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[U] PNC Bank N. A. v. Gantt

Superior Court of Pennsylvania

February 11, 2014



Appeal from the Order Entered May 7, 2013 In the Court of Common Pleas of Perry County Civil Division at No(s): LP EJ 2012-15.

Joseph D. Seletyn, Esq.




Appellants, Jennifer Gantt, Michael Manbeck, et. al, appeal pro se from the May 7, 2013 order granting summary judgment in favor of plaintiff PNC Bank National Association (PNC), for possession of certain real property in an ejectment action. After review, we affirm.

PNC received title to 33 North 5th Street, Newport Borough, Pennsylvania (the premises), at a sheriff's sale on July 20, 2012, following a mortgage foreclosure action against the owner of the premises.[1] On December 17, 2012, PNC filed a complaint in ejectment against Appellants, who were residing at the premises. Appellants filed an answer on January 14, 2013. In that response, Appellants stated that the mortgage on the premises "was agreed upon by Scott Gantt, the spouse (legally separated) of [Appellant] Jennifer Gantt. At the time of their separation, Scott Gantt advised Ms. Gantt that he (Mr. Gantt) would continue to pay the monthly mortgage payments…." Appellant's Response to PNC's Complaint, at 3 (unnumbered). Appellants characterized the mortgagor of the premises as Ms. Gantt's "spouse, " and did not aver in their pleading that the marriage had been dissolved. Thus, Appellants averred that the property was acquired prior to the marital separation, appearing to suggest that Ms. Gantt possessed an ownership interest in this residence as marital property.

Additionally, Appellants' answer stated that PNC was "unwilling to work with Ms. Gantt to correct the issue, unless she was willing to pay the entire past due amount of $5, 734.81, in addition to the next month's payment of $598.52." Id. Appellants also averred in their pleading that PNC offered to accept mortgage payments from them. By doing so, Appellants claimed that PNC acknowledged Appellants had an ownership interest in this property.

On March 22, 2013, PNC filed a motion for summary judgment, which was granted by the trial court on May 7, 2013. The trial court's Pa.R.A.P. 1925(a) opinion notes that a "hearing" on the motion for summary judgment was held on May 7, 2013, at which Appellants "offered no legally cognizable argument, and admitted to the facts as presented by [PNC]." Trial Court Opinion, 6/26/13, at 1.[2] The court further concluded that:

[A]fter review, this Court believes [Appellants'] arguments to be absolutely baseless.
[]Appellants were afforded a full hearing on May 7, 2013, and essentially chose to not take advantage of the opportunity to be heard.

Id. at 2.

Appellants filed a timely notice of appeal from the grant of summary judgment in PNC's favor. They also filed a timely Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal in response to the trial court's order requiring that statement. The issues as related in Appellants' Rule 1925(b) statement are as follows:

1) If this Court granted plaintiff(s) Ejectment motion on evidence provided by Plaintiffs, the Court erred in not requiring additional evidence which would have contrdicted [sic] limited evidence provided.
2) If this Court granted summary judgement [sic] to Plaintiffs solely upon mere evidence provided, the Court erred in not allowing Defendants [the] opportunity to have [a] hearing where they would have produced evidence contrary to Plaintiff(s)['] evidence.
3) If this Court denied the Defendants the opportunity to present a case where evidence showed that Defendants attempted to resolve this issue prior to Plaintiffs['] filing foreclosure proceedings, this Court erred in not allowing a hearing to show cause in this matter.
4) If this Court denied the Defendants a reasonable opportunity to prepare and present evidence in support of their claim before he granted the Plaintiff(s)['] motion of ejectment, the Court erred in denying defendants Due Process where they cojuld [sic] have presented relevant evidence therein.

Concise Statement of Errors, 6/21/13, at 1-2.

In their brief, however, Appellants set forth the following issues:

1) Did the Plaintiff(s) err when they foreclosed on the property in question without first attempting to negotiate future mortgage payments with current residents?
2) Did the Plaintiff(s) err when they informed the Court[] improperly of actual face value of the property in question?
3) Did the Plaintiff(s) err when they refused to renegotiate the mortgage in question with Defendant Jennifer Gantt and Michael Manbeck prior to proceeding prematurely with foreclosure actions?
4) Did the Plaintiff(s) err when they failed to inform the Court[] of their attempt to sell the Defendants the property in question for a third of the value they presented to the Court[], after having property appraised?

Appellants' brief at 4 (unnumbered).

We have reviewed both lists of issues, recognizing that the issues are not consistent. In their concise statement, Appellants' allegations of error appear to center on a failure by the trial court to conduct a hearing, while in their brief Appellants' allegations focus on PNC's refusal to offer them "fair recompense to negotiate or resolve this matter." Id. at 6. Notably, Appellants do not allege in their brief that they were denied a hearing.

Unfortunately, Appellants have waived all issues. It is apparent that the issues listed in Appellants' brief are not the same as those listed in their Rule 1925(b) statement. Therefore, we must conclude that Appellants have not preserved those issues for our review. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provision of this paragraph (b)(4) are waived."). Furthermore, the issues raised in Appellants' Rule 1925(b) statement are not presented/argued in their brief; thus, they are waived. See Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa.Super. 2012) (stating Appellant's failure to develop an argument with citations to authority waives claim).

Additionally, a perusal of Appellants' brief indicates that briefing rules were not followed.[3] For example, the argument section of Appellants' brief states in its entirety that:

The Defendants were never offered fair recompense to negotiate or resolve this matter and they should be afforded that right before being arbitrarily and unjustly evicted from their home.

Appellants' Brief at 6. It is evident that Appellants have not provided discussion about each issue raised nor do they cite to any authority in support of this argument. Pa.R.A.P. 2119(a) provides in pertinent part:

(a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.

Appellants have utterly failed to comport with this rule.

Although we recognize Appellants' pro se status, we also remind them that:

While this [C]ourt is willing to liberally construe materials filed by a pro se litigant, we note that appellant is not entitled to any particular advantage because [he/she] lacks legal training. As our [S]upreme [C]ourt has explained, any layperson choosing to represent [himself/herself] in a legal proceeding must, to some reasonable extent, assume the risk that [his/her] lack of expertise and legal training will prove [his/her] undoing.

Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942 (Pa.Super. 2006) (quoting Commonwealth v. Rivera, 685 A.2d 1011 (Pa.Super. 1996)). Appellants should be aware that this Court will not become their counsel. Id.

Simply stated, Appellants have failed to preserve any issue for our review. We, therefore, affirm the trial court's order granting summary judgment in PNC's favor.

Order affirmed.

Judgment Entered.

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