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[U] Bank of New York Mellon v. Thayer

Superior Court of Pennsylvania

February 21, 2014

THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, as Indenture Trustee for the Registered Holders of ABFS Mortgage Loan Trust 2002-3, Mortgage-Backed Pass-Through Certificates, Series 2002-3
v.
JOSEPH A. THAYER (Mortgagor), and RENEE M. DiFRANCO-THAYER, Appellees APPEAL OF: UDREN LAW OFFICES, P.C.

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on November 28, 2012 in the Court of Common Pleas of Erie County, Civil Division, No. 12339-10

BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Udren Law Offices, P.C. ("Udren Law"), [1] appeals from the Order that imposed sanctions of $1, 000.00 against Udren Law. Additionally, Renee M. DiFranco-Thayer ("DiFranco-Thayer") has filed a Motion to Dismiss the Appeal. Because we conclude that the trial court committed an error of law in imposing sanctions against Udren Law, we vacate the sanctions Order. Additionally, we deny DiFranco-Thayer's Motion to Dismiss.

The trial court set forth the relevant history underlying this appeal as follows:

The instant matter involves a mortgage foreclosure action, filed against Joseph A. Thayer and [] DiFranco-Thayer on May 28, 2010. The subject property was sold at Sheriff's Sale on August 17, 2012. On September 17, 2012, Plaintiff filed a Motion to Set Aside Sheriff's Sale.[FN] After a request for a scheduling order from … Di[F]ranco-Thayer [], [the trial c]ourt scheduled a Hearing on Plaintiff's Motion for November 21, 2012[, ] at 1:30 p.m. [(hereinafter "the Hearing")]. [] Di[F]ranco-Thayer filed a Brief in Opposition to Plaintiff's [Motion] on November 20, 2012.
[FN] [] Plaintiff offered no reasons why it requested to set aside the Sheriff's Sale. [John] Fessler[, Esquire ("Attorney Fessler")], who appeared on behalf of Plaintiff at the November 21, 2012 Hearing, also acknowledged that no reasons were provided in Plaintiff's Motion to Set Aside Sheriff's Sale.
According to defense counsel [for DiFranco-Thayer], [Susan] Fuhrer Reiter[, Esquire ("Attorney Reiter")], Plaintiff [informed Attorney Reiter that it] was unaware of the Hearing until 11:19 a.m. on November 21, 2012[, purportedly] because a paralegal did not give [] notice of the [H]earing to the scheduler. Plaintiff sent [its] local counsel, Attorney Fessler, to the Hearing with a Praecipe to Withdraw Motion to Set Aside Sheriff's Sale.[2] Attorney Fessler stated that he was contacted by Plaintiff around 11:00 that day, just a few hours before the Hearing.
At the Hearing, Attorney Fessler indicated that Plaintiff was withdrawing its Motion to Set Aside the Sheriff's Sale. [In response, ] Attorney [] Reiter stated that she felt Plaintiff's mismanagement was sanctionable conduct[, ] as her time and her client's money was wasted when Plaintiff notified her that it intended to withdraw its [M]otion just hours before the Hearing. [The trial c]ourt denied Plaintiff's Motion to Set Aside Sheriff's Sale in light of Plaintiff's withdrawal and directed Plaintiff to pay [Attorney Reiter] $1, 000.00 as a sanction for its conduct.[3][Notably, Attorney Fessler did not object to the trial court's imposition of sanctions against Plaintiff at the Hearing.]

Trial Court Opinion, 3/6/13, at 1-2 (citations to record and some footnotes in original omitted; footnotes added).

One week after the Hearing, on November 28, 2012, the trial court, sua sponte, entered an Amended Order (hereinafter "the Amended Sanction Order") specifically directing Udren Law to pay DiFranco-Thayer $1, 000 as a sanction for its improper conduct pertaining to the Motion to Set Aside Sheriff's Sale. In response to the Amended Sanction Order, on December 11, 2012, Udren Law filed a Motion for Reconsideration. In this Motion, Udren Law asserted that the imposition of sanctions against it was inappropriate because the trial court deprived it of due process by failing to provide it proper notice and an opportunity to respond prior to the imposition of sanctions. On December 28, 2012, Udren Law timely filed a Notice of Appeal from the Amended Sanction Order.[4] In response, the trial court filed a Pa.R.A.P. 1925(a) Opinion, recommending that this Court quash the appeal. The trial court opined that, since there was no objection made at the Hearing regarding the trial court's imposition of sanctions, any challenge to this ruling is waived on appeal. See Trial Court Opinion, 3/6/13, at 2. Subsequently, DiFranco-Thayer filed a Motion to Dismiss the Appeal with this Court, to which Udren Law filed a response.

Before addressing Udren Law's issues on appeal, we must first address DiFranco-Thayer's Motion to Dismiss. According to DiFranco-Thayer, "because [Udren Law] did not raise objections to the imposition of sanctions at the [H]earing, [it thereby] waived the issue below by failing to make a timely and specific objection at the appropriate stage of the proceedings." Motion to Dismiss, 7/3/13, at 3 (citing, inter alia, Fillmore v. Hill, 665 A.2d 514, 515-16 (Pa. Super. 1995) (stating that, "in order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial ...


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