J-A19028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LIBERTY PHILADELPHIA REO, LP IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

EFL PARTNERS, V, L.P., EFL PARTNERS 

X, L.P. AND

EFL PARTNERS IX, L.P., EFL PARTNERS I, 

L.P.,

LISE A. MILLER AND JOHN J. KONTRA

No. 3396 EDA 2015

Appeal from the Order Entered October 8, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 100100314

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 08, 2016

Liberty Philadelphia REO, LP (Liberty) appeals from the order entered 

in the Court of Common Pleas of Philadelphia County on October 8, 2015, 

denying its petition to fix fair market value of the Spruce Street Properties, 

owned by debtors EFL Partners V, LP, and EFL Partners X, LP (collectively 

EFL).1 In this timely appeal, Liberty argues the trial court erred in denying 

the petition: (1) based upon a purported lack of jurisdiction due to the 

matter being on appeal; (2) when EFL failed to take the necessary steps to 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 We will explain the identities of all the defendant/appellees infra.
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stay execution on a money judgment during the pendency of the appeal; 

and (3) without tolling the statutory six-month period for the filing of such 

petition. After a thorough review of the submissions by the parties, relevant 

law, and the certified record, we agree with Liberty that the trial court erred 

in determining it lacked the jurisdiction to entertain the petition due to the 

pendency of an appeal of other aspects of the matter. Accordingly, we 

reverse and remand for action consistent with this decision.

EFL has filed their own appeal, consolidated with this appeal by order 

of our Court dated December 10, 2015. That appeal is predicated on the 

assumption that the trial court correctly dismissed Liberty’s petition to fix 

fair market value and claims the statutory six-month period for filing a 

petition to fix fair market value has expired, thereby preventing Liberty from 

refiling the petition. As will be discussed below, that argument is unavailing.

This matter arises from a confessed judgment taken against EFL on 

January 5, 2010, in the amount of $11,214,861.05, plus per diem interest 

and attorneys’ fees and costs. Liberty is the successor in interest to 

Republic First Bank (Republic) which had loaned money to EFL for the 

development of the Waterbridge Properties.2 The procedural history of this 

____________________________________________

2 EFL Partners V and EFL Partners X (EFL) borrowed approximately $7.5 

million from Republic. This amount was later increased to approximately 

$7.8 million and then to approximately $9.5 million. EFL were the named 

parties on the promissory note, which was subject to a suretyship and 

guarantee agreement from EFL Partners IX, LP; EFL Partners I, LP; John J. 

(Footnote Continued Next Page)
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matter defines tortured,3and includes multiple and overlapping appeals of a 

variety of issues. 

As best as we can discern, on February 26, 2010, EFL filed a petition 

to open/strike the confessed judgment. The petition was denied and EFL 

appealed (the first appeal), claiming the trial court had failed to, sua sponte, 

examine the reasonableness of the award of attorneys’ fees.4 While this 

appeal was pending, Republic executed on the judgment and caused the sale 

of the Waterbridge Properties. While the appeal was still pending, on April 

4, 2011, Republic filed a motion to fix fair market value, a hearing for which 

was scheduled on May 12, 2011. That hearing was later rescheduled to June 

23, 2011. However, on June 8, 2011, a panel of this Court issued its 

decision in the first appeal, vacating the judgment and remanding for a 

hearing on the reasonableness of the attorneys’ fees. See Republic v. EFL 

Partners, 31 A.3d 738 (Pa. Super. 2011) (unpublished memorandum).

On June 24, 2011, in response to the Superior Court decision, but 

before the certified record had been returned to the trial court,5 Republic 

(Footnote Continued) _______________________

Kontra, Jr.; and Lise A. Miller. We believe this explains the identities of the 

defendant/appellees.

3

In this, we agree with the trial court’s assessment of the history of this 

matter. See Trial Court Opinion, 12/10/2015 at 1.

4 The attorneys’ fees were approximately $1.5 million.

5 The order vacating judgment pursuant to the Superior Court’s decision was 

not docketed until July 27, 2011.

(Footnote Continued Next Page)
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filed a motion to modify the confessed judgment by eliminating the award of 

attorneys’ fees. On June 23, 2011, the hearing on the motion to fix fair 

market value was continued to September 13, 2011. In the interim, despite 

Republic having filed a motion seeking to forego attorneys’ fees, pursuant to 

the Superior Court order, the trial court scheduled a hearing for August 2, 

2011 to consider the reasonableness of the attorneys’ fees. Nevertheless, 

on July 12, 2011, the trial court entered an order amending the confessed 

judgment by eliminating the award of attorneys’ fees. However, the order 

left the per diem interest rate as stated in the original judgment. On July 

27, 2011, as previously noted, the Superior Court’s order vacating judgment 

and remanding for a hearing was docketed. On August 9, 2011, EFL filed its 

second appeal, this time claiming the trial court did not have the authority to 

act upon Republic’s motion to modify in light of the Superior Court’s order 

vacating judgment. A panel of this Court found EFL’s claim waived on 

appeal.6

In February, 2013, a hearing was held to fix fair market value, after 

which the trial court determined the fair market value of the Waterbridge 

Properties be $8.4 million, leaving a deficiency judgment of approximately 

(Footnote Continued) _______________________

6 Essentially, EFL argued the entire judgment was stricken, thereby 

returning the matter to the procedural standing prior to the entry of the 

confessed judgment. The Superior Court found this argument to have been 

waived. See Liberty v. EFL Partners V, LP and EFL Partners X, LP., 55 

A.3d 141 (Pa. Super. 2012) (unpublished memorandum). 
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$4 million. EFL appealed (the third appeal) challenging the fair market value 

determination and the per diem rate. The Superior Court upheld the 

determination of fair market value but reversed the per diem determination. 

See Liberty v. EFL, 100 A.3d 292 (Pa. Super. 2014) (unpublished 

memorandum). EFL then appealed that part of the order upholding the fair 

market value to the Pennsylvania Supreme Court. While that appeal was 

pending, the trial court, pursuant to the Superior Court order, recalculated 

the per diem interest from $2,444.31 to $498.69, and reduced the deficiency 

judgment to approximately $2.6 million. See Order, 6/18/2014. EFL 

subsequently appealed (the fourth appeal) that recalculation, arguing the 

trial court had no jurisdiction to act while the Supreme Court appeal was 

pending. In June, 2015, the Supreme Court denied allowance of appeal 

regarding the third appeal, thereby allowing the previously determined fair 

market value of the Waterbridge Properties to stand. See Liberty v. EFL, 

117 A.3d 298 (Pa. 2015) (table).

Because a deficiency judgment remained, and EFL had not posted a 

supersedeas bond, Liberty sought execution against the Spruce Street 

Properties, the property that is the subject of the instant appeal. The 

property was sold at sheriff’s sale while the fourth appeal7 was pending. 

____________________________________________

7 The appeal to the Superior Court challenging the jurisdiction of the trial 

court to recalculate the per diem and deficiency judgment while the 

Supreme Court appeal was pending.
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Thereafter, on October 6, 2015, Liberty filed its petition to fix fair market 

value. This petition was denied by the trial court on the grounds the fourth 

appeal was still pending. See Order, 10/8/2015. Although reconsideration 

was denied, the trial court amended its original order specifically allowing 

Liberty to refile its petition to fix fair market value “when the appellate court 

returns/relinquishes jurisdiction back to the trial court.” See Order 

10/27/2015. Our review of the certified record and of appellate records 

leads us to believe the fourth appeal was resolved by our Court on 

September 15, 2015. See Liberty Philadelphia REA [sic], LP v. EFL 

partners V, LP & EFL Partners X, LP, 2015 WL 6550771 (Pa. Super. 

2015) (unpublished memorandum). EFL sought reargument, which was 

denied in November, 2015. The certified record appears to have been 

returned to the trial court by mid-April, 2016.8

The central question before us is whether the trial court retained 

subject matter jurisdiction over the matter while it was still pending on 

appeal. “Because the question of subject matter jurisdiction is purely one of 

law, our standard of review is de novo, and our scope of review is plenary.” 

In re B.T., 82 A.3d 431, 434 (Pa. Super. 2013) (citation omitted).

Here, when Liberty sought to fix the fair market value of the Spruce 

Street Properties, the trial court denied the motion pursuant to Pa.R.A.P. 

____________________________________________

8 The Superior Court docket shows the acknowledgement of record remittal 

to the court of common pleas on April 13, 2016.
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1701(a) that, generally, divests the trial court of jurisdiction over a matter 

once an appeal has been taken. Specifically, the rule states: 

(a) General rule. Except as otherwise prescribed by these 

rules, after an appeal is taken or review of a quasijudicial order 

is sought, the trial court or other government unit may no longer 

proceed further in the matter.

Pa.R.A.P. 1701(a).

Relevant to this matter, are the exceptions provided at Pa.R.A.P. 

1701(b)(1) and (c), which state:

(b) Authority of a trial court or agency after appeal. After 

an appeal is taken or review of a quasijudicial order is sought, 

the trial court or other government unit 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.

***

(c) Limited to matters in dispute. Where only a particular 

item, claim or assessment adjudged in the matter is involved in 

an appeal, or in a petition for review proceeding relating to a 

quasijudicial order, the appeal or petition for review proceeding 

shall operate to prevent the trial court or other government unit 

from proceeding further with only such item, claim or 

assessment, unless otherwise ordered by the trial court or other 

government unit or by the appellate court or a judge thereof as 

necessary to preserve the rights of the appellant.

Pa.R.A.P. 1701(b)(1), (c) (emphasis added).

After a thorough review of this matter, we are convinced Liberty’s 

petition to fix fair market value of the Spruce Street Properties was ancillary 
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to the then pending fourth appeal. Additionally, we believe the limited issue 

involved in the fourth appeal did not operate to divest jurisdiction from the 

trial court regarding the wholly separate issue involved in Liberty’s petition. 

Accordingly, we hold that 1701(b)(1) and (c) applies. 

The Rules of Appellate Procedure do not define what constitutes an 

ancillary proceeding. However, “ancillary” is generally defined as:

Subordinate; aiding. A legal proceeding that is not the primary

dispute but which aids the judgment rendered in or the outcome

of the main action. A descriptive term that denotes a legal claim,

the existence of which is dependent upon or reasonably linked to 

a main claim.

West’s Encyclopedia of American Law, ed. 2, 2008, The Gale Group, Inc.

Here, Liberty sought to fix the fair market value of the Spruce Street 

Properties while the issues on appeal addressed questions directly related to 

the valuation the Waterbridge Properties; the issue before the Superior 

Court was whether the trial court could amend the amount of the deficiency 

judgment and per diem rate while the Supreme Court appeal was pending.9 

The valuation of the Spruce Street Properties was not the primary dispute 

that was on appeal, although it was reasonably linked to the main issue, the 

satisfaction of the confessed judgment. Accordingly, we believe the trial 

____________________________________________

9 We reiterate that the Supreme Court declined to accept EFL’s appeal 

regarding the fair market value of the Waterbridge properties in June of 

2015. Accordingly, only EFL’s appeal regarding the trial court’s jurisdiction 

to determine per diem interest was pending at the time Liberty filed the 

petition to fix fair market value of the Spruce Street Properties was filed. 
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court erred when it determined it had no jurisdiction to decide the petition to 

fix the fair market value.

Nonetheless, even if we are incorrect regarding the ancillary nature of 

Liberty’s petition to fix fair market value, the subject matters of the pending 

appeal and the petition were sufficiently distinct to allow for the application 

of 1701(c).

EFL had challenged the determination of fair market value of the 

Waterbridge Properties and the trial court’s subsequent recalculation of the 

per diem interest rate. Both of these issue arose from the Superior Court’s 

resolution of ESL’s third appeal. Rule 1701(c) allows a trial court to retain 

jurisdiction and proceed on matters when only a “particular item, claim or 

assessment” is at issue in the pending appeal. The underlying subject 

matter of EFL’s then pending fourth appeal was the amount of the deficiency 

judgment and the per diem interest rate calculation performed by the trial 

court. The limited nature of that appeal operated to give effect to Rule 

1701(c), allowing the trial court to proceed on matters not involved in the 

appeal.

We believe our resolution of this matter is supported by our Court’s 

prior determination of EFL’s fourth appeal, wherein EFL argued the trial court 

did not have jurisdiction to recalculate the deficiency judgment and per diem 

rate while the prior appeal was pending before the Supreme Court. 

However, a panel of our Court held, based on Pa.R.A.P. 1701(b)(1) and (c), 
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that the trial court did have said jurisdiction. In relevant part, our Court 

stated:

Liberty argues that the interest calculation was not at issue in 

the petition for allowance of appeal; therefore, the calculation 

falls under the exception set forth in Rule 1701(b)(1) and (c). 

Liberty's Brief at 16. We agree.

In its last appeal to this Court, EFL set forth two issues. First, it 

challenged the fair market value calculation. Second, it 

challenged the trial court's calculation of interest. This Court held 

that the fair market value calculation was correct, but the 

interest calculation was incorrect. In other words, EFL won on 

the issue of the interest calculation; therefore, its petition for 

allowance of appeal to our Supreme Court concerned only the

fair market value issue. Accordingly, the issue as to interest was 

no longer in dispute, and the trial court properly acted in 

recalculating the judgment.

Liberty v. EFL, 2015 WL 6550771, at *3.

In light of the above, we find the trial court erred in not applying Rule 

1701(c), which would have allowed the trial court to act upon Liberty’s 

petition to fix fair market value.

Because of our resolution of this matter based upon Liberty’s first 

issue, we need not address Liberty’s second and third issues.10

____________________________________________

10 We also note that EFL has not challenged the propriety of the Sheriff’s sale 

at which the Spruce Street Properties were sold. That sale took place in 

April 2015, during the pendency of the Supreme Court appeal. Indeed, 

there is no question that the sale of the Spruce Street Properties was proper 

despite the pending appeal. It is logical that the trial court would retain the 

jurisdiction to undertake any subsequent action directly related to Sheriff’s 

sale. 
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In the consolidated appeal, EFL argues “Liberty’s right to re-file a 

petition to fix fair market value of the Spruce Street Properties is time 

barred.” See EFL Brief at 6. This argument is based on the presumption 

that the trial court properly denied Liberty’s petition in the first instance. In 

its argument, EFL admits that Liberty’s petition instantly at issue was timely. 

Id. at 7. Because we have determined the trial court erred in denying that 

petition, and we are remanding for further proceedings pursuant to that 

petition, it is clear that EFL’s argument is without merit. Additionally, we 

believe the trial court’s order of October 27, 2015, that granted Liberty 

permission to refile the petition after this appeal was resolved, would have 

acted to toll to the six month time limit. Accordingly, EFL is not entitled to 

relief on its claim.

Therefore, we reverse the Order of October 8, 2015, denying Liberty’s 

petition to fix fair market value based upon a lack of jurisdiction. The trial 

court is directed to hold a hearing on the merits of that petition as soon as 

practical upon the remand of the certified record.

Order reversed. This matter is remanded for action consistent with 

this decision. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2016