Housing Opportunity Partners v. Mehalshick, M.
Housing Opportunity Partners v. Mehalshick, M. No. 1465 EDA 2016
| Pa. Super. Ct. | Jun 8, 2017Background
- Housing Opportunity Partners REO, LLC obtained a residential mortgage foreclosure judgment against Marianne Mehalshick and then filed an ejectment complaint (Mar 26, 2014) to recover possession.
- Mehalshick filed preliminary objections (Apr 24, 2014) which the trial court overruled (Oct 1, 2015), then answered with new matter (Oct 20, 2015).
- Appellee moved for summary judgment (Dec 4, 2015); the trial court initially denied the motion (Mar 14, 2016), then granted reconsideration and entered summary judgment for Appellee (Apr 19, 2016).
- Mehalshick filed a timely appeal and a Rule 1925(b) statement, but her appellate brief raised issues not specifically set forth in the Rule 1925(b) statement and did not raise several arguments in the trial court or in opposition to summary judgment.
- The Superior Court held that Mehalshick waived her appellate issues for failing to present them in the trial court and for failing to include them in her Rule 1925(b) statement; it affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint was legally insufficient and defective (motion for judgment on the pleadings/summary judgment) | Mehalshick argued the complaint was legally insufficient and defective. | HOP argued it was entitled to summary judgment based on foreclosure judgment and ejectment claim. | Waived by Mehalshick for failing to raise in trial court and in Rule 1925(b); court affirmed. |
| Whether the trial court improperly granted reconsideration outside 30-day period | Mehalshick contended reconsideration was untimely and improper. | HOP maintained reconsideration and summary judgment were procedurally proper. | Waived for failure to raise below and in Rule 1925(b); not considered on appeal. |
| Whether foreclosure judgment and sheriff’s sale were nullities allegedly procured by unauthorized practice of law/fraud | Mehalshick alleged fraud and unauthorized practice of law invalidated prior foreclosure and sale. | HOP disputed or did not have these claims preserved for appellate review. | Waived for failure to raise in opposition to summary judgment and omission from Rule 1925(b); not addressed on merits. |
Key Cases Cited
- Sigall v. Serrano, 17 A.3d 946 (Pa. Super. 2011) (distinguishes judgment on pleadings and summary judgment procedures)
- Gallagher v. Harleysville Mut. Ins. Co., 617 A.2d 790 (Pa. Super. 1992) (procedural treatment of motions disposing of cases pretrial)
- Devine v. Hutt, 863 A.2d 1160 (Pa. Super. 2004) (issues not raised in opposition to summary judgment are waived on appeal)
- Linde v. Linde Enterprises, Inc., 118 A.3d 422 (Pa. Super. 2015) (issues omitted from Rule 1925(b) statement are waived)
- Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) (appellate court may raise waiver under Rule 1925(b) sua sponte)
- Wirth v. Commonwealth, 95 A.3d 822 (Pa. 2014) (appellate review may address waiver sua sponte)
- In re K.L.S., 934 A.2d 1244 (Pa. 2007) (when issues are waived, appellate court ordinarily affirms rather than quashes)