J-A11019-22

2023 PA Super 143

WILLIAM SCHLUTH

v.

KRISHAVTAR, INC. AND 

BARKRUSHNA PANCHAL 

Appellants

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 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: 170602871

WILLIAM SCHLUTH

v.

KRISHAVTAR, INC 

Appellant

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 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: 170603382

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY STABILE, J.: FILED JULY 31, 2023

Appellants, Krishavtar, Inc. and Barkrushna Panchal, appeal for the third 

time in these consolidated cases from the September 7, 2021 order entered 

in the Court of Common Pleas of Philadelphia County, denying their petitions 

to mark judgments satisfied as to Krishavtar and Panchal. Following review, 
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we conclude the trial court was without jurisdiction to enter the order and 

therefore we vacate the order.

Our review of the record informs us of the following summary of the 

factual and procedural background of this case. In 2008, Krishavtar, through 

its president Panchal, entered into an agreement of sale with Appellee, William 

Schluth, for the purchase of a Philadelphia property upon which Schluth 

operated a gas station for several years. It was Panchal’s intent to purchase 

the property and to operate the gas station as part of his retirement. The 

purchase price was $695,000, which included an up-front payment of 

$136,000 and an agreement, subsequently modified, to account for 

contamination and necessary remediation, to pay the balance in installments. 

The terms of the payments were set forth in a Note executed by Panchal on 

behalf of Krishavtar. The Note was secured by a Mortgage on the property 

between Krishavtar as Borrower and Schluth as Lender. Panchal also executed 

a personal Guaranty of Mortgage. 

Eventually, Krishavtar defaulted on the Mortgage and Panchal breached 

the terms of the Guaranty by failing to make payments upon Krishavtar’s 

default. Consequently, Schluth filed two actions, one against Krishavtar for 

mortgage foreclosure (“Mortgage Foreclosure Case”—an in rem action 

docketed at No. 3382-June Term 2017), and one against both Appellants for 

breach of contract (“Breach of Contract Case”—an in personam action 

docketed at No. 2871-June Term 2017). On March 13, 2019, following a non-
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jury trial, the trial court entered an order in favor of Schluth in the amount of 

$555,942.96 in the Mortgage Foreclosure Case and directed that the 

prothonotary may issue a writ of execution for the sheriff to proceed to sale 

of the real property. In that same order, the court entered an in personam

judgment in the amount of $555,942.96 in favor of Schluth and against

Panchal in the Breach of Contract Case, representing Panchal’s personal 

liability.1 On April 2, 2019, Schluth filed a Writ of Execution in the amount of 

$555,942.96 in the Mortgage Foreclosure Case. On June 6, 2019, judgments 

in that amount were entered against Appellants in both cases.

After the denial of post-trial motions, Appellants filed their First Appeal

in both cases to this Court on June 6, 2019, that we subsequently consolidated

(“First Appeal”). In their First Appeal, Appellants maintained that the court 

erred by failing to excuse performance based upon Schluth’s material breach, 

that the court erred by failing to allow for rescission of the contract, and that 

the court erred in calculating damages because it failed to consider the parties’

modification of the payment terms.

In connection with the First Appeal, Appellants also filed an emergency 

petition on June 24, 2019, under both docket numbers seeking a stay of the

____________________________________________

1 The Guaranty of Mortgage dated April 9, 2009 (attached to Schluth’s 

Amended Complaint as Exhibit E in the Breach of Contract Case) authorized, 

inter alia, Schluth to join Panchal in any action against Krishavtar as 

Mortgagor, or to recover against Panchal in any independent action in the 

event a default occurred under the Mortgage.
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sheriff’s sale of the property. By order entered on July 3, 2019, the trial court 

denied the petition.2 Appellants then filed a motion for reconsideration of the 

stay denial on July 22, 2019. While the motion for reconsideration was 

pending, the property sold at sheriff’s sale on August 6, 2019, to JSW 

Holdings, LLC (“JSW Holdings”), a limited liability company owned by Schluth

for $420,000, as reflected on the Mortgage Foreclosure Case docket.3 Two

days later, on August 8, 2019, the trial court granted Appellant’s 

reconsideration motion and ordered all execution proceedings stayed. The 

order, however, was entered only under the docket for the Breach of Contract 

Case.4 

On June 30, 2020, this Court in the First Appeal affirmed in part and 

reversed in part the trial court’s March 13, 2019 orders. We vacated the trial 

court’s damages award and remanded the case with direction to the trial court 

to (1) determine whether the payment terms of the agreement of sale had 

____________________________________________

2 We note with frustration that while the Mortgage Foreclosure Case and 

Breach of Contract Case were not consolidated in the trial court, the dockets 

reflect that several documents—including the emergency petition and the trial 

court’s denial of the petition, were filed with both captions on a single 

document filed only in the Breach of Contract Case. 

3

In anticipation of the sale, on the previous day, Schluth assigned the 

Mortgage on the property to JSW Holdings. 

4 We note that the sheriff’s sale is reflected only on the docket of the Mortgage 

Foreclosure Case while the order staying execution appears only on the docket 

of the Breach of Contract Case and bears the caption of that case only. See 

Order, 8/12/19, at 1; Reproduced Record at 161a. 
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been modified by the conduct of the parties and (2) enter an amount of 

damages consistent with those findings. See Schluth v. Krishavtar, Inc. 

and Panchal, Nos. 2013 and 2014 EDA 2019, unpublished memorandum (Pa. 

Super. filed June 30, 2020), appeal denied, 242 A.3d 1249 (Pa. 2020). 

Pursuant to our remand order, on March 8, 2021, the trial court issued 

findings of fact and conclusions of law. While the court found that there was 

an offer to modify the payment amounts, it found there was no agreement 

between the parties to modify the Note and/or Mortgage. The court calculated 

that Schluth was entitled to damages in the amount of $612,878.93 on his 

claims for breach of the Note. Findings of Fact and Conclusions of Law, 3/8/21

at 4, ¶3. The court also found that the property was sold at sheriff sale on 

August 6, 2019 for $420,000 to an entity owned by Schluth and, thereafter,

resold on September 25, 2020 for $600,000.

5 Id. at 4 ¶4. The court then 

recalculated damages in favor of Schluth by subtracting from its award of 

$612,878.93 the net sum of $509,090.92, representing the net proceeds from 

the sale as determined by deducting costs incurred for the sheriff’s sale and 

closing costs, and then adding interest. After making these adjustments, the 

court determined that the amount then owing by the defendants to Schluth 

was $92,616.09. Id. On April 3, 2021, judgment was entered on both dockets 

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5 While the amount of $600,000 is not expressly referenced in the court's 

findings, it is found elsewhere in the record and, in any event, the court's net 

calculation of damages was dependent upon using this number.
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in the amount of $92,616.09. Appellants then filed their second appeal

(“Second Appeal”) on April 6, 2021. In their Second Appeal, Appellants 

challenged the trial court’s findings that there was no contract modification 

based upon the parties’ conduct, and that it erred in calculating damages when 

they claimed they presented sufficient proof they did not owe any money due 

to Schluth’s putative breach of contract. On March 9, 2022, we affirmed the 

trial court’s March 8, 2021 orders that were entered as judgments on April 3, 

2021. See Schluth v. Krishavtar, Inc. and Panchal, Nos. 745 and 746 

EDA 2021, unpublished memorandum (Pa. Super. filed March 9, 2022).6

Meanwhile, on August 9, 2021, after we vacated Schluth’s damage 

award under the First Appeal, and while the March 8, 2021, orders in the 

Second Appeal were still pending before this Court, Appellants filed identical 

petitions in the trial court to mark the June 6, 2019 judgments satisfied in 

both the Mortgage Foreclosure and Breach of Contract Cases. Petitions to 

Mark Judgment Satisfied, 8/9/21, at ¶¶ 3, 9. In each petition, Appellants 

represented that on August 5, 2019, the mortgage on the property was 

assigned by Schluth to JSW Holdings. Id. at ¶ 4. Each petition further 

reflected the August 6, 2019 sheriff’s sale to JSW Holdings for $420,000, and 

JSW Holdings’ subsequent sale of the property for $600,000 to Posh Real 

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6 On May 19, 2022, we denied Appellants’ application for 

reconsideration/argument en banc. On September 27, 2022, our Supreme 

Court denied the petitions for allowance of appeal. 
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Estate Management, LLC, on September 25, 2020. Id. at ¶¶ 5, 7. Appellants 

represented that Schluth failed to file a petition to fix the fair value of the 

property within six months of the sale to judgment creditor JSW Holdings as 

required by 42 Pa.C.S.A. § 8103(d) and, therefore, Appellants were entitled 

to have the judgments marked satisfied.7

By order entered September 7, 2021, the subject of this Third Appeal, 

the trial court denied Appellants’ petitions to mark the judgments satisfied, 

explaining that a deficiency judgment in the amount of $92,616.09 was 

properly entered on April 3, 2021 against Krishavtar, Inc. as borrower and 

against Panchal as guarantor. Therefore, Appellants’ petitions lacked merit. 

Order, 9/7/21, at 1 n.1. This timely Third Appeal followed. The trial court did 

not order the filing of a statement of errors pursuant to Pa.R.A.P. 1925(b),

but did file an opinion on October 27, 2021, indicating that the reasons for 

denying Appellants’ petitions were set forth in the September 7, 2021 order.8 

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7 For ease of discussion and to minimize confusion, we shall henceforth refer 

to JSW Holdings by the name of its owner, Schluth. 

8

In a footnote to the September 7, 2021 order, the trial court explained its 

denial of the petitions, stating:

Following a remand and further briefing by the parties, this court, 

on March 8, 2021, issued findings of fact and conclusions of law 

which set a deficiency judgment of $92,616.09. The deficiency 

judgment was entered on April 3, 2021 and both [Appellants] filed 

timely notices of appeal. The deficiency judgment was properly 

entered against the borrower (Krishavtar, Inc.) and the guarantor 

(Panchal). Therefore, [Appellants’ petitions] are without merit.

(Footnote Continued Next Page)
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Appellants ask us to consider one issue on appeal, which we repeat here 

verbatim:

Whether the trial court erred in denying Appellants, Krishavtar, 

Inc. and Barkrushna Panchal’s Petition to Mark the Judgment 

Satisfied where appellee purchased the Appellants’ real estate at 

a sheriff’s sale and then failed to proceed within six months of the 

sale to petition the court to fix the fair market value of the real 

estate pursuant to 42 Pa.C.S.A. § 8013 and the judgment against 

Appellants’ deemed to be fully satisfied as a matter of law, thus 

entitling Appellants’ to have the judgment marked satisfied of 

record, especially that the judgment was already been vacated by 

the Superior Court on Appeal?

Appellants’ Brief at 4.

When reviewing deficiency judgment proceedings, 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. Bryn Mawr Trust Co. v. Healy, 667 A. 2d 719 (Pa. Super. 1995), citing 

cases.

Relevant to our discussion are the following provisions of the Deficiency 

Judgment Act (“DJA”):

(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 

____________________________________________

Order, 9/7/21, at 1 n.1. 
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supplementary proceeding in the matter in which the judgment 

was entered. 

. . . 

(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 . . . 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). (Emphasis added).

As indicated, the DJA directs that if the price for which a property has 

been sold is not sufficient to satisfy the judgment, a petition to fix the fair 

market value of the property must be filed within six months of the property 

sale in order to determine the balance due a judgment creditor, or in other 

words, a “deficiency judgment.” The petition is to be filed “in the matter in 

which the judgment was entered.” 42 Pa.C.S.A. § 8103(d). In Home Sav.

and Loan Co. of Youngstown, Ohio v. Irongate Ventures, LLC, 19 A.3d

1074 (Pa. Super. 2011), this Court determined that the plain language of the

DJA “requires petitions to fix fair market value to be filed in the dockets of the

Foreclosure Actions.” Id. at 1079. Here, Appellants filed petitions in both the

Mortgage Foreclosure and the Breach of Contract Cases to have the judgments
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marked as satisfied due to Schluth’s failure to petition the court to fix the fair

market value of the real estate within six months of the sheriff’s sale, as

required under the DJA.9

As this Court recognized in Irongate Ventures,

“The objective of the [DJA] 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, 697 A.2d 577, 582 (Pa. 1997).

If the judgment creditor fails to file a § 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. 42 Pa.C.S.A. § 8103(d); First Nat. Consumer Discount

Co. v. Fetherman, 527 A.2d 100, 105 (Pa. 1987).

Id., 19 A.3d at 1078 (cleaned up). Further, 

[u]nder the Pennsylvania [DJA] a mortgagee who purchases 

the mortgaged property in execution proceedings cannot 

recover a deficiency judgment unless and until the 

mortgagee obtains a court determination of the fair market 

value of the mortgaged property and credits that amount 

to the unsatisfied liability. When, as eventuated in this case, 

the mortgagee fails to bring a proceeding for this purpose within 

six months after the foreclosure sale, the debtor and guarantor 

are permanently discharged.

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9 Under Irongate Ventures, the petition filed in the Breach of Contract action 

was improper under the DJA. If filed and granted in the foreclosure action, 

the order would release any other debtor, obligor, guarantor, or any other 

person liable directly or indirectly to the judgment creditor for payment of the 

debt. 42 Pa.C.S.A. § 8103(d).
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U.S. v. Shimer, 367 U.S. 374, 377, 81 S.Ct. 1554, 1557 (1961) (footnote 

omitted). 

Appellants argue that they were entitled to satisfaction of the June 6, 

2019 judgments entered against Krishavtar, Inc. and Panchal because 

Schluth, who purchased the property at sheriff’s sale, did not petition the court 

for a deficiency judgment within six months of the sale as required under 

Section 8103(d).

10

 Schluth purchased the property on August 6, 2019, and 

subsequently resold the property in September 2020, three months after this 

Court decided Appellants’ First Appeal and vacated the original judgment and 

remanded for, inter alia, a determination of damages. 

Schluth does not argue that he complied with the DJA. Rather, he 

highlights the fact that the trial court issued an order on August 8, 2019,

entered on August 12, 2019, staying all further execution proceedings, thus 

relieving him of any obligation to petition for a deficiency judgment for the 

duration of the stay. Schluth further argues that the trial court in any event 

fixed the deficiency judgment upon remand after the First Appeal, thus making 

Appellants’ petitions to have the judgments marked satisfied meritless. 

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10 We note that the six-month period runs from the date of delivery of the 

deed. See Conestoga Bank v. Tioga Investments II, LLC, 138 A.3d 652, 

656 (Pa. Super. 2016); 42 Pa.C.S.A. § 5522(b)(2). Here, the deed dated 

September 3, 2019 was recorded on September 16, 2019. Although we do 

not know the precise date of the delivery of the deed, using the date the deed 

was recorded, we can safely conclude that the latest date by which JSW 

Holdings ordinarily was required to petition to fix the fair market price under 

Section 8103 was six months from the date the deed was recorded. 
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Before we can address the merits of Appellants’ issue on appeal, we find 

we first are obliged to determine whether Appellants’ pending appeals

challenging the judgments in the Mortgage Foreclosure and Breach of Contract

actions deprived the trial court of jurisdiction to entertain the petitions. While 

the parties to this appeal have not raised this issue of jurisdiction, we may do 

so sua sponte, as jurisdiction may be raised at any time, even for the first 

time on appeal. See Bisher v. Lehigh Valley Health Network, Inc., 265 

A.3d 383, 399 (Pa. 2021) (even if the trial court failed to address issues, the 

Superior Court has the “power, if not duty, to raise jurisdictional issues sua 

sponte”).

Once an appeal is taken, a trial court may no longer proceed further in 

the matter. Rule 1701(a) of the Rules of Appellate Procedure divests a trial 

court of jurisdiction to proceed in a matter once an appeal has been 

filed. Commonwealth v. McClure, 172 A.3d 668, 685 (Pa. Super. 2017). 

Rule 1701(a) reflects the fact that once an appeal is filed, jurisdiction over a 

matter is transferred to the appellate court, and the trial court therefore no 

longer has power to act in the matter. Id., (citing Jackson v. Hendrick, 746 

A.2d 574, 575 (2000)). Rule 1701(c), however, contains an exception 

permitting a court to proceed with the remaining matters before it when the 

appeal pertains to a collateral issue in the case, but only if that collateral issue 

is unrelated to and not intertwined with the matters on which the trial court 

intends to proceed. Id. The extent to which a trial court may proceed under 
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Rule 1701(c) depends on whether the orders on appeal were relevant to or at 

issue in the proceedings continuing in the trial court. McClure, 172 A.3d at 

699 (citing R.W.E. v. A.B.K., 961 A.2d 161, 170 n.7 (Pa. Super. 2008)). To 

the extent the matters remaining in the trial court are not dependent on 

resolution of the issue on appeal, the trial court may continue to address them. 

Id. But when the remaining proceedings in the trial court are "tightly 

intertwined" with the collateral matter that is on appeal, the trial court may 

not take any action on those intertwined matters until the appeal is 

concluded. Id. 

Here, at the time Appellants filed their Section 8103(d) petitions with 

the trial court, their Second Appeal was pending in our Court. In that appeal

Appellants challenged the trial court’s findings that there was no contract 

modification based upon the parties’ conduct and that the court erred in 

calculating damages when they claimed they presented sufficient proof they 

did not owe any money for a putative breach of contract by Schluth. These 

issues questioned directly both the liability for, and the amount of, the 

judgment Schluth was awarded in the foreclosure action. With liability and 

damages at issue on appeal, it would not have been possible for Schluth to 

seek a deficiency judgment and for the court to assess a deficiency judgment 

because doing so would require first that liability be established and then that 

the amount of the judgment be established. This is so because “[a] mortgagee 

who purchases the mortgaged property in execution proceedings cannot 
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recover a deficiency judgment unless and until the mortgagee obtains a court 

determination of the fair market value of the mortgaged property and credits 

that amount to the unsatisfied liability.” Shimer, supra. A court cannot 

proceed to determine a deficiency while liability and damages are the subject 

of a pending appeal. If a judgment’s validity is questionable, then the validity 

of all subsequent collection proceedings dependent on that judgment may be 

subject to attack as well. Therefore, Schluth could not have petitioned the 

trial court to assess a deficiency judgment under Section 8103(a) while the 

foreclosure judgment was the subject of Appellants’ Second Appeal as the trial

court would have been without jurisdiction to consider any such petition. The 

Second Appeal also could not be considered collateral to the foreclosure 

judgment because the appeal directly questioned whether Appellants owed 

Schluth any money at all. Therefore, the trial court was without jurisdiction to 

consider Appellants’ Section 8103(d) petitions.

Rule 1701(a) likewise would have prevented the trial court from

considering a deficiency judgment petition by Schluth during the pendency of 

Appellants’ First Appeal, filed immediately after the judgment in mortgage 

foreclosure, for the same reason the trial court could not entertain a deficiency 

judgment petition while the Second Appeal was pending. Like their Second 

Appeal, Appellants’ First Appeal challenged liability based upon Appellant’s 

claim that Schluth committed a material breach, that the court erred by failing 

to allow for rescission of the contract, and that the court erred in calculating 
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damages. These issues raised the same jurisdictional impediments to seeking 

a deficiency judgment as those pertaining to the Second Appeal. It also is 

important to acknowledge that this Court’s resolution of the First Appeal 

resulted in our vacating the damage awards in both cases. With the damage 

awards vacated, there was no basis on remand to seek a deficiency judgment 

unless and until damages once again were determined and awarded. When 

the trial court did so upon remand, Appellants filed their Second Appeal that

again deprived the trial court of jurisdiction to consider a deficiency judgment 

petition. Since the time the property was sold at sheriff’s sale there existed 

no time when the trial court possessed continuing jurisdiction to entertain a 

deficiency judgment petition by Schluth due to the pendency of Appellants’ 

various appeals, including the present one. We therefore find we must vacate 

the trial court’s denial of Appellants’ petitions to mark the June 6, 2019 

judgments as satisfied, released, and discharged under Section 8103(d), due 

to a lack of jurisdiction in the trial court to act while there were pending 

appeals in this Court.

While we have found little precedent to guide us on the issue of trial 

court jurisdiction while an appeal is pending within the context of the DJA, the 

cases of Leasing Service Corporation v. Benson, 464 A.2d 402 (Pa. Super. 

1983) and First Seneca Bank v. Greenville Distributing Company, 533 

A.2d 157 (Pa. Super. 1987), are both instructive and persuasive.
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In Leasing Service, the appellant, John W. Benson (“Benson”), filed a 

petition to strike and/or open a judgment by confession entered against him 

by the appellee, Leasing Service Corporation (LSC), based upon a default 

under a lease agreement for mining equipment to Appalachian Pocahontas 

Coal Co., Inc. (“Appalachian”) that Benson unconditionally guaranteed. The 

lower court denied the petition and Benson appealed at docket No. 592 

Philadelphia, 1980. 

LSC proceeded with the sale of the formerly leased equipment and was 

the sole bidder and purchased all of the repossessed equipment for $79,000. 

It then filed a claim against Appalachian for the deficiency resulting from the 

sale of the equipment. The court hearing the matter determined that LSC was 

barred from recovering any deficiency from Appalachian because LSC did not 

act in a commercially unreasonable manner in the sale and disposition of the 

equipment, thus leaving Appalachian free of any further indebtedness to LSC. 

Based upon the release of Appalachian, Benson argued that as a guarantor he 

too was released and demanded that LSC mark the judgment against him 

satisfied pursuant to 42 Pa.C.S.A. § 8104. In response, LSC filed a petition 

to have Benson’s satisfaction demand declared a nullity. The court granted 

LSC's petition and denied counter-petitions by Benson. Benson then filed a 

second appeal to the Superior Court at No. 1041 Philadelphia, 1982.

In resolving Benson’s Section 8104 appeal at No. 1041, Philadelphia, 

1982, we affirmed the lower court’s decision to have the satisfaction demand 
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by Benson declared a nullity, but not on the grounds relied upon by the lower 

court. At the time Benson made his June 30, 1981 demand under Section 

8104 to release his guaranty based upon LSC being barred from recovering 

any deficiency against Appalachian, our Court already had jurisdiction of his 

appeal at No. 592 Philadelphia, 1980 that, inter alia, challenged both the 

very validity of the judgment and the amount owed in that confession of 

judgment action. We stated that the appeal was a full-force attack on all 

meaningful aspects of the judgment which Benson was at the same time then 

attempting to have marked satisfied under Section 8104 in his appeal at No. 

1041 Philadelphia, 1982. We held that the court was correct to have the 

satisfaction demand declared a nullity, but not by evaluating the merits of the

dispute. Instead, the court should have acted upon procedural grounds 

mandated by Rule 1701 of the Rules of Appellate Procedure. By addressing 

the merits, the lower court improperly delved into the merits of an issue that 

directly affected a matter then on appeal before our Court. 

First Seneca Bank is instructive as it demonstrates both when a trial 

court may act while an appeal is pending and when it may not. In First 

Seneca Bank, Greenville Distributing Company (“Greenville”) executed and 

delivered to the appellant, First Seneca Bank, a mortgage of $140,000. The 

mortgage was executed on behalf of Greenville by its president, Robert M. 

Woods. Separately, other individuals, together with Woods (collectively 

appellees), executed a note for $140,000 that contained a confession of 
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judgment clause. The bank subsequently confessed judgment on the note as 

against the individuals. When Greenville stopped making payments on the 

note, the bank filed a two-count complaint. The first count was in mortgage 

foreclosure against Greenville only. The second was in assumpsit against the 

bank and the individuals on the note. The court severed the count in mortgage 

foreclosure from the count in assumpsit and entered a default judgment 

against Greenville in the mortgage foreclosure action for $93,016.42 plus 

interest. The property was then sold at sheriff sale to the bank for $60,000. 

On that same day, the bank filed in the mortgage foreclosure action a petition 

to fix a deficiency judgment against Greenville and the individual appellees. 

By order dated March 27, 1985, the court gave Greenville credit against the 

judgment in the mortgage foreclosure action and found the deficiency in that 

action to be $35,474.16. 

The bank appealed (the first appeal) claiming it was entitled to a 

deficiency judgment of $70,474.16. The appellees then petitioned in the lower 

court to strike the deficiency judgment.

11 The court agreed and by order dated 

June 11, 1985, it struck the deficiency judgment as well as the bank’s petition

to fix a deficiency. In that same order, the court also dismissed the count in 

assumpsit to collect on the note and marked the confessed judgments against 

the individual appellees satisfied, discharged, and released. The bank filed a 

____________________________________________

11 This was the second time appellees petitioned to strike the deficiency 

judgment.
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second appeal raising, inter alia, whether the trial court lacked jurisdiction to 

enter the June 11, 1985 order that struck the deficiency judgment because an 

appeal had been filed from the prior order of March 27, 1985,that set a 

deficiency at $35,474.16. Because both appeals involved the same parties 

and the same mortgage foreclosure proceedings, we consolidated them for 

disposition on appeal.

In addressing the bank’s first appeal relating to the amount of the 

deficiency judgment, we raised sua sponte whether the court had subject 

matter jurisdiction to consider the deficiency judgment petition in the 

mortgage foreclosure action in light of Meco Realty Company v. Burns, 200 

A.2d 869 (Pa. 1964). We held it did not because at that time a deficiency 

judgment could not be sought in a mortgage foreclosure action, an in rem

proceeding.12 Id. The court lacked jurisdiction to consider the deficiency 

judgment petition in the in rem mortgage foreclosure action and the deficiency 

judgment consequently was void and had to be vacated. 

____________________________________________

12 Under that prior regime, lenders often found themselves in somewhat of a 

catch-22 whereby they could not obtain a deficiency judgment without first 

obtaining a personal judgment. Procedural delays in obtaining a personal 

judgment could push a lender well past six months after foreclosure for filing 

a petition for a deficiency judgment. See Harris Ominsky, The Lender's 

Gauntlet Revisited, 30 Vill. L. Rev. 1130, 1133 n.14 (1985), 

https://digitalcommons.law.villanova.edu/vlr/vol30/iss5/3. As a result of 

1978, 1998, and 2004 amendments to the DJA, these obstacles to obtaining 

a deficiency judgment have been removed so that now petitions to fix fair 

market value are to be filed as supplemental proceedings to mortgage 

foreclosure actions. Irongate Ventures, supra.
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In the bank’s second appeal challenging whether the lower court could 

act while the bank’s first appeal was pending, we agreed, consistent with our 

conclusion in the first appeal, that the March 27, 1985 order that purported to 

enter a deficiency judgment in the mortgage foreclosure action was void. We 

concluded, however, that to the extent the order and judgment attempted to 

strike off the deficiency judgment in the mortgage foreclosure action while the 

first appeal was pending, the court was without jurisdiction to proceed and 

that portion of the order and judgment had to be vacated. We went on to 

conclude however, that the June 11, 1985 order and judgment did not have 

to be vacated in its entirety because that order also related to the petition to 

have the confessed judgments marked satisfied in the assumpsit action. We 

stated that the prohibition against further proceedings in the trial court under 

Pa.R.A.P. 1701(a) is limited only to those items, claims, or assessments 

involved in an appeal as provided for under Pa.R.A.P. 1701(c).13 Because the 

March 27, 1985 judgment on appeal did not relate to the confession of 

judgment action, but only to the deficiency in the mortgage foreclosure action, 

the court had jurisdiction to consider the petition to have the confessed 

judgment marked satisfied in the assumpsit action. As well, the court had 

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13 Pa.R.A.P. 1701(c) provides in part that “[w]here only a particular item, 

claim, or assessment adjudged in the matter is involved in an appeal . . . the 

appeal . . . shall operate to prevent the trial court . . . from proceeding further 

with only such item, claim, or assessment, unless otherwise ordered by the 

trial court or . . . the appellate court or a judge thereof as necessary to 

preserve the rights of the appellant.”
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jurisdiction to consider the petition to dismiss the complaint in assumpsit 

because the petition did not relate to the mortgage foreclosure action that was 

on appeal, but to a separate cause of action that had been severed from the 

cause of action to which the March 27, 1985 order related. Therefore, we 

vacated the judgment entered in the mortgage foreclosure proceedings that 

had been entered after the first appeal had been taken, as well as that portion 

of the June 11, 1985 order that related to those proceedings, but affirmed the 

June 11 order to the extent it directed the confessed judgments to be marked 

satisfied, discharged, and released, and the complaint in assumpsit dismissed. 

The holdings in Leasing Service and First Seneca Bank assist in the 

present appeal because they confirm that while an appeal is pending, a trial 

court is without jurisdiction to proceed further with respect to any claims, 

items, or assessments involved in a pending appeal. The extent to which a 

lower court may proceed during a pending appeal depends upon whether the 

issues on appeal are relevant to or at issue before the lower court. McClure, 

supra. Where the remaining proceedings in a lower court are “tightly 

intertwined” with the matter on appeal, the lower court may not take any 

action on those intertwined matters until the appeal is concluded. Id. Here, 

as previously stated, Appellants’ Section 8103(d) petitions to have Schluth’s 

foreclosure judgment marked as satisfied, discharged, and released could not 

be acted upon while Appellants’ appeals were pending before our Court. At 

the time Appellants’ petitions were filed, Appellants had appeals pending 
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challenging liability for the judgment, and even if affirmed to be liable, 

whether the amount awarded was proper. In fact, it was Appellants’ position 

that they did not owe Schluth any money. Schluth could not petition the trial 

court for a deficiency judgment while the appeals were pending because a 

court's ability to fix a deficiency judgment once the fair market value of a

property is ascertained, can only be measured against the amount of a valid 

judgment to arrive at the balance due, which then would constitute the 

deficiency judgment. Appellants’ appeals challenging the foreclosure 

judgment precluded the trial court from considering deficiency judgment 

proceedings.

In his brief, Schluth argues almost exclusively that the court’s August 

8, 2019 order, entered on August 12, 2019, staying all further execution 

proceedings, relieved him of any obligation to petition for a deficiency 

judgment for the duration of the stay. This argument misses the mark. The 

stay order was entered only in the Breach of Contract Case.14 A deficiency 

judgment now must be sought as a supplemental proceeding in the matter

that produced the foreclosure judgment. See Section 8103(a). Therefore, a 

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14 The record provides no explanation as to why the trial court’s stay of 

execution proceedings upon reconsideration was entered only in the Breach 

of Contract Case when the petition for reconsideration was filed to both 

actions. It is known, however, that the property was sold shortly before the 

stay order was entered.
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stay in the Breach of Contract Case may not necessarily stay proceedings in 

the Foreclosure Case.

Schluth also argues that Appellants’ claim is meritless because the trial 

court on remand assessed a deficiency judgment. We disagree. Our decision 

of June 30, 2020 in the First Appeal remanded the matter to the trial court to 

make factual findings whether there was a modification of the payment terms

under the Note and Mortgage and then to enter an amount of damages 

consistent with those findings. At the time the First Appeal was filed, the 

property had been sold at sheriff’s sale to Schluth but had not yet been sold 

in a private sale for $600,000.15 On remand, the court found that there had 

been no modification of the payment terms and then proceeded to determine 

damages. In doing so, the trial court arrived at a net damage award to Schluth 

by reducing the damage award by the net sum received from the sheriff’s sale 

and the subsequent private sale, and then by adjusting the interest due. The 

court arrived at a revised damage award of $92,616.09 which was entered as 

a judgment on March 8, 2021. In its findings of fact and conclusions of law 

supporting this net damage award to Schluth, the trial court did not refer to 

the net award as a “deficiency judgment.” Rather, the award first was referred 

to as a “deficiency judgment” in the trial court’s September 7, 2021 order 

denying Appellants’ petitions to mark the judgments satisfied wherein it stated 

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15 Consequently, our remand order to redetermine damages could not have 

contemplated the private sale amount as a part of the remand order.
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that following remand, the court, on March 8, 2021, issued findings of fact 

and conclusions of law which set a “deficiency judgment” of $92,616.09. See 

n.8. Appellants apparently accepted this characterization as they too in 

connection with their application for a stay of execution proceedings ancillary 

to their Second Appeal to this Court, referred to the $92,616.09 judgment as 

a “deficiency judgment.” See Application of Appellants, Krishavtar, Inc. and 

Barkrushna Panchal, for Stay of Execution Proceedings, 8/6/21, at ¶¶ 7, 11, 

18 and 23. Regardless, referring to this damage award as a “deficiency 

judgment” does not make it so.

Under Section 8103(a) of the DJA, whenever real property is sold to a 

judgment creditor and the price is not sufficient to satisfy the amount of the 

judgment, in order to collect the balance due, the judgment creditor must file 

a petition with the court to fix the fair market value of the real property sold. 

The determination of fair market value is central to the court fixing the amount 

of a deficiency judgment and the amount that all debtors are entitled to be 

credited against the balance due on a judgment. See generally, 42 Pa.C.S.A. 

§ 8103(c). Where the fair market value of the property is in dispute, the court 

is obligated to hear evidence to determine and fix the fair market value of the 

property sold. Id. Here, no petition was filed to initiate the deficiency 

judgment process under the DJA. Nor was the trial court presented with any 

evidence as to the fair market value of the property sold. The amount of 

$600,000 that was used by the court to come to a net damage award may or 
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may not have reflected the fair market value of the property. While it is

possible the parties could have agreed to this value as fair market value or 

that this amount ultimately could have been determined as fair market value, 

the amount was not subject to any fair market value evaluation. Without a 

petition alleging this amount as fair market value and the court accepting it

as fair market value, or determining otherwise by hearing disputed evidence,

the trial court’s net damage award determined upon remand cannot be 

considered a deficiency judgment as that is contemplated under the DJA. The 

DJA sets forth specific procedures for the filing and consideration of fixing the 

fair market value of a property after a foreclosure sale in order to arrive at a 

deficiency judgment. The trial court’s shortcut to this end, without an 

appropriate petition before the court, in calculating a net damage award upon 

remand did not meet the requirements of the DJA and therefore, its net award 

could not be considered a deficiency judgment.

We have not been asked to consider the amount of a deficiency 

judgment in this appeal, as this appeal is limited to whether the trial court 

erred in denying Appellants’ Section 8103(d) petitions. Our decision today 

does no more than to conclude that the trial court did not possess jurisdiction 

to consider the Section 8103(d) petitions. When the trial court again is vested 

with jurisdiction over these cases, Schluth, if he so chooses, may seek a 

deficiency judgment within six months of jurisdiction being returned to the 

trial court. The return of these cases to the trial court when it again regains
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jurisdiction may be the first time in these lengthy proceedings 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 judgment.16

Order vacated and case remanded to the trial court. Jurisdiction 

relinquished.

Judge Bowes files a concurring opinion in which Judge Stabile joins.

Judge McLaughlin files a concurring opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/2023

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16 We offer no opinion at this time as to the effect of the trial court’s prior net 

award of damages to Schluth in the amount of $92,616.09, as that may bear 

upon any deficiency judgment proceeding. Our June 30, 2020, remand order

merely directed the trial court to determine whether the parties modified the 

payment terms of their agreements and to enter an amount of damages 

consistent with those findings. We in no way intended or instructed that 

revisiting the amount of damages should include deficiency judgment 

proceedings. We also note that none of the parties in the Second Appeal 

raised any issue that the net damage award found by the trial court did not 

qualify as a deficiency judgment.