE BEEN 

GRANTED IN [APPELLANT]’S FAVOR DUE TO DEVON’S 

FAILURE TO PRODUCE EVIDENCE OF AUTHORIZED 

AGENCY?

(4) WHETHER, AS A MATTER OF FIRST IMPRESSION, THE 

SUPERIOR COURT SHOULD FIND THAT AN OFFICE 

MANAGER AUTHORIZED TO ACCEPT CERTIFIED MAIL FOR 

THE OFFICE IS NOT AUTHORIZED TO ACCEPT SERVICE OF 

PROCESS UNRELATED TO THE OFFICE ABSENT EXPRESS 

AUTHORITY?

(5) WHETHER RULES OF CONSTRUCTION REQUIRE THAT 

AUTHORIZED AGENTS MUST HAVE EXPRESS 

AUTHORIZATION?

(6) WHETHER THE DEFICIENCY JUDGMENT ACT REQUIRES 

LEGAL SERVICE OF PROCESS AND NOT MERE INFORMAL 

NOTICE?

(7) WHETHER THE AMOUNT OF THE ALLEGED DEBT IS A 

QUESTION OF DISPUTED FACT AND THUS IS A JURY 

QUESTION?

(8) WHETHER THE JUDGMENT ENTERED FOR $96,979.85 

IMPROPERLY INCLUDES $30,000.00 IN LEGAL FEES?

(Appellant’s Brief at 3-4). 
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As a prefatory matter, in civil cases generally, the failure to include 

issues in a Rule 1925(b) statement waives the issues for appellate review. 

T.M.W. v. N.J.W., ___ A.3d ___, 2020 PA Super 17 (filed January 31, 2020) 

(citing Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super. 2006) and 

McKeeman v. Corestates Bank, N.A., 751 A.2d 655 (Pa.Super. 2000)). 

Likewise, the trial court is not expected to guess what issues an appellant 

wants to raise on appeal; and an appellant’s Rule 1925(b) statement must be 

distinct enough for the trial court to identify and address the issues presented 

for review. Lineberger, supra at 148. Thus a Rule 1925(b) statement that

is too vague to allow the court to identify the issues raised on appeal can lead 

the court to find waiver and disregard any argument. Id. 

Moreover, arguments, defenses, or other grounds for relief must be 

raised at the first opportunity before the trial court in summary judgment

proceedings; otherwise, those grounds are waived on appeal. Devine v. 

Hutt, 863 A.2d 1160 (Pa.Super. 2004) (citing Grandelli v. Methodist Hosp., 

777 A.2d 1138, 1147-48 (Pa.Super. 2001) and Harber Philadelphia Center 

City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100 (Pa.Super. 2000), 

appeal denied, 566 Pa. 664, 782 A.2d 546 (2001)). This Court has explained:

Because, under Rule 1035.3, the non-moving party must 

respond to a motion for summary judgment, he...bears the 

same responsibility as in any proceeding, to raise all 

defenses or grounds for relief at the first opportunity. A 

party who fails to raise such defenses or grounds for relief 

may not assert that the trial court erred in failing to address 

them. To the extent that our former case law allowed 

presentation of arguments in opposition to summary 
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judgment for the first time on appeal it stands in derogation 

of Rules 1035.2 and 1035.3 and is not dispositive in this 

matter. The Superior Court, as an error-correcting court, 

may not purport to reverse a trial court’s order where the 

only basis for a finding of error is a claim that the 

responsible party never gave the trial court an opportunity 

to consider. ... 

More recently, we have reaffirmed the proposition that a 

non-moving party’s failure to raise grounds for relief in the 

trial court as a basis upon which to deny summary judgment 

waives those grounds on appeal. See Payton v. 

Pennsylvania Sling Co., 710 A.2d 1221, 1226 (Pa.Super.

1998) (concluding that party’s choice to argue that evidence 

was sufficient to establish element of cause of action in 

accordance with Rule 1035.3(a)(2) waived argument first 

raised on appeal that record should be supplemented under 

Rule 1035.3(b) to allow collection of additional evidence 

through discovery). Our application of the summary 

judgment rules in Payton establishes the critical 

importance to the non-moving party of the defense to 

summary judgment he...chooses to advance. A decision to 

pursue one argument over another carries the certain 

consequence of waiver for those arguments that could have 

been raised but were not. This proposition is consistent with 

our Supreme Court’s efforts to promote finality, and 

effectuates the clear mandate of our appellate rules 

requiring presentation of all grounds for relief to the trial 

court as a predicate for appellate review. ... 

Id. at 1105 (some internal citations omitted). 

Instantly, Appellant filed his court-ordered Rule 1925(b) statement, 

raising issues regarding (1) whether Devon is the assignee of the mortgage; 

(2) whether Appellant owes Devon any sum of money, as an issue of material 

fact generally; (3) whether Devon supported its claim for deficiency judgment 

against Appellant personally with sufficient evidence, as an issue of material 

fact generally; (4) whether Devon has a valid claim for legal fees in the 

amount claimed , as an issue of material fact generally; (5) whether Appellant 
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should be discharged from all personal liability to Devon because of improper 

service of the Fair Market Value petition, where Nadia Muret was not 

“authorized” to accept service of the petition, as her agency is an issue of 

material fact generally; (6) whether Nadia Muret was an “authorized agent” 

to accept certified mail for Appellant personally at the business address, as an 

issue of material fact generally; (7) whether Devon’s failure to serve Appellant 

personally with the Fair Market Value petition results in Appellant’s discharge 

from all personal liability to Devon. (See Appellant’s Rule 1925(b) Statement, 

filed 12/30/16, at 1-2; R.R. at 261a-262a). 

Appellant’s issues five and six on appeal are presented as questions of 

law on whether the Deficiency Judgment Act requires “express authorization” 

to accept service of a Fair Market Value petition and whether the law allows 

for “actual notice” in this context. These issues were not identified, included 

in, or reasonably suggested by the Rule 1925(b) statement. Appellant’s Rule 

1925(b) statement complains in a very general manner about the lack of 

personal service of the Fair Market Value petition and refers to his own 

affidavit declaring that his office manager was not his “authorized agent” to 

accept certified mail for Appellant personally and only he could accept service, 

but the Rule 1925(b) statement does not suggest any question of whether the 

Deficiency Judgment Act requires affirmative, express authorization to accept 

service of the Fair Market Value petition or the absolute prerequisite of 

personal service of the Fair Market Value petition or the adequacy of actual 
J-A20015-17

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notice in this context. Consequently, Appellant has waived issues five and six 

for appeal purposes, and we give them no further attention. See id. 

Furthermore, the record makes clear the only issue before the trial court 

during summary judgment proceedings was Appellant’s challenge to service 

of the Fair Market Value petition. Contrary to Appellant’s contention, his 

motion for summary judgment called into question only the service of Devon’s 

Fair Market Value petition and Devon’s compliance with Section 8103 of the 

Deficiency Judgment Act. In the summary judgment proceedings, Appellant 

did not present or develop argument on any of the line items or exact amounts 

due other than to state an alleged discrepancy in the total deficiency judgment 

claimed and contend generally that he was excused from all personal liability

on the basis of lack of proper service of the Fair Market Value petition. (See

Appellant’s Motion for Summary Judgment, filed 6/24/16; R.R. at 136a-151a). 

Appellant simply restated the alleged discrepancy in ¶ 33 of his answer to 

Devon’s summary judgment motion. (See Appellant’s Answer to Devon’s 

Motion for Summary Judgment, filed 6/24/16; R.R. at 131a). Therefore, the 

sole issue presented to the trial court on summary judgment was service of 

the Fair Market Value petition. 

Moreover, the trial court was correct in limiting its consideration to the 

issue of service of the Fair Market Value petition, because resolution of the 

service issue would decide the case without the need for a deficiency judgment 

trial. In other words, if service of the Fair Market Value petition was valid, 
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then Appellant would be liable for the sums claimed because he failed to 

dispute them in answer to the Fair Market Value petition and rule to show 

cause or in a timely appeal from the Fair Market Value order. If service of the 

Fair Market Value petition was invalid, applicable law would discharge all of 

Appellant’s personal liability to Devon, and the sums claimed would not 

matter. Thus, the summary judgment motions were limited to the issue of 

service of the Fair Market Value petition, which in turn would dispose of the 

deficiency judgment action. Consequently, Appellant’s seventh and eighth

issues regarding the precise amounts of the claimed debt and counsel fees are 

inappropriate for this appeal, as they were not properly before the trial court 

in the summary judgment proceedings or otherwise reserved for challenge in 

the deficiency judgment action. Therefore, Appellant cannot introduce his 

damages claims for the first time on this appeal.

3

 See Grandelli, supra. 

In Appellant’s remaining issues one through four, he complains his office 

manager, Ms. Nadia Muret, had no authority to sign for the certified mail

containing the Fair Market Value petition because he did not expressly 

“authorize” her to accept service for Appellant personally. Appellant contends 

Ms. Muret’s agency at Appellant’s place of business extended only to normal 

business matters but did not extend to his personal dealings. Appellant 

complains Devon did not attempt service by Sheriff or court order but only by 

____________________________________________

3 Although there was some discrepancy in the total damages sought, any 

inconsistency was resolved in the trial court; and the court’s amended order 

entered judgment for the corrected amount. 
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mail and, given the protections afforded debtors under the Deficiency 

Judgment Act, Devon had to prove proper service of the Fair Market Value 

petition. Appellant asserts Ms. Muret failed to check the “agent” box on the 

return receipt and her affidavit does not say Appellant “authorized” her to 

perform actions unrelated to the business, which left open a material issue of 

fact on the extent of Ms. Muret’s authority as Appellant’s agent. Appellant 

claims Devon failed to produce sufficient evidence to show Ms. Muret was an 

authorized agent to accept service of the Fair Market Value petition, which in 

turn precluded summary judgment in Devon’s favor. Appellant submits his

“actual notice” of the Fair Market Value petition was not enough to require him 

to respond to the petition. Appellant concludes this Court should reverse the 

order entering summary judgment for Devon, as the court should have 

entered summary judgment for Appellant; in the alternative, Appellant insists 

the case should be remanded for a trial. We disagree. 

Appellate review of an order granting summary judgment asks us 

whether the trial court abused its discretion or committed an error of law. 

Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347 (Pa.Super. 2006). 

Judicial discretion requires action in conformity with law on 

facts and circumstances before the trial court after hearing 

and consideration. Consequently, the court abuses its 

discretion if, in resolving the issue for decision, it misapplies 

the law or exercises its discretion in a manner lacking 

reason. Similarly, the trial court abuses its discretion if it 

does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal 

citations and quotation marks omitted). Our scope of review is plenary. 
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Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. 

denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). 

[W]e 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. All doubts as to the 

existence of a genuine issue of a material fact must be 

resolved against the moving party. 

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of [a] cause of 

action. Summary judgment is proper if, after the 

completion of discovery relevant to the motion, including 

the production of expert reports, an adverse party who will 

bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or defense 

which in a jury trial would require the issues to be submitted 

to a jury. In other words, whenever there is no genuine 

issue of any material fact as to a necessary element of the 

cause of action or defense, which could be established by 

additional discovery or expert report and the moving party 

is entitled to judgment as a matter of law, summary 

judgment is appropriate. Thus, a record that supports 

summary judgment either (1) shows the material facts are 

undisputed or (2) contains insufficient evidence of facts to 

make out a prima facie cause of action or defense. 

Upon appellate review, we are not bound by the trial court’s 

conclusions of law, but may reach our own conclusions. 

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) 

(internal citations and quotation marks omitted). 

The Deficiency Judgment Act was first passed during the Great 

Depression of the twentieth century “to deal with the inequity that an 
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execution creditor could purchase real estate for a [nominal] amount at a 

forced sale and still retain the full amount of his judgment against the debtor. 

The solution to this problem was to reduce the judgment by the fair market 

value of the property instead of the actual sale price.” Philip Green & Son, 

Inc. v. Kimwyd, Inc., 410 Pa. 202, 232-33, 189 A.2d 231, 205 (1963). 

The Deficiency Judgment Act applies whenever real property 

of the debtor has been sold in execution to the judgment 

creditor for a sum less than the amount of the judgment, 

interest and costs. Under the Deficiency Judgment Act, the 

creditor’s judgment against the debtor is reduced by the fair 

market value of the property purchased by the creditor 

rather than by the actual sale price of the property. The 

objective of the Deficiency Judgment Act is to relieve a 

debtor from further personal liability to the judgment 

creditor when the real property taken by the judgment 

creditor on an execution has a fair market value on the date 

of sale sufficient so that the judgment creditor can dispose 

of the property to others without a further loss. 

Horbal v. Moxham Nat. Bank, 548 Pa. 394, 403, 697 A.2d 577, 581-82

(1997). A petition to fix fair market value is necessary only if the judgment 

creditor seeks to collect the balance due on a judgment. Devon Service, LLC 

v. S & T Realty, 171 A.3d 287, 291 (Pa.Super. 2017). To recoup any unpaid 

indebtedness not satisfied by the sale of the property, a judgment creditor 

must file a petition to fix fair market value within six months of the sale of 

collateral. 42 Pa.C.S.A. § 5522(b) (relating to six months’ limitation). A 

judgment creditor must file the Fair Market Value petition “as a supplementary 

proceeding in the matter in which the real property was sold to the judgment 

creditor in execution proceedings (i.e. in the foreclosure action). Home Sav. 
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and Loan Co. of Youngstown, Ohio v. Irongate Ventures, LLC, 19 A.3d 

1074, 1080 (Pa.Super. 2011), appeal denied, 611 Pa. 670, 27 A.3d 225 

(2011). “If the judgment creditor fails to file a [Section] 8103(a) petition to 

fix the fair market value of the property within six months of the sheriff's sale, 

then the debtor may file a petition to have the judgment marked satisfied, 

released and discharged as a matter of law.” Id. at 1078 (citing 42 Pa.C.S.A. 

§ 8103(d)). 

Section 8103 of the Deficiency Judgment Act in relevant part provides:

§ 8103. Deficiency judgments

(a) General rule.─Whenever any real property is sold,

directly or indirectly, to the judgment creditor in execution 

proceedings and the price for which such property has been 

sold is not sufficient to satisfy the amount of the judgment, 

interest and costs and the judgment creditor seeks to collect 

the balance due on said judgment, interest and costs, the 

judgment creditor shall petition the court to fix the fair 

market value of the real property sold. The petition shall 

be filed as a supplementary proceeding in the matter 

in which the judgment was entered. ... 

(b) Effect of failure to give notice.─ Any debtor and any 

owner of the property affected thereby, who is neither 

named in the petition nor served with a copy thereof or 

notice of the filing thereof as prescribed by general 

rule, shall be deemed to be discharged from all personal 

liability to the judgment creditor on the debt, interest and 

costs, but any such failure to name such person in the 

petition or to serve the petition or notice of the filing thereof 

shall not prevent proceedings against any respondent 

named and served.

(c) Action on petition.─

(1) If no answer is filed within the time prescribed by 

general rule..., the court shall determine and fix as the 
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fair market value of the property sold the amount thereof 

alleged in the petition to be the fair market value.

* * *

(d) Action in absence of petition.─If the judgment 

creditor shall fail to present a petition to fix the fair market 

value of the real property sold within the time after the sale 

of such real property provided by section 5522 (relating to 

six months limitation), the debtor, obligor, guarantor or any 

other person liable directly or indirectly to the judgment 

creditor for the payment of the debt, or any person 

interested in any real estate which would, except for the 

provisions of this section, be bound by the judgment, may 

file a petition, as a supplementary proceeding in the matter 

in which the judgment was entered, in the court having 

jurisdiction, setting forth the fact of the sale, and that no 

petition has been filed within the time limited by section 

5522 to fix the fair market value of the property sold, 

whereupon the court, after notice as prescribed by general 

rule, and being satisfied of such facts, shall direct the clerk 

to mark the judgment satisfied, released and discharged.

42 Pa.C.S.A. § 8103(a)-(d) (some emphasis added). 

Pennsylvania Rule of Civil Procedure 3283 governs service of a Fair 

Market Value petition and provides:

Rule 3283. Service

(a)(1) If there is an attorney of record, service shall be 

made upon the respondent’s attorney of record pursuant to

Rule 440(a)(1)(i) or (ii). 

(2) If there is no attorney of record, service shall be made

(i) by the sheriff or a competent adult in the manner 

prescribed by Rule 402(a) for service of original process, 

or

(ii) by the petitioner mailing a copy in the manner 

prescribed by Rule 403, or
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(iii) if service cannot be made as provided in 

subparagraphs (i) or (ii), pursuant to special order of 

court as prescribed by Rule 430.

(b) The person serving the petition shall file a return of 

service as provided by Rule 405.

Pa.R.C.P. 3283 (emphasis added). Rule 403 provides: 

Rule 403. Service by Mail

If a rule of civil procedure authorizes original process to be 

served by mail, a copy of the process shall be mailed to the 

defendant by any form of mail requiring a receipt signed by 

the defendant or his authorized agent. Service is 

complete upon delivery of the mail.

(1) If the mail is returned with notation by the postal 

authorities that the defendant refused to accept the mail, 

the plaintiff shall have the right of service by mailing a 

copy to the defendant at the same address by ordinary 

mail with the return address of the sender appearing 

thereon. Service by ordinary mail is complete if the mail 

is not returned to the sender within fifteen days after 

mailing.

(2) If the mail is returned with notation by the postal 

authorities that it was unclaimed, the plaintiff shall make 

service by another means pursuant to these rules.

Note: The United States Postal Service provides for 

restricted delivery mail, which can only be delivered to the 

addressee or his authorized agent. Rule 403 has been 

drafted to accommodate the Postal Service procedures with 

respect to restricted delivery. 

Pa.R.C.P. 403. If the judgment debtor fails to respond to the petition to fix 

fair market value, then “the court shall determine and fix as the fair market 

value of the property sold the amount thereof alleged in the petition to be the 

fair market value.” 42 Pa.C.S.A. § 8103(c)(1). The petition to fix fair market 
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value is a supplementary proceeding in the original foreclosure action. 42 

P.C.S.A. § 8103(a). An order fixing fair market value is immediately 

appealable. See, e.g., Walnut St. Federal Sav. and Loan Ass’n v. 

Bernstein, 394 Pa. 353, 147 A.2d 359 (1959) (reviewing appeal from order 

fixing fair market value and stating order is award equivalent to assessment 

of damages in personal injury case or accounting balance in equity); Union 

Nat. Bank of Pittsburgh v. Crump, 349 Pa. 339, 37 A.2d 733 (1944) 

(reviewing appeal from trial court order fixing fair market value); Devon 

Service, supra (reviewing appeal from trial court order granting petition to 

fix fair market value and decree fixing fair market value). 

Instantly, Customers Bank filed a mortgage foreclosure action at docket 

no. 13-24770 on November 4, 2013, with a stipulated entry of judgment. 

Customers Bank assigned its rights to Devon, who purchased Appellant’s 

property at a sheriff’s sale on February 7, 2014. In the foreclosure action, 

Appellant agreed to accept service at his business address. Counsel for Devon

timely filed and served the Fair Market Value petition on July 10, 2014, along 

with a Rule to Show Cause, Notice to Defend and a Proposed Order by certified 

mail/return receipt requested on Appellant at the agree-upon address of 3970 

Perkiomen Avenue, Reading, PA 19606. Ms. Muret signed the return receipt 

requested as the office manager at the agreed-upon business address. No 

certified mailings related to the Fair Market Value petition were returned to 

Devon by the postal service as either rejected or unclaimed. Further, 
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Appellant and Devon communicated about the Fair Market Value petition, 

which indicated Appellant’s actual notice of the filings. Nevertheless, 

Appellant did not object to the form of service or formally respond to any of 

the Fair Market Value filings. On August 20, 2014, the court fixed the fair 

market value of the property sold. Appellant did not appeal that order. Thus, 

Appellant waived any issue regarding service of the Fair Market Value petition 

by failing to object during the Fair Market Value proceedings. 

Moreover, nothing in the record suggests Devon knew or had reason to 

know that service might have been flawed. Therefore, under the rules 

governing service in this context, service was complete upon delivery of the 

mail. See Pa.R.C.P. 403. If Appellant had timely objected to the manner of 

service, then Devon would have been able to correct any alleged problems 

expeditiously. Appellant chose to ignore the pleadings and engage in a risky 

strategy. Further, Appellant did not appeal the court’s order fixing fair market 

value, which arguably was the last stage in the proceedings where he could 

have challenged service of the Fair Market Value petition. See Walnut St. 

Federal Sav. and Loan Ass’n, supra. 

Instead, Appellant waited until Devon filed its deficiency judgment 

action to argue improper service of the Fair Market Value petition. At a pretrial conference, both parties agreed to postpone trial and submit motions for 

summary judgment on the issue of service of the Fair Market Value petition. 

The trial court reasoned as follows:
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In the instant matter, [Devon] served [Appellant] with the 

Petition to Fix Fair Market Value by certified mail, return 

receipt requested, to 3970 Perkiomen Avenue, Reading, PA

19606, the address [Appellant] had designated for service 

on his Acceptance of Service of the Complaint in 

Foreclosure. The mail was accepted and signed for by Nadia 

Muret, the Office Manager of NAI Keystone Commercial & 

Industrial, LLC (NAI), where [Appellant] kept his office as a 

part owner and sales agent of NAI. As [Appellant] himself 

did not sign for the mail, [Devon] must provide an 

evidentiary basis to show that Ms. Muret was an authorized 

agent of [Appellant].

The business which [Appellant] owned in part, NAI, 

employed Ms. Muret as an Office Manager at the time when 

the Petition to Fix Fair Market Value was served on July 10, 

2014. In an Affidavit, Ms. Muret freely admits that in the 

course of her duties as Office Manager she routinely signed 

for certified mail addressed to the real estate sales agents 

at NAI, including [Appellant]. It was regular practice for Ms. 

Muret to sign for certified mail and then place it on the desk 

of the addressee. At no time did [Appellant] instruct Ms. 

Muret, his Office Manager, not to sign for certified mail 

addressed to him. Ms. Muret also confirmed her signature 

on the return receipt card for the Petition to Fix Fair Market

Value. 

Furthermore, [Appellant] admitted that on or about July 10, 

2014[,] he had knowledge that the Petition to Fix Fair 

Market Value was filed to the foreclosure docket. 

[Appellant] also later emailed Customers Bank to arrange a 

time to discuss the deficiency judgment and at no point did

[Appellant] file a Notice of Appeal or a response to the 

Petition or Order. 

In light of the totality of the evidence presented by [Devon]

and the evidence in the record, this [c]ourt determined that 

Ms. Muret, [Appellant’s] Office Manager, who accepted mail

and documents for [Appellant] without restriction or 

limitation, was, in fact, an agent of [Appellant] authorized 

to accept the delivery of certified mail. Accordingly, the 

[c]ourt found that [Appellant] was properly served with the 

Petition to Fix Fair Market Value. [The court] agrees with 

[Devon] that [Appellant’s] after-the-fact effort to deny the 
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authority of his Office Manager and agent should fail. 

Thus, [the court] determined that [Devon was] entitled to 

summary judgment as a matter of law and [Appellant] was 

not. 

(Trial Court Opinion at 7-8). We accept the court’s analysis. Devon 

consistently and steadfastly argued that Appellant had waived any objection 

to service of the Fair Market Value petition. The trial court saw fit to consider

the service issue by way of summary judgment because it would remove the 

need for a trial in the deficiency judgment action. Based upon the foregoing, 

we conclude Appellant waived his challenge to service of the Fair Market Value 

petition when he failed to raise it in the Fair Market Value proceedings. Even 

if Appellant had properly preserved the issue, the trial court concluded the 

issue failed on the merits. Accordingly, we affirm. See Boyer v. Walker, 

714 A.2d 458 (Pa.Super.1998) (stating appellate court may affirm decision of 

trial court on any basis if that decision is correct); Alco Parking Corp. v. 

Public Parking Authority of Pittsburgh, 706 A.2d 343 (Pa.Super.1998), 

appeal denied, 555 Pa. 725, 725 A.2d 178 (1998) (stating where trial court 

has reached correct result, appellate court can sustain decision for any 

reason). 

Judgment affirmed. 
J-A20015-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/26/2020