J-A10023-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A. 

SUCCESSOR BY MERGER TO 

WACHOVIA BANK, N.A.

v.

MARZAILE SCICCHITANO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3056 EDA 2017

Appeal from the Order Entered August 25, 2017

In the Court of Common Pleas of Delaware County Civil Division at 

No(s): 2014-11559

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 22, 2018

In this mortgage foreclosure action, Marzaile Scicchitano has appealed 

from an order that denied his Petition to Set Aside Sheriff’s Sale. He sought 

to undo the sheriff’s sale because of alleged misrepresentations in 

communications from Appellee, Wells Fargo Bank, N.A. Successor by Merger 

to Wachovia Bank, N.A. (“Bank”), allegedly causing him to believe that the 

sale would not proceed. He also contended that the sale price at the sheriff’s 

sale was too low. The Court of Common Pleas, the Honorable Chad F. Kenney, 

denied the petition. Judge Kenney concluded that Scicchitano reasonably 

should have known that the sheriff’s sale would proceed. He also rejected 

Scicchitano’s price challenge. We affirm based on Judge Kenney’s opinion. 

We adopt Judge Kenney’s recitation of the factual and procedural 

history. See Trial Court Opinion, filed 10/24/17, at 1-3.
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Scicchitano raises four issues on appeal:

1. Did the Court abuse its discretion or otherwise err in denying 

[Scicchitano’s] Petition to Set Aside Sheriff’s Sale where, 

after a hearing, it was undisputed that (a) [Bank] last direct 

communication (in contrast to ongoing communications 

from [Bank’s] third party attorney which [Bank] instructed 

[Scicchitano] would occur) misrepresented that [Bank] (i) 

“received the documentation you sent us supporting your 

request for mortgage assistance...;” (ii) “as part of the 

foreclosure process, you may receive notices from a third 

party attorney delivered by mail or see steps being taken to 

proceed with foreclosure...;” and (iii) “if your loan has been 

referred to foreclosure and you have submitted all required 

documentation, we will not conduct a foreclosure sale while 

your documents are being reviewed” ((i), (ii) and (iii) being 

hereinafter referred to as the “Final Communication 

Misrepresentations”); and (b) despite those Final 

Communication Misrepresentations, Appellant [sic], without 

any further direct communication, proceeded with a sheriff’s 

sale and sold [Scicchitano’s] property at 61.8% of it’s [sic] 

appraised Fair Market Value of $100,000, approximately 

49% of [Bank’s] internal value and 30% of the total debt 

alleged to be due from [Scicchitano] to [Bank]?

2. Did the Court abuse its discretion or otherwise err in not 

finding that the combination of (a) the grossly inadequate 

or inadequate price; and (b) the irregularities in the notice 

process, consisting of (i) the Final Communication 

Misrepresentation, and (ii) two prior continuances of the 

ultimate sale unilaterally effectuated by [Bank] (which 

created a false sense of security in [Scicchitano] that the 

ultimate sale would also be continued based on the Final 

Communication Misrepresentation); created an irregularity 

in the notice procedure and denied [Scicchitano] of due

process rights, and was sufficient cause to set aside the 

sale?

3. Did the Court abuse its discretion or otherwise err in not 

granting [Scicchitano’s] Petition to Set Aside Sheriff’s Sale 

by in effect inequitably and unfairly shifting the burden to 

[Scicchitano] to (a) have understood the Final 

Communication Misrepresentation was a misrepresentation, 
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and (b) correct [Bank’s] Final Communication 

Misrepresentation?

4. Did the Court err by allowing undue bias against other 

alleged misbehaviors of [Scicchitano] that are not relevant 

to the due process question to unduly influence the 

determination of whether the substantially below value sale 

and the irregularities and defect in notice created by the 

Final Communication Misrepresentation and prior unilateral 

continuances establish sufficient cause to set aside the sale 

and violate [Scicchitano’s] due process rights?

Appellant’s Br. at 4-6. 

Scicchitano waived his second and fourth issues by not raising them 

below. See Pa.R.A.P. 302. They are meritless in any event. As to the second 

issue, Judge Kenney did not err in not considering the combined effect of 

Scicchitano’s sale price and misrepresentation arguments. The issues are not 

logically related – that is, any misunderstanding on Scicchitano’s part about 

whether the sale would proceed had nothing to do with the price obtained at 

the sale, and vice-versa – and to the extent either argument would carry any 

weight, it would not reinforce the other. Regarding the fourth issue, as we 

explain below, Judge Kenney only mentioned Scicchitano’s failure to make 

payments as one of the reasons that Scicchitano reasonably should have 

known that the foreclosure sale would occur. 

We affirm Scicchitano’s remaining issues based on Judge Kenney’s 

opinion. A petition to set aside a sheriff’s sale is a request for equitable relief 

addressed to the sound discretion of the Court of Common Pleas. Blue Ball 

Nat’l Bank v. Balmer, 810 A.2d 164, 167 (Pa.Super. 2002); Greater

Pittsburgh Bus. Dev. Corp. v. Braunstein, 568 A.2d 1261, 1263 (Pa.Super. 
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1989). The petitioner bears the burden of proving circumstances warranting

the Court of Common Pleas to exercise its equitable powers and set aside the 

sale. Id. We will reverse the Court of Common Pleas’ decision not to set aside 

a sheriff’s sale only for a clear abuse of discretion. Kaib v. Smith, 684 A.2d 

630, 631-32 (Pa.Super. 1996).

Scicchitano argues that the Bank’s alleged misrepresentations led him 

to believe that the sheriff’s sale would not take place. Scicchitano had applied 

to the Bank to participate in a loan assistance program. The Bank first advised 

him by letter that “[b]ecause you have not provided us with all the required 

documentation to complete the application, we are not able to offer you 

assistance options.” Letter from Bank to Appellant of 12/16/16, at 1, R.191a. 

The Bank sent a subsequent letter three days later, stating that “[i]f your loan 

has been referred to foreclosure and you have submitted all required 

documentation, we will not conduct a foreclosure sale on this loan while your 

documents are being reviewed. . . .” Letter from Bank to Appellant of 

12/19/16, at 1, R.58a. This letter also advised Scicchitano that “[a]s part of 

the foreclosure process,” he might “receive notices from a third-party attorney 

delivered by mail or see steps being taken to proceed with a foreclosure sale 

of your home.” Id. Scicchitano argues that the second letter misled him and 

caused him to incorrectly believe that the sheriff’s sale would not take place 

as scheduled. 

Regarding the sale price, Scicchitano argues that the amount ($61,800)

was grossly inadequate because it was 61.8% of the Bank’s appraisal of the 
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property’s value ($100,000), and 49% of the Bank’s internal valuation

($125,000). 

Scicchitano also contends that Judge Kenney improperly put the burden 

on Scicchitano to learn that the alleged “misrepresentation that his loan was 

still under review” was untrue. Appellant’s Br. at 22. He further argues that 

he reasonably understood the statements that he might receive 

communications from attorneys about the foreclosure process, and that the 

sale would not happen while his loan assistance application was under review, 

“as an instruction not to be concerned by attorney communications.” Id.

(emphasis in original).

Judge Kenney’s Pa.R.A.P. 1925(a) opinion explains that Scicchitano 

should have known that the sheriff’s sale would take place. Judge Kenney 

points out that the second letter did not in fact suggest that a sheriff’s sale 

would never occur. Rather, the letter simply let Scicchitano know that the 

sheriff’s sale would not take place during the review period, which the previous 

letter told him had already ended. Judge Kenney concluded that because of 

the language of the letters, and the fact that Scicchitano did not make any 

payments between the time of the letters and the day of the sheriff’s sale, 

Scicchitano reasonably should have known that the sale would go forward. 

Regarding the sale price, Judge Kenney explained that the law presumes 

that the price obtained at a sheriff’s sale is the highest and best obtainable

price. Trial Court Opinion at 5 (citing Blue Ball Nat’l Bank, 810 A.2d at 167).

Judge Kenney observed that cases in which Pennsylvania courts have set aside 
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a sheriff’s sale for an inadequate sale price were cases where the sale price 

was ten percent or less of the established market value. Id. at 6 (citing Bank 

of America, N.A. v. Hood, 47 A.3d 1208, 1212 (Pa.Super. 2002)). Judge 

Kenney concluded that because the only evidence Scicchitano produced on 

this issue was an appraiser’s affidavit that the property was worth $100,000, 

and the property sold for 61.8% of that figure, Scicchitano failed to rebut the 

presumption.

Finally, Judge Kenney properly put the burden on Scicchitano to 

persuade the court that the alleged misrepresentations merited setting aside 

the sheriff’s sale. See Blue Ball Nat’l Bank, 810 A.2d at 167. The court

concluded that Scicchitano failed to carry his burden to do so, and Scicchitano 

has not established that Judge Kenney’s decision was a clear abuse of 

discretion. Id. We affirm based on Judge Kenney’s Opinion. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/18