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- A11019

- 22 2023 PA Super 143

WILLIAM SCHLUTH

v.
KRISHAVTAR, INC. AND BAKRUSHNA PANCHAL

Appellants : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2088 EDA 2021
Appeal from the Order Entered September 7, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 170602871 WILLIAM SCHLUTH

v.
KRISHAVTAR, INC. AND BAKRUSHNA PANCHAL

Appellants : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2089 EDA 2021
Appeal from the Order Entered September 7, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 170603382

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J. CONCURR ING OPINION BY BOWES, J.: FILED JULY 31, 2023
I agree with the Majority that the trial court lacked jurisdiction to dispose of Appellant’s petitions to mark judgments satisfied pursuant to 42 Pa.C.S. § 8103 while the mortgage foreclosure judgment was on appeal. See Majority Opinion at 12

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- 22. I further agree with the Majority that t he trial court erred to the extent that it purported to calculate a “deficiency judgment” onJ

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remand following the First Appeal , as there is no record evidence that the September 2020 sale price of $600,000 was the fair market value of the
pr operty. See Majority Opinion at 23

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. I write separately to offer a more direct analysis of one issue and to expound upon another. First, Rule 1701(a) of our Rules of Appellate Procedure provides that, generally speaking, “ after an appeal is taken

. . . , the trial court or other government unit may no longer proceed further in the matter. ” Pa.R.A.P. 1701(a). Our Supreme Court has held that whether Rule 1701(a) precludes a trial court from taking a particular action while an appeal is pending turns on whether that action is part of the same “matter” on appeal or “connected to, but separate from, the underlying action.” Old Forge Sch. Dist. v. Highmark, Inc. , 924 A.2d 1205, 1211 (Pa. 2007) (holding request for attorney fees was a separate matter such that Rule 1701(a) did not deprive the trial court of jurisdiction to rule upon it). See also Rosenberg v. Holy Redeemer Hosp. , 506 A.2d 408, 414 (Pa.Super. 1986) (observing that the trial court had jurisdiction to act upon “sup plementary motions” for contempt and for a lift of a discovery stay “inasmuch as it was clearing up matters ancillary to the appeal”).J

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Although the D eficiency Judgment A ct (“DJA”) refers to petitions filed by creditors and debtors alike as “supplementary proceedings,” 1 as the Majority properly sua sponte observe s , this Court has held that Rule 1701(a) deprives a trial court of jurisdiction to mark a judgment satisfied where, as in the case sub judice , the validity and amount of judgment that would be so marked was at issue on appeal. See , e.g. , Leasing Serv. Corp. v. Benson , 464 A.2d 402, 410 (Pa.Super. 1983). In other words, to the extent that Appellants’ § 8103(d) petitions, if meritorious, required the court to discharge a judgment of uncertain validity and amount, they were not “supplementary” for purposes of Rule 1701(a). Consequently, the trial court la cked jurisdiction
to entertain them. Second, th e Majority indicates that “ [ o ] ur decision today does no more than to conclude that the trial court did not possess jurisdiction to consider the [§] 8103(d) petitions.” Majority Opinion at 2 5 . However, the Ma jority also goes on to submit that the six

- month clock for Schluth to file a DJA petition to fix fair market value will only begin to run once jurisdiction over these cases is returned to the trial court, opining that : [ t ] he return of these cases to the tr ial court when it again regains jurisdiction may be the first time in these lengthy proceedings

_________________ __________ ______ ____ _______ 1 See 42 Pa.C.S. §§ 8103(a) (providing that a petition to fix fair market value in order to seek the balance due on a judgment follow ing execution proceedings “ shall be filed as a supplementary proceeding in the matter in which the judgment was entered ”); 8103(d) (indicating that a petition to have a judgment marked satisfied, released, and discharged is to be filed “as a supplementary proceeding in the matter in which the judgment was entered”).J

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when the trial court may be able to consider a deficiency judgment petition to fix the fair market value of the property sold and to arrive at a deficiency judg ment

. Id . at 2 5

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. I deem it appropriate to delve into this pronouncement further . In particular, I believe we should examine whether Appellants or Schluth were, respectively, able or required to invok e the DJA while the foreclosure judgment was pending on appeal. I begin by examining plain language of the
DJA statute. As indicated above, the DJA’s general rule is as follows:
W henever 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 cost s, the judgment creditor shall petition the court to fix the fair market value of the real property sold. 42 Pa.C.S. § 8103(a) (emphasis added)

. When e xecution proceedings do not occur until the judgment is final,
i.e. , when appellate review is no longer available , it is immediately apparent whether the sheriff’s sale yielded sufficient funds to satisfy the judgment

. In such instances, as the Majority observes, the six

- month period for initiating DJA proceedings commences when the deed is delivered

. See Majority Opinion at 11 n.10 (citing, inter alia , 42 Pa.C.S. § 5522(b)(2) (providing a six

month statute of limitations for commencing “[a] petition for the establishment of a deficiency judgment following execution and delivery of the sheriff's deed for the property sold in connection with the executionJ

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proceedings referenced in the provisions of section 8103(a) (relating to deficiency judgments) ”)

. However, the trial court here expressly gave Schluth the green light to commence execution proceedi ngs immediately, denied Appellants’ motion to stay pending appeal, and the sale took place before t his Court vacated part of the already

- executed judgment

. The trial court then undertook the findings directed by this Court (and then some), and Appellants filed a new appeal, again postponing the finality of the judgment. Consequently, the underlying judgment did not become final until after our Supreme Court denied Appellant’s request for discretionary review of our decision in the Second Appeal. See Schluth v. Krishavtar, Inc. , 276 A.3d 224 (Pa.Super. 2022) (non

- precedential decision), appeal denied , 285 A.3d 596 (Pa. 2022). This Court observed that § 5522(b)(2)’s six

- month statute of limitations for commencing deficiency proceedings following a sh eriff’s sale and the delivery of the deed is tolled while the parties litigate the finality of the underlying judgment. See Holzapfel v. Mahony , 532 A.2d 469, 472 n.2 (Pa.Super. 1987). This is palpably cogent , for whether a sheriff’s sale price
was insu fficient to satisfy the underlying judgment is inscrutable until the value of that judgment is settled. Thus, Appellant’s August 2021 petitions, filed long before the judgment became final in September 2022 , were plainly premature . T he commencement of the § 5522(b)(2) statute of limitations and the triggeringJ

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event for § 8103(d)

— t he failure of Schluth to file a petition to fix market value within six months of it being established that the sale of the property did not satisfy the final judgment

— had not yet occurred. In other words, Schluth’s failure to initiate DJA proceedings in the Mortgage Foreclosure action within six months of the delivery of the deed was not , as he argues and the Majority properly rejects, excused because the trial court entered a stay order in the Breach of Contract action. See Majority Opinion at 2 2

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. Rather, Schluth’s duty to initiate deficiency judgment proceedings was tolled during the pendency of the First and Second appeals by operation of law.
It seems t o me t hat t he six

- month window for Schluth to file his DJA petition would have closed in April of 2023 had Appellants not filed the ir § 8103(d) petitions and the instant appeal from their denial s . However, by initiating the premature supplementary DJA proceedin gs and appealing the disposition, Appellants extended Schluth’s window of opportunity by triggering Rule 1701(a)’s deprivation of the trial court ’s jurisdiction to adjudicate the parties ’ DJA rights. For t hese reason s , I agree with the Majority that the s ix

month statute of limitations for Schluth to seek a deficiency judgment pursuant to § 8103 does not commence until after these cases are remanded to the trial court. In sum, while I discern no error in the Majority’s analysis and conclusions, I deem i t appropriate to offer the above plainly

- stated basis for joining in the Majority’s disposition.J

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Judge Stabile joins this Concurring Opinion.