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2019 PA Super 170

DAVID KELLER 

Appellant

v.

THE BANK OF NEW YORK MELLON, 

TRUSTEE CERT HOLDER CWALT, 

INC., A1 TRUST 2004-27CB

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2628 EDA 2018

Appeal from the Order Entered August 8, 2018

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

2018-00859

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PA PROPERTY PORTFOLIO, INC., 

AND DAVID KELLER 

Appellant

v.

BANK OF AMERICA, N.A., 

SUCCESSOR TO BAC HOME LOAN 

SERVICING, L.P.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2895 EDA 2018

Appeal from the Order Entered August 24, 2018

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

1484-CIVIL-2018

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PA PROPERTY PORTFOLIO, INC. -

DAVID KELLER 

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
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Appellant

v.

WELLS FARGO BANK, N.A., A/K/A 

WELLS FARGO

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 No. 2902 EDA 2018

Appeal from the Order Entered August 29, 2018

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

2539-CIVIL 2018

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NORTHEAST INVESTORS GROUP, 

INC., - DAVID KELLER 

v.

WELLS FARGO BANK, N.A., A/K/A/ 

WELLS FARGO

APPEAL OF: NORTHEAST 

INVESTORS GROUP, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2926 EDA 2018

Appeal from the Order Entered August 28, 2018

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

2515-CV-2018

BEFORE: LAZARUS, J., OTT, J., and DUBOW, J.

OPINION BY LAZARUS, J.: FILED MAY 24, 2019
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Appellants, David Keller, PA Property Portfolio, Inc.,1 and Northeast 

Investors Group, Inc.2 (collectively “Plaintiffs”), appeal from four related

orders,

3 entered in the Court of Common Pleas of Monroe County, granting

opposing parties’ preliminary objections with prejudice and dismissing 

Plaintiffs’ complaints. After careful review, we affirm. 

The facts underpinning all four actions are substantially similar and the 

questions of law are identical. Brief of Appellant,4 at 3 (“this appeal is one of 

four appeals involving the exact same questions of law[] and general 

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1 PA Property Portfolio, Inc. is a corporate entity used by Keller to purchase 

foreclosed properties at sheriffs’ sales. 

2 Northeast Investors Group, Inc. is also a corporate entity used by Keller to 

purchase foreclosed properties at sheriffs’ sales.

3 Pursuant to Pa.R.A.P. 513, we consolidate the appeals from these four orders 

sua sponte, as all four appeals revolve around Keller and assert nearly 

identical legal arguments. See infra, at n.4. 

4 As the four briefs assert identical arguments, we refer to them collectively 

as “Brief of Appellant” and use the pagination from the brief filed under 2895 

EDA 2018 for clarity and brevity. We note with deep disfavor that Anthony 

Roberti, Esquire, appellate counsel on three of Plaintiffs’ four cases, filed briefs 

which copy the bulk of Keller’s pro se brief verbatim. See e.g. Brief of 

Appellant, at 1 (replicating idiosyncratic error from pro se brief stating relevant 

standard of review as “de nova” in each counseled brief). Such reliance on a 

pro se brief for legal analysis implicates Attorney Roberti’s competence and 

diligence under the Pennsylvania Rules of Professional Conduct. See Rule 1.1. 

cmt 5 (discussing thoroughness and preparation required of a competent 

attorney) and Rule 1.3 cmt 1 (directing attorneys to take sufficient measures 

required to pursue client’s interests). 
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background history[.] The four . . . appeals in question are 2902 EDA 2018, 

2895 EDA 2018, 2926 EDA 2018, [and] 2628 EDA 2018.”). Plaintiffs brought 

the instant suits to recover state and local transfer taxes5levied by the Monroe 

County Sheriff (“Sheriff”) after successfully bidding on foreclosed properties 

at Sheriff’s sales.

6 Plaintiffs, however, sought to recover these sums not from 

the Sheriff, but from the respective mortgage holders in each sale—namely, 

the instant Appellees—Bank of New York Mellon, Bank of America, and Wells 

Fargo Bank (collectively “the Banks”). 

In their pleadings, Plaintiffs argued that by being erroneously instructed 

by the Sheriff to pay the transfer tax, Plaintiffs overpaid for each property, 

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5 State and local transfer taxes from a judicial sale of real estate are governed 

by 72 P.S. § 8104-C and 72 P.S. § 8107-D, respectively.

6 The sums at issue, number of properties, and dates of relevant Sheriff’s sales 

at issue in each case are as follows: 2628 EDA 2018 concerns $3,168.34 in 

principle, interest, and fees connected with the transfer tax paid on the 

winning bid for one property at a Sheriff’s sale dated September 25, 2014; 

2895 EDA 2018 concerns $12,946.83 in principle, interest, and fees connected 

with the transfer tax paid on the winning bids for four properties at Sheriff’s 

sales dated June 25, 2015, August 27, 2016, March 31, 2016, and June 30, 

2016; 2902 EDA 2018 concerns $33,758.06 in principle, interest, and fees 

connected with the transfer tax paid on the winning bids for fifteen properties 

at Sheriff’s sales dated June 25, 2015, July 30, 2015, August 27, 2015, 

September 25, 2015, December 3, 2015, January 28, 2016, April 28, 2016, 

May 26, 2016, and June 30, 2016; 2926 EDA 2018 concerns $31,228.87 in 

principle, interest, and fees connected with the transfer tax paid on the 

winning bids for ten properties at Sheriff’s sales dated July 31, 2014, August 

28, 2014, October 30, 2014, and May 28, 2015. 
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creating a resultant windfall for the Banks7in violation of Northwest Savings 

Bank v. Knapp, 149 A.3d 95 (Pa. Super. 2016). In each amended complaint, 

Plaintiffs asserted claims for declaratory judgment, unjust enrichment,8

equitable restitution, conversion, and special relief to pursue a class action 

claim. Amended Complaint, 2628 EDA 2018, 5/9/18, at 5–6; Amended 

Complaint, 2895 EDA 2018, 5/9/18, at 4–5; Amended Complaint, 2902 EDA 

2018, 6/1/18, at 8–9; Amended Complaint, 2926 EDA 2018, 6/1/18, at 6–7.

However, Plaintiffs never claimed to have filed exceptions to the Sheriff’s 

proposed schedule of distributions under Pa.R.C.P. 3136, instead arguing they

had no legal duty to comply with Rule 3136 under, inter alia,

9 Community 

Federal Savings & Loan Assn. v. Luckenbach, 261 A.2d 327 (Pa. 1970). 

See Amended Complaint, 2628 EDA 2018, 5/9/18, at 7–9; Amended 

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7 Plaintiffs outlined this argument in their own words as follows:

The Sheriff charged and collected said 2% transfer tax from 

Plaintiff by ‘adding said 2% transfer tax’ to the ‘bid prices paid by 

Plaintiff.’ The said 2% transfer tax should have been subtracted 

off the ‘bid prices’ (the balance of which would go to Defendant as 

a lien Creditor or said writ of execution).” 

Amended Complaint, 2628 EDA 2018, at 4. 

8 Plaintiffs sought relief for unjust enrichment under both the Restatement 

(Second) and Restatement (Third) of Restitution. 

9

In each amended complaint, Plaintiffs offered additional case law in support 

of his position. Those cases, however, were either not relevant or not binding 

on this Court, and thus, are not discussed herein. 
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Complaint, 2895 EDA 2018, 5/9/18, at 9–10; Amended Complaint, 2902 EDA 

2018, 6/1/18, at 16–17; Amended Complaint, 2926 EDA 2018, 6/1/18, at 12–

14. 

The Banks filed preliminary objections under Pa.R.C.P. 1028, each 

asserting the pleadings failed to state a valid cause of action as Plaintiffs failed 

to follow the statutory remedy under Rule 3136 for filing exceptions to a 

proposed schedule of distribution from the Sherrif’s sale. The Honorable 

Arthur L. Zulick and the Honorable David J. Williamson sustained the Banks’ 

preliminary objections in each case, finding Plaintiffs’ failure to allege filing 

timely exceptions to the Sherrif’s sales’ distribution schedules pursuant to Rule 

3136 resulted in waiver. Moreover, the courts found themselves unable to 

grant equitable relief, as Plaintiffs failed to avail themselves of an adequate 

remedy at law.10 Plaintiffs filed notices of appeal and subsequently complied 

with Pa.R.A.P. 1925(b). 

Across all four briefs, Plaintiffs present the following identical issues, 

reproduced verbatim as follows:

1) Under Community Federal Savings v. Luckenback, 261 

A.2d 327 (Pa. 1970), [do Plaintiffs] have legal standing to file 

exceptions under Pa.R.C.P. 3136?

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10 In all cases except 2895 EDA 2018, the trial court also found cause to 

sustain the preliminary objections for Plaintiffs’ failure to join the Sheriff as a 

necessary party. 
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2) Under Pa.R.C.P. 3136(c), does only a party holding a 

‘recorded’ judgment/lien/mortgage under the lien priority 

statutes (42 Pa.C.S. Sections 8141–8142) have standing to file 

exceptions?

3) Even if Pa.R.C.P. 3136 applied under P[ennsylvania] “common 

law” and Shafer Electric v. Mantie, 96 A.3d 989 (Pa. 2014) 

does the failure to exercise a remedy at law[] preclude or bar

a later civil action for “unjust enrichment?”

4) In view of the recent 3rd Edition (2011) of [the] reinstatement 

[sic] of law on unjust enrichment and restitution, and section 

4(2) in particular of 3

rd Edition (2011) of Restatement of Law 

on “Unjust Enrichment and Restitution” render “moot” the 

defense of failure to exercise available “remedy at law?” 

5) [Plaintiff] was not a named party in the mortgage foreclosure 

case, and [was] not served with court process, therefore, under 

Martin v[.] Wilkes, 490 U.S. 755 [1989] is the appellant subject 

to Pa.R.C.P. 3136?

Brief of Appellant, at 1–3 (punctuation and capitalization adjusted) (emphasis 

and use of quotation marks in original). 

Plaintiffs’ appeals are from orders sustaining preliminary objections in 

the nature of a demurrer.

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 We, therefore, review Plaintiffs’ claims as follows:

Preliminary objections in the nature of [a] demurrer test the legal 

sufficiency of the plaintiff’s complaint. The question presented by 

the demurrer is whether, on the facts averred, the law says with 

certainty that no recovery is possible. Thus, our scope of review 

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11 We note Plaintiffs only raise arguments concerning their unjust enrichment 

claims, at no point mentioning the dismissal of Plaintiffs’ claims for declaratory 

judgment, conversion, equitable restitution, or special relief under Pa.R.C.P. 

1532. Consequently, all claims save those related to unjust enrichment are 

waived. See Cosner v. United Penn Bank, 517 A.2d 1337, 1342 (Pa. Super. 

1986) (finding all issues not included in argument section of brief waived). 
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is plenary and our standard of review mirrors that of the trial 

court. Accepting all material averments as true, we must 

determine “whether the complaint adequately states a claim for 

relief under any theory of law.”

Schwarzwaelder v. Fox, 895 A.2d 614, 618 (Pa. Super. 2006) (citations 

omitted). 

Plaintiffs assert a variety of theories in support of the proposition that 

the courts below erred in ruling that failure to follow Rule 3136 precluded the 

return of taxes improperly levied by the Sheriff.12 We, however, must first 

explore the rules governing proceedings related to sheriff’s sales provided by 

the Pennsylvania Rules of Civil Procedure before addressing plaintiffs’

argument. 

The Rules allow “any party in interest” to petition the court overseeing 

a sheriff’s sale to enter “any . . . order which may be just and proper under 

the circumstances.” Pa.R.C.P. 3132. “The [R]ules also state that the time for 

petitioning the court should occur within a reasonable time proximity to the 

date of the sale and the filing of the schedule of distribution.” Federal Nat. 

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12 Appellees do not dispute that the Sheriff erred in demanding Plaintiffs pay 

the transfer tax. See Northwest Savings Bank v. Knapp, 149 A.3d 95, 

(Pa. Super. 2016) (sustaining taxpayer’s objections where “Appellant filed 

timely exceptions contending that the transfer taxes should have been 

deducted from—and not added to—the winning bid[.]”) (emphasis added). 

They do, however, assert Plaintiffs waived their right to the disputed funds by 

failing to avail themselves of the procedural mechanism set forth by Rule 3136 

for contesting the schedule of distributions following a sheriff’s sale. 
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Mort. Ass’n v. Citiano, 834 A.2d 645, 648 (Pa. Super. 2003). Rule 3136 

lays out the time period for contesting amounts owed at a sheriff’s sale, stating

in relevant part:

The sheriff shall distribute the proceeds of sale in accordance with 

the proposed schedule of distribution, unless written 

exceptions are filed with the sheriff not later than ten (10) 

days after the filing of the proposed schedule.

Pa.R.C.P. 3136(d) (emphasis added).13 If no party files exceptions or a 

petition to set aside the sale, the sheriff is obligated to execute a deed to the 

property. See Pa.R.C.P. 3135(a) (“[T]he sheriff, at the expiration of twenty 

days but no later than 40 days after either the filing of the schedule of 

distribution or the execution sale if no schedule of distribution need be filed, 

shall execute and acknowledge before the prothonotary a deed to the 

property sold.”) (emphasis added). 

The rules make clear that a party dissatisfied with the schedule of 

distribution has ten days to file exceptions. Concord-Liberty Sav. And Loan 

Ass’n v. NTC Properties, Inc., 312 A.2d 4, 5 (Pa. 1973). After the delivery 

of the sheriff’s deed to the purchaser, the only possible attacks are those 

based on fraud or lack of authority to make the sale. Id. at 6 (“[A]fter the 

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13 In explicating Rule 3136, the comment states, inter alia, “[t]he rule . . . 

does not require the sheriff to serve or notify the parties that a schedule has 

been prepared. As a result, the parties must monitor the sheriff’s office on a 

daily basis to acquire the schedule in order to have the full ten days with which 

to prepare and file the exceptions.” Rule 3136, comment. 
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delivery of a sheriff’s deed to a purchaser[,] the only attacks possible on the 

sheriff’s sale are those based on fraud which vitiates the transaction, or a lack 

of authority to make the sale.”) (citation omitted); see also Sklaroff v. 

Weiner, 203 A.2d 366, 368 (Pa. Super. 1964) (“Where, as here, no fraud is 

alleged or shown but the only issue is the amount to which the holder of a 

valid lien is entitled out of the proceeds, the remedy under Pa.R.C.P. 3136 is 

adequate[.]”). If, after a sheriff’s sale, an appellant “neglect[s] to pursue the 

procedural remedies available to him, appellant has waived such challenges.” 

Citiano, supra at 648. 

Knapp, supra, offers a case-in-point example of how, under the Rules,

purchasers of property at a sheriff’s sale are obligated to seek redress for the 

improper assessment of transfer taxes. In Knapp, just as in the instant case, 

county sheriffs sold real property to a third-party purchaser. Knapp, supra

at 96. Following the sale, the sheriff added state and local transfer taxes to 

the winning bid, increasing the amount owed by the purchaser. Id. at 96–97. 

The purchaser in Knapp, however, properly filed timely exceptions to the 

sheriff’s proposed schedule of distributions. Id. at 97. Consequently, this 

Court was obligated to reverse the lower court’s order dismissing the thirdparty purchaser’s exceptions to the sheriff’s schedule of proposed distributions 

where the sheriff required the purchaser to pay transfer taxes associated with 

the sale. Id. 
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The instant facts differ in one critical respect—Plaintiffs failed to file

timely exceptions (or any exceptions whatsoever) to the Sheriff’s proposed 

distributions as required by Rule 3136. In light of the above-mentioned case 

law and an absence of any allegation of fraud, we find both that the remedy 

offered under Rule 3136 for protesting the schedules of distribution was 

adequate and that Plaintiffs’ failure to avail themselves of a valid statutory 

remedy resulted in waiver. See id.; see also NTC Properties, Inc., supra 

at 5. As the remedy offered was adequate, Plaintiffs are precluded from 

seeking relief related to their unjust enrichment14 claim as “equitable relief 

will be appropriate only where the statutory remedy is inadequate.” 

Chartiers Valley School Dist. v. Virginia Mansions Apartment Inc., 489 

A.2d 1381, 1386 (Pa. Super. 1985). 

All of Plaintiffs’ arguments directly or indirectly assert the inapplicability 

of Rule 3136; each one lacks merit. Brief of Appellants, at 1–2. Plaintiffs first 

argue Luckenbach, supra, divested Plaintiffs of standing to protest the 

Sheriff’s proposed distributions of funds under Rule 3136. Id. at 6–9. Their

reliance on Luckenbach, however, is entirely inapposite. In Luckenbach, 

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14 “Unjust enrichment is an equitable remedy defined as ‘the retention of a 

benefit conferred by another without offering compensation, in circumstances 

where compensation is reasonably expected, and for which the beneficiary 

must make restitution.’” Commonwealth by Shapiro v. Golden Gate 

National Senior Care LLC, 194 A.3d 1010, 1034 (Pa. 2018) (quoting 

Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d 816, 825 n.8 (Pa. 2013)). 
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our Supreme Court held that purchasers of real property at a sheriff’s sale 

could not hold themselves out as lien creditors to participate in the fund 

created by the sheriff’s sale as a means to recover damages caused by the 

previous homeowners. Luckenbach, supra at 474–75. Moreover, the facts 

of Knapp illustrate that third-party purchasers not only have standing to file 

exceptions under Rule 3136, such purchasers are entitled to relief when 

county sheriff’s erroneously levy transfer taxes so long as that purchaser 

timely files exceptions. Knapp, supra at 97. 

Plaintiffs’ second argument claims that Rule 3136(c) precluded Plaintiffs 

from having standing to file exceptions as Plaintiffs were not “lien creditors.” 

Brief of Appellant, at 9–12. As above, this argument is not borne out by the

plain text of Rule 3136(c), which, rather than addressing standing, details the 

sheriff’s duty to provide a certified list of liens upon properties sold at sheriff’s 

sales.

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15 The full text of Rule 3136(c) reads as follows:

(c) In sales of real property the sheriff shall attach to the schedule 

a list of liens upon the property sold as certified from the record 

by the proper officers or a guaranteed search from any title 

company authorized to do business within the county. The cost 

of certifying the list of liens or the title search, the 

acknowledgment, recording and registry of the deed and transfer 

or documentary stamps shall be charged as an expense of 

distribution.

Pa.R.C.P. 3136(c). 
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Plaintiffs’ third argument cites to Shafer Elec. & Constr. v. Mantia, 96 

A.3d 989 (Pa. 2014), for the proposition that procedural law cannot preclude 

a party from seeking relief for unjust enrichment. Brief of Appellant, at 12–

14. This argument incorrectly construes our Supreme Court’s holding, which 

stated that the Home Improvement Consumer Protection Act (“the Act”) did 

not preclude a plaintiff from recovering in quantum meruit, as the Act did not 

contemplate the preclusion of equitable common law remedies. Id. at 996. 

More importantly, the Act is not at issue in this case.

Plaintiffs’ fourth argument states that the Third “reinstatement [sic] of 

Law on Unjust Enrichment . . . render[s] ‘moot’ the defense of failure to 

exercise available ‘remedy at law[.]’” Brief of Appellant, at 14–17. Not only 

is this argument virtually unintelligible, it is rendered meaningless by the fact 

that “Pennsylvania courts have yet to adopt or apply the Restatement (Third) 

of Restitution in any context.” Sabella v. Appalachian Development 

Corp., 103 A.3d 83, 100 (Pa. Super. 2014).

In their final argument, Plaintiffs assert that because they were not 

named parties in the underlying foreclosure cases, and thus not served with 

process, it would violate Due Process under the United States Constitution to 

require that Plaintiffs follow Rule 3136. Brief of Appellant, at 17–21. This 

argument is misguided. Plaintiffs were not parties to the underlying mortgage 
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foreclosure suits because those matters were between the Banks and the 

relevant homeowners. Rather than searching for a constitutional remedy, the 

Plaintiffs would be better served by consulting the explanatory comment to 

Rule 3136, which states: “The rule . . . does not require the sheriff to serve 

or notify the parties that a schedule has been prepared. As a result, the 

parties must monitor the sheriff’s office on a daily basis to acquire the 

schedule in order to have the full ten days with which to prepare and file the 

exceptions.” Rule 3136, comment. 

For the reasons described above, we find no basis upon which the trial 

courts could have concluded that Plaintiffs stated a valid claim for relief under 

any theory of law. As such, we affirm the trial courts’ orders sustaining the 

defendants’ preliminary objections in the nature of a demurrer.

Orders affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/19