J-A02038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

THE CADLE COMPANY, AS ASSIGNEE 

OF SDO FUND II D32, LLC

v.

417 LACKAWANNA AVENUE, LLC 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 850 MDA 2023

Appeal from the Judgment Entered June 9, 2023

In the Court of Common Pleas of Lackawanna County 

Civil Division at No(s): 2017-02246

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 7, 2024

417 Lackawanna Avenue, LLC (“417 Lackawanna”) appeals from the 

judgment entered in favor of The Cadle Company, as assignee of SDO Fund II 

D32, LLC (“Cadle”), following a trial to fix the fair market value of a property. 

We affirm.

The facts and procedural history of this appeal involve 417 

Lackawanna’s default on a mortgage and foreclosure proceedings on a

commercial property in Scranton (“the subject property”).

1

 Cadle eventually 

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1 According to the pleadings, PNC Bank issued the original mortgage on the 

subject property. PNC Bank assigned the mortgage to SDO Fund II D32, LLC, 

who initiated a foreclosure action, obtained the judgment in foreclosure, and 

filed the underlying petition to fix fair market value. SDO Fund II D32, LLC 

thereafter assigned the judgment to Cadle before the trial in this matter. 417 

Lackawanna has not challenged the chain of these assignments, and, for ease 

of reference, we refer to “Cadle” hereinafter as including its predecessors-ininterest.
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obtained a judgment against 417 Lackawanna for $5.3 million, and the subject 

property sold at a sheriff’s sale for $175,000 in 2018. 

In 2019, Cadle filed the instant petition, pursuant to the Deficiency 

Judgment Act,2to fix the fair market value of the subject property at $3.05 

million, and 417 Lackawanna answered. At the non-jury trial, Cadle presented 

an expert witness, Robert Kaltman (“Mr. Kaltman”), who opined that the fair 

market value of the property at the time of the sheriff sale was $3.05 million. 

See N.T., 11/30/22, at 11. 417 Lackawanna cross-examined Mr. Kaltman and 

challenged his comparisons of the sales prices of comparable sites

(“comparables”) to the subject property. See id. at 21-24. 417 Lackawanna 

criticized Mr. Kaltman’s failure to consider the sale price of a building in 

Scranton (“the Mount Pleasant site”), confronted him with evidence that the 

Mount Pleasant site had sold for over $6 million in 2018, and elicited testimony 

that he believed, but was not certain, that the Mount Pleasant site had medical 

purposes, which would have increased its sales price. See id. at 26-27, 31, 

44-45. 417 Lackawanna also highlighted that the county tax assessment of 

subject property was over $5 million, which Mr. Kaltman explained was an 

over-assessment. See id. at 31-32, 43. 

In its case-in-chief, 417 Lackawanna presented testimony from one of 

its founding members, Gerald Donahue (“Mr. Donahue”), that he purchased 

the property in 2008 for $5.5 million. See id. at 48. Mr. Donahue also 

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2 See 42 Pa.C.S.A. § 8103.
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asserted that the subject property had more rentable space than Mr. Kaltman

used in his appraisal. See id. at 47. 417 Lackawanna did not present an 

expert witness, but it argued that the fair market value of the subject property 

was far greater than Mr. Kaltman’s appraisal. See id. at 57.

The trial court concluded the hearing and permitted the parties to file 

post-hearing briefs. See id. at 60. 417 Lackawanna filed proposed findings 

of fact and conclusions of law asserting that Cadle failed to carry its burden of 

establishing the fair value of the subject property because Mr. Kaltman’s 

testimony was not credible. See 417 Lackawanna’s Proposed Findings of Fact 

and Conclusions of Law, 1/13/23, at 5-6 (unpaginated). Cadle filed a posthearing memorandum that attached and referred to evidence not presented 

at trial, specifically, a document indicating that the subject property had sold 

for $2.85 million in 2020 (“Exhibit C”), only $200,000 less than Mr. Kaltman’s 

appraisal of the subject property. See Cadle’s Post-Trial Memorandum, 

1/19/23, at 3 and Exhibit C.3 Cadle asserted that the exhibit confirmed the 

accuracy and reliability of Mr. Kaltman’s expert opinion. See id. at 3-4. 

417 Lackawanna moved to strike the new evidence, but the trial court 

thereafter entered a decision stating that it (1) reopened the record and took

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3 Cadle’s post-hearing memorandum also referred to and attached information 

that the Mount Pleasant site had medical uses (“Exhibit D”). See Cadle’s PostTrial Memorandum, 1/19/23, at 3-4 and Exhibits D. The trial court stated that 

it was not considering Exhibit D. See Non-Jury Decision, 2/14/23, at 6 n.3. 

417 Lackawanna does not directly challenge Cadle’s attachment and reference 

to Exhibit D but asserts that “it [was] questionable whether Mr. Kaltman 

correctly classified the Mount Pleasant site as ‘medical’ . . ..” See 417 

Lackawanna’s Brief at 20-21.
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judicial notice of Exhibit C, and (2) found Exhibit C bolstered the accuracy of 

Mr. Kaltman’s valuation of the subject property See Non-Jury Decision, 

2/14/23, at 8-10. The court adopted Mr. Kaltman’s opinion to fix the fair 

market value of the subject property at $3.05 million. See id. at 10.

417 Lackawanna filed post-trial motions for a new trial, asserting that 

the trial court erred in reopening the record and considering Exhibit C. See

Post-Trial Motions, 2/22/23, at ¶¶ 9-18, 31. The court heard oral arguments 

on the post-trial motions, after which it issued a memorandum and order that

struck those portions of its prior decision discussing Exhibit C but declined to 

hold a new trial. See Order and Memorandum, 5/11/23, at 4-5. The court 

maintained that the fair market value of the subject property was $3.05 

million. See id. at 8. 417 Lackawanna praeciped for the entry of judgment,

and this timely appeal followed. Both 417 Lackawanna and the trial court 

have complied with Pa.R.A.P. 1925. 

417 Lackawanna raises the following issue for review: 

Did the trial court err as a matter of law or abuse its discretion in 

refusing to vacate the verdict of February 14, 2023 and grant a 

new trial or reopen the record, where the trial court misapplied 

the Deficiency Judgment Act and corresponding rules of civil 

procedure, when it improperly reopened the record, sua sponte, 

and considered the post-trial evidence of [Cadle] that improperly 

bolstered the testimony of [Cadle’s] expert witness, each of which 

deprived [417 Lackawanna] of the opportunity to respond and was 

prejudicial . . . ?

417 Lackawanna’s Brief at 4 (italics added).

The following standards govern our review:
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When reviewing an order fixing fair market value, an 

appellate court is limited to determining whether there is sufficient 

evidence to sustain the holding of the trial court, or whether the 

court committed reversible error of law.

The record must be viewed in the light most favorable to the 

verdict winner. Furthermore, it is the role of the trial court to 

weigh the credibility of testimony and evidence concerning 

valuation, including the weight to be given to expert testimony.

Devon Serv., LLC v. S & T Realty, 171 A.3d 287, 291-92 (Pa. Super. 2017)

(internal citations omitted). 

The trial court has authority and discretion to make preliminary 

evidentiary rulings, control the order and mode of presenting evidence, and,

if it deems necessary, reopen the record sua sponte. See Commonwealth

v. Safka, 141 A.3d 1239, 1249 (Pa. 2016); see also Pa.R.E. 104(a); 611(a). 

To constitute reversible error meriting a new trial, the ruling must be

erroneous and prejudicial. See Crespo v. Hughes, 167 A.3d 168, 181 (Pa. 

Super. 2017).

Consideration of all new trial claims is grounded firmly in the 

harmless error doctrine which underlies every decision to grant or 

deny a new trial. A new trial is not warranted merely because 

some irregularity occurred . . . or another trial judge would have 

ruled differently; the moving party must demonstrate to the trial 

court that he or she has suffered prejudice from the mistake.

Id. at 180 (internal citation, quotation marks, and brackets omitted); see 

also Interest of J.M.G., 229 A.3d 571, 580 (Pa. 2020) (noting that an 

appellate court must first consider whether a mistake occurred, and if so, 

determine whether the trial court abused its discretion in ruling on the request 

for a new trial). As this Court has stated:
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[A]n abuse of discretion exists when the trial court has rendered 

a judgment that is manifestly unreasonable, arbitrary, or 

capricious, has failed to apply the law, or was motivated by 

partiality, prejudice, bias, or ill will. A finding by an appellate court 

that it would have reached a different result than the trial court 

does not constitute a finding of an abuse of discretion.

Crespo, 167 A.3d at 181 (internal citation and brackets omitted).

417 Lackawanna claims the trial court erred in reopening the record sua 

sponte and taking judicial notice of Exhibit C. See 417 Lackawanna’s Brief at 

15-17. 417 Lackawanna contends that Exhibit C improperly proved facts and 

bolstered Mr. Kaltman’s valuation of the subject property. See id. at 9. 417 

Lackawanna claims the trial court’s decision to consider the exhibit had a 

“drastic and prejudicial effect” by violating its right to be heard, skewing the 

trial court’s credibility determinations, and rendering it impossible for the court 

to independently assess the proper evidence presented at trial and render and 

unbiased determination of the subject property’s fair market value. Id. at 12. 

417 Lackawanna summarizes its arguments for why the trial court should not 

have credited Kaltman’s valuation including: (1) the geographical, and 

marketplace, differences in his comparables, (2) his failure to consider the 

sale price of the Mount Pleasant site as a comparable, and (3) the accuracy of 

his projected rental rates for the subject property. See id. 18-19. 417 

Lackawanna further asserts that neither Mr. Donahue nor Mr. Kaltman brought 

documentation to support the testimony, but the trial court unfairly held Mr. 

Donahue to a higher standard of credibility by rejecting his testimony as 

unsupported, while crediting Mr. Kaltman’s opinion. See id. at 19. 417 

Lackawanna concludes that trial court could not undo its error when
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considering the exhibit by retrospectively stating that the exhibit did not affect 

its consideration of the properly admitted evidence. See id. at 24-25.

The trial court addressed this issue, conceded its error in reopening the 

record and taking judicial notice of Exhibit C, but concluded that the mistake 

did not warrant a new trial:

[I]n retrospect, consideration of the subsequent sale price 

occurred after the trial record was closed and through judicial 

notice. The receipt of this evidence in this manner did not provide 

a full and fair opportunity for [417 Lackawanna] to be heard. 

Under these circumstances, where the [c]ourt believes that 

evidence of the subsequent sale price should simply have been 

excluded, a modification of [its prior] decision is warranted, but 

not a new trial.

* * * *

The only relevant, credible evidence in this case is the 

appraisal of Mr. Kaltman. 417 Lackawanna failed to discredit Mr. 

Kaltman’s testimony through cross-examination or through the

testimony of Mr. Donahue. The grounds for the non-jury decision 

valuing the fair market value of the property at [$3.05 million]

stand on their own even without reference to the subsequent sale

price. Put another way, if this [c]ourt denied [Cadle’s] request to 

take judicial notice of the subsequent sale price in the first 

instance, this [c]ourt would have still determined the same value

of the property based on the only expert opinion in this case. [417 

Lackawanna] has not sustained the prejudice that would warrant 

a new trial.

Memorandum and Order, 5/11/23, at 4-5. 

Following our review, we conclude that the trial court did not abuse its 

discretion in declining to hold a new trial. As the trial court noted, Cadle 

presented the only expert evidence at trial, and 417 Lackawanna attempted 

to attack the reliability of Mr. Kaltman’s $3.05 million appraisal through crossexamination and fact-testimony by Mr. Donahue. 417 Lackawanna did not 
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present an opposing expert to offer a counter-appraisal or rebut Mr. Kaltman’s 

conclusions or methodology. The trial court, following its decision to reopen 

the record and take judicial notice of Exhibit C, noted its error, set forth the 

appropriate standards for reviewing 417 Lackawanna’s request for a new trial, 

and detailed its findings absent its improper consideration of the evidence. 

See Memorandum and Order, 5/11/23, at 4-5. We discern no basis upon 

which to conclude the court’s decision to deny a new trial was manifestly 

unreasonable or reflected bias. Cf. Crespo, 167 A.3d at 181. Moreover, even 

if the erroneously considered exhibit tended to blunt the force of 417 

Lackawanna’s cross-examination and bolster Mr. Kaltman’s opinion, we 

discern no basis to conclude that the harm was so significant that the trial 

court would not have credited Mr. Kaltman’s expert appraisal as a reasonable 

valuation of the fair market value of the subject property. Thus, no relief is 

due.

Judgment affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 8/07/2024