*1 sale, 9, in National March to the law established Union to the 2001 sheriffs prior Pittsburgh Mor- it is because of its failure to do so that Bank and reaffirmed and of Trust NY. reject Appellee’s Co. argument. gan we now Guar. of ¶ ¶ find that ten- levy sheriffs set forth 14 We when The sheet of in the writ of the the of dered the amount listed judgment the amount on writ 7, March $158,910.86, plus sheriffs costs on execution as and the amount execution as a mat- $5,999.01. judgment the was satisfied costs as As of of sheriffs legal Appellee 7, 2001, ter of law. It was error designa space March left for legal and accept Appellant’s tender to not levy of interest on left tion sheet was This not to cancel sheriffs sale. error appears It from review of the blank. our set holding is consistent with the law as Appellee Pennsyl record followed as by forth this Court stated above. throughout vania Rules Civil Procedure Ap mortgage against foreclosure action herein, For the forth we reasons set up praecipe to and pellant including its matter trial court for remand this to the judgment of execution on entered. writ March purpose granting Appellant’s Yet, Appellee there is no indication to sheriffs 2001 motion set aside the petitioned ever for an amend trial court to further direct the sale. We judgment prior ment to the it to received judg- Appellee satisfy both March Appellant’s 2001 tender of Appellee’s mortgage upon and the ment amount of the indicated on total $159,909.87, amount of tender of the face the face of the writ of execution. to the pursuant the writ of execution every right petition had court to levy County Sheriffs real estate Bucks amend the writ of to include execution 7,2001.11 as of March sheet prior Ap additional interests and costs ¶ Reversed; Remanded; Jurisdiction $159,909.87 faith pellant’s good tender of relinquished. March 2001. Had this measure been taken, Appellant proper had would have by way proper legal procedure
notice satisfy the
the total amount needed to
judgment prior to the 2001 sher March This is the demanded iffs sale. notice we EDUCATION RESOURCES Pittsburgh National Union Bank of INSTITUTE, INC., Morgan Trust NY. Groar. Co. of Appellee, fail- Perhaps realization of this ure, accept Appellee thereafter refused COLE, Appellant. E. Robert tender of the full amount Appellant’s original judgment and further refused Superior Pennsylvania. Court of Afterwards, to cancel sheriffs sale. Argued Feb. 2003. aside filed to set petition when 13, 2003. Filed June sale, the denied the sheriffs lower court petition by relying upon Appellant’s by Appellee rationale set
same forth contrary find this
appeal. We action to order, Appel- well as ing protective as light of the rendered decision now Court, unnecessary judicial address bias. regarding we find it lant’s third issue grant- Appellant’s regarding the second issue *4 Michell, ap-
Albert J. Philadelphia, for pellant. Southeastern, Opher, appel-
Ron Z. for lee. ELLIOTT,
Before: FORD KLEIN and *, MONTEMURO JJ.
MONTEMURO, J.
¶ 1 appeal judgment This is an from a $85,0001 entered in of Appellee favor * assigned Superior Retired Justice Court. Judgment August was entered until not 905(a) permits 2002. Pa.R.A.P. us to address Appellant's Appeal, August 1. Notice of filed appeal though properly this as it had been 19, 2002, purports appeal from the Order ("A appeal filed. notice of after the filed Order, July dated This which is announcement of determination but before July July but filed on is not final as it entry appealable of an order shall be merely Appellant’s post denies trial motion. jury sitting in the should day after trial in a contract tion same case a three judgment represents principal Riccio v. action. The each other’s decisions.” overrule Co., a series plus Republic interest on of loans Ins. American omitted). (1997) (citation guarantor. Appellant, acted as lawyer, now practicing borrowed as to whether making a determination money to cover costs of law school court “looks applies, appellate the rule examination. rulings bar in the con- occurred to where of the case.” procedural posture of the text ¶2 appeal, presented this Court is On Id. support Appellant’s with nine issues court’s
request that we reverse the trial objec- preliminary raised denial of his motion enter a subjects, among on five was tions or, notwithstanding verdict, alterna- An Order question proper service. Af- tively, grant that we him a new trial. 15, 2000, by judge the first entered June consideration, do ter careful we decline to only assigned to case addressed either. service, directing discovery matter of *5 question on the of whether the be taken
¶3 Preliminarily we note that was au- accepted who had service person judgment notwithstanding a entry “[t]he all do so. Decision on other thorized to A remedy. ... is a verdict drastic deferred, and no specifically was issues lightly ignore findings of court cannot ruling Appellant’s was further made Lu, jury.” a duly selected Neal Neal objections until the second preliminary (1987) 103, 110 365 Pa.Super. (trial) judge immediately them dismissed (citations omitted). Thus the to trial on March prior evidence must considered [T]he be implicat- jurisdiction rule is not coordinate light most to the verdict favorable violated, Appellant’s much less and ed winner, given and he must be the benefit issue is merit. claim on this without every reasonable of fact inference therefrom, arising any and conflict ¶ Next, argued Ap that it is the evidence must in his be resolved upon original process failed serve pellee Moreover, n.o.v. favor. [a] eight and because there was Appellant, only be case should entered in a clear delay before of the month reinstatement any doubts must in fa- and be resolved (ever) no could complaint, proper service Further, vor of the verdict winner. claim in Appellant made. raised this be judge’s appraisement of evidence is not objections on service preliminary based his based on how have voted he would However, was, initially, defective. jury, had he a member but been the com record reveals that the certified they as through on the facts come 31, 2000, was reinstated on October plaint jury’s sieve of the deliberations. served personally that was and Raeuchle, Moure v. Pa. 2, 2000, a matter he admit November (citations omitted). (1992) 1003, 1007 158). (N.T., 3/11/02, More at trial. at ted over, authority for or Appellant offers no argues that first reasoning support proposition dismissing pre erred in his trial court reinstatement delay that before liminary objections ruling as that violated advances faith, or that rule, constitutes bad jurisdiction complaint di of a coordinate reinstated, becomes jurisdic- complaint, once “judges of coordinate rects that thereof.”) entry day after such and on treated as filed Indeed, so, However, unservable. governs he cannot do as here. pro- Section 6122 (4) 401(2) Pa.R.C.P. and provide part: that a in pertinent vides complaint may any be reinstated “at time a foreign nonprofit corporation shall times”; any number of and once rein- doing not be considered to be business stated is to be applicable served within the ... by this Commonwealth reason of time frame. There is no contention carrying on in this Commonwealth complaint reinstated inwas one or the following more of acts: any way problematic. Accordingly, for (1) Maintaining defending any or ac- reason, too, concerning the claim ser- tion or administration or arbitra- vice is waived.2 tion effecting or the settlement
¶ Appellant’s next contention is thereof or the settlement of claims denying the trial court erred in disputes. his compulsory motion for Specifical nonsuit. ly, Appellant argues pursuant to the (8) Securing collecting debts or en- Foreign Act, Corporations Business forcing any rights in property se- § C.S.A. seq., Appellee et was re curing them. quired to obtain authority a certificate of out, As Supreme pointed our Court has from Pennsylvania Department corporation “the test for whether a is ‘do- conducting State before in the business ing business’ this Commonwealth is a Commonwealth, and failed to do so. Sec fact, question of to be resolved on case- provides tion 4101 Trust, by-case basis.” American Hous. *6 [e]xcept provided as otherwise in this Jones, 311, 1181, III v. 548 Pa. 696 A.2d section in subsequent provisions or of (1997). Here, 1184 evidence was received article, this apply this article shall to and Appellee’s activity Pennsylva- that sole in “corporation” the words or “foreign nia was to sue borrowers who failed to in corporation” business this article shall loans, is, repay their that to collect debts. every foreign include corporation for Appellant at produced any no time evi- profit, that, including corporation a if a in dence contradiction of this information. corporation profit, domestic would be Appellee’s The trial court found that activi- institution, a banking credit union or ties were excluded under subsections savings association. above, quoted of the Act obviating the added). (emphasis
Id. necessity for a certificate. see no We ¶ 8 As is a nonprofit corpora- reason to disagree. tion, necessity for a under certification ¶ Moreover, 10 as the trial court ob- statutory section does not arise. served, promissory signed by *7 Appellant’s astonishing remark conten ill will.” partiality, prejudice, bias or Id. “should have been afforded tion that he required at 1123. The trial is court to address the shortcom opportunity grant only jury a new trial verdict where though [sic] in its ings plaintiffs Complaint “against weight the clear of evidence Brief at (Appellant’s limine.” motions in judicial or has effected process [where] 20). to the Rules of Appellant refer We injustice.” Ridge, a serious v. 435 Austin mea for appropriate Civil Procedure (1969) (citing Pa. 124 255 accomplish purpose.3 sures his Malatesta, Pa. Pritchard v. 218 (1966)). ¶ argues that A2d Appellant 13 Next con of were committed “several errors law A limine for procedure motion in is a in violation cerning [Appellee’s] evidence ruling admissibility on the of obtaining a (Id.). The in trial, pre-trial [a] of order.” during to or but prior evidence only parties that question instructed been the evidence has offered. before in the memorandum pretrial exhibits listed reviewing rulings on motions in When limine, in or used for could offered evidence scope of review apply we objections, judgment. filing preliminary addition summary Appellant unsuccessfully for moved anything impeachment other than find pur- the elements of the cause established, poses, “except for cause action good shown.” have been a judgment 12/13/01). (Order, dated Appellant points compulsory nonsuit is appropriate. four in instances was if are Only the facts so clear that reason exhibits, permitted to use such and insists persons disagree able not their could as to permission in the given was absence evidentiary significance should fact good cause to do so. jury. Long finder take the case from the (cid:127) Manzo, Pa.Super. 451, ¶ noted, already As we have the ques- 373, (1996), denied, appeal tion of whether certain should be (1997). A.2d 967 is a admitted matter within the sound dis- cretion of the trial court whose decisions did, fact, Appellant move for will we disturb absent abuse of that compulsory following the close of nonsuit A Delpopolo, supra. discretion. review of however, so, Appellee’s He did case. alleged errors committed trial grounds other than those which form the declining to enforce own order insufficiency basis for this claim that, fact, reveals no error occurred. appears time in for the first his Motion in question One the documents was hot 227.1(b)(1) Post Trial Relief.4 Pa.R.C.P. until available after the exhibit list had provides that submitted; already been another pre- was (b) may grant- Post trial relief not be in response unanticipated sented to an de- therefor, ed grounds unless the fense; and two were limited to use in (1) available, if then were raised refreshing a recollection. witness’ We find motion, pre-trial proceedings byor no error in the court’s determinations. objection, re- point for charge, ¶ 15 Next directs us to six Appellant quest findings con- of fact or further instances trial court error in law, proof clusions of offer of deciding pri- certain raised both questions other method at trial. appropriate during and trial. As none of the contention, 19 Given the nature of the arguments supported by advanced are le- grounds an objection for such had been Lakatosh, authority, gal they are waived. inception available since the of the case. 2119(a). supra; they Pa.R.A.P. Had been Accordingly, this issue is waived. Had it preserved, properly we would find them find, waived, not been would we as did meritless. court, trial having admitted ¶ 16 also contends that indeed, money, borrowed the *8 evidence to support the was insufficient might applied even have for forbearance Specifically, argues the verdict. he that he on the loans. such circumstances Under party any was never identified as a to of done, argue, to as has that lack Appellant suit, forming the contracts the basis for Appellee’s of defeats claim authentication questioned and was never as to whether he against disingenuous him at is best. had, fact, signed the notes. ¶ last Appellant’s 20 two issues concern ¶ finder, judgment Ap- 17 fact the Where the view amount the awarded light pellee by jury. all the in a most note that the ing evidence favor We $49,156.26 reasonably to the not award breaks as follows: plaintiff, able could down Appellant's Preliminary Objections only party identified as a to the action. in- Appellee was not cluded assertion that
501
subject
attorneys’
on
(guaranty
paid);
inquiry
at all
principal
amounts
$13,480.63 interest;
$22,363.11
fees;
requested
jury
and
attor-
no
instruction on
he
neys’ fees.
objection
and made no
to
point,
may
He
not
charge on the issue.
court’s
¶
First,
21
claims
Appellant
amount was
complain
now
was awarded
in
Appellee
double
has
held that
long
This
wrong.
Court
actually
terest
had
on the
accrued
to
permitted
ques-
cannot be
party
“[a]
Since,
out,
Appellee points
Appel
loan.
as
expressly
or deliber-
tion facts
admitted
starting point
lant uses
inaccurate
Martz,
v.
ately
at trial.” Schmidt
waived
due,
calculate the amount
his assertion is
Pa.Super.
161
589
Moreover,
itself incorrect.
decision
“[t]he
(1947).
not
grant,
grant,
new trial based
jury
on the
of a
is
excessiveness
verdict
¶24
affirming
judg
Before
within the sound discretion of
trial
case,
ment in this
this Court would take
court,
will
upheld
and
decision
be
yet
principle,
another well
notice
settled
gross
appeal absent
abuse of discretion.”
appellant
that “when an
raises an extraor
Perrige,
Tesauro v.
Pa.Super.
650
dinary
appeal,
number
issues on
as
denied,
(1994),
appeal
case,
presumption
arises
there
(1995).
Pa.
lee’s witnesses that the notes KLEIN, Dissenting J.: Opinion language alluding contain majority The respectfully 1 I dissent. the payee’s responsibility for reasonable upon conceding that even The states attorneys’ upon fees default. wit- defective, appeared Cole was because ness testified that the amount of these court, matter in his claim usually fees determine. and defended the the court to examination, I fact remains disagree. no is waived.5 The On cross made *9 was majority Appellant claims that below v. service 5. The relies on Webb United Servs. Ass’n., appeared it and defend- Pa.Super. defective. Because Auto. merits, (1974), any this was support the defect of sort that because ed on to its conclusion appeared waived. Pa.R.C.P. 1032. Cole at trial and defended himself First, state n. 2. the case does not In Id. at 738 he waived claim of defective service. Webb, why was following exactly appellant claimed the service the in a our court stated Second, a Rule 1032 states that defective. footnote: preliminary Cole asserted his supporting positions. Apparently, ob- their no jections person that the who was served briefs depositions, discovery or were filed plaintiffs complaint with at his apartment by party in to response either the court’s building the manager was not of the budd- fact, preliminary objections order. the (as ing alleged plaintiff), merely by but the ultimately upon by ruled were security guard authority had who no court until after negotiations settlement accept service.6 Because the trial court prior to commencement of trial. When hearing never held a on Cole’s preliminary reconvened, after court unsuccessful objections, raised a which claim colorable attempts, settlement denied the service, of improper should objections bring but stated that Cole could Moreover, be vacated. Cole was never up via a compulsory the service issue later given the opportunity to file an answer to Cole then contest nonsuit. did service complaint alleged improper due nonsuit, for a moving court ulti- service, and, therefore, was foreclosed denied, mately stating: from raising any waivable affirmative de- here, trial, you You are at Denied. are fenses in new matter. defended, I you have don’t so see where ¶2 Pennsylvania Rule According issue at all service issue is an at Civil when preliminary Procedure , point. . objections raising improper the issue of filed, service are the court required is so ruling, 4 In the court misses funda- evidence, review just rely further and not jurisdictional mental constitutional and upon Note, facts of record. See Pa.R.C.P. Namely, how principles. regardless of 1028. requires Rule 1028 also (i.e., by action is commenced writ of sum- court shall all preliminary determine ob- complaint), process mons or is jections promptly and if an fact issue of is essential to the action. commencing Prop- raised, depositions consider evidence from er service is a to a court prerequisite 1028(b)(2). or otherwise. See Pa.R.C.P. personal jurisdiction acquiring over de- fendant. Cintas Corporation Lee’s Presently delayed the trial court Services, Inc., Cleaning hearing on preliminary objections, Cole’s (1997). holding A.2d 915 a hear- Without par- and issued an stating that “the ing taking from the parties, discovery depo- [shall ties conduct take fact, if, confirm in the court was unable to days day sitions] within 45 of the the order properly plaintiffs Cole was served with docketed.” The court also stated that parties acquired person- and whether it days complaint would have 15 file supplemental Moreover, jurisdiction documentation and briefs al over him. im-
party objections lodging waives defenses and er of in which defendant re- presented by preliminary objection are not sides." required type pleading. Presently, another guard security Lorraine 18. Childs is at undisputed timely prelimi- Avenue, it is Cole filed Ridge Pennsylvania, PA nary objections properly in which raised manger premises and is not the improper the issue service. located there. objections Specifically, 6. preliminary Cole’s alleged Plaintiff's service of the Com- stated, part: plaint requirements does not meet of PA.R.C.P. 402 as defendant was 17. Plaintiff indicates in its affidavit of properly it never service that served the com- served. instant *10 Childs, plaint upon manag- Preliminary Objections of "Lorraine at 4. Def.’s 5/5/00 supported the the record lack of mine whether proper synonymous service is with Presently, par- the process court’s decision. notice—a due violation. trial affidavit, produced one have not even ties Szekely 5 In v. Abilene Flour Mills inter- deposition, alone evidence via let Co., Pa.Super. claim prove their rogatory otherwise (1967), it our court was re found regarding service. the trial quired remand case where the court had decided the issue of service ¶7 sum, the court In I find that trial plaintiff taking favor of without additional preliminary improperly overruled Cole’s testimony matter, the in court or on either hearing objections holding without had by deposition. Although defendant obligated it to review additional which was agent filed two affidavits from parties regard- evidence submitted allegedly accepted plaintiff service accept ing whether Lorraine Childs could service, our not support filed one to court on behalf. See Pa.R.C.P. Cole’s party ed that neither had filed written summary The court’s dismissal Instead, interrogatories. court trial objections at the of trial was beginning found that the defendant had failed matter, prompt neither a resolution of the personal jurisdiction by establish lack Accordingly, under rules. proper nor relying principally the averment and remand I reverse the would had one of the defendant directed that objec- hearing preliminary on Cole’s for agents prepayment defendant’s obtain tions, giving parties opportu- first In plaintiff clearly from a fact of record. — evi- record with nity supplement case, our court stated: proper. of whether service was dence belief, however, that par- It is our both
ties misconceived the nature of the fact- objec-
finding process preliminary
tions. there- appropriate, We believe it
fore, to remand record to the lower with directions that allowing parties
entered reason- period present able of time in which to Pennsylvania, COMMONWEALTH by deposition, interrogatories evidence Appellee, or otherwise which will allow proper resolution of issues fact. v. at 245.
Id. BORMACK, Appellant. Matthew ¶ It in mind imperative keep that we Pennsylvania. Superior Court of that our denial prelim- court reviews the objections personal juris- inary challenging 4, 2002. Argued Dec. diction to determine whether the record 16, 2003. Filed June supports court’s fairly the trial Barr, disposition. Barr Szekely, even
(Pa.Super.2000). supra, parties had filed affidavits
where lack reject regarding the claim
support service, our jurisdiction and improper necessary it to remand
court found
matter further to deter- proceedings notes ¶ Rather, Foreign Nonprofit Appellant 9 provi- contain choice of laws Act, 6101, § Corporation designated 15 Pa.C.SA. et that statutes sion Ohio’s as con- seq., provisions, trolling. which contains similar This Court has held that 2. We note that even had there been a defect er service was effected of reinstated com- service, long 13). in this Court has held the view plaint. (Appellant’s Appellant’s Brief at appears that where a defendant and defends preliminary objections germane only are merits, on the claims of defective service are prior service to the reinstatement. Thereaf- Ass’n., waived. Webb v. United Servs. Auto. ter, Appellant’s improper claims of 508, 737, (1974). Pa.Super. 227 323 A.2d 738 became moot. Contrary assumption to the Dissent’s that conceded, ultimately prop- defective service is 499 evidentiary the particular provisions appropriate in contracts will of law “[c]hoice admissibility of v. Com- The evidence generally given effect.” Smith matter. Bank, 65, Pa.Super. monwealth Nat’l 384 addressed to the sound discre- matter (1989). 775, Appellant 'has not be tion the trial court and should of nothing to the effect that offered Ohio absent an abuse discre- overturned nonprofit requires foreign corporations tion. authority in procure certification 92, Nemetz, 710 A.2d Delpopolo v. Pennsylvania. to file suit (citations and internal (Pa.Super.1998) omitted). quotation marks Appellant argues next court his denying trial erred not does address seeking motions in limine to exclude cer of the motions limine. substance they tain witnesses Rather, the trial court’s argues might Appellant’s offer. This and suc an denial of his motions was abuse issues, ceeding all of which three four seek done discretion because it was “out alleged relief for the error in exclusion hand,” is, giving without reasons. evidence, reception are therefore 20). Oddly, Brief at (Appellant’s subject of a properly the motion new fact seems error from the imply Chernicky, trial. 439 Pa. Stewart actually ruling without delivered (1970). 266 A.2d 265-66 note that We the time deci holding the document at appellate court will trial not reverse (“The judge trial sion was made. See Id. grant court’s or denial of new trial unless she in hand when did not have motion presents gross its decision abuse of dis ruling.”) Appellant presents made the As cretion or an error of law. Harman v. argument sup authority no for and no Borah, 756 A.2d conclusions, we need port of these (2000). “An abuse of discretion exists Lakatosh, 441 them. Estate address when the trial court a judg has rendered (1995); Pa.Super. unreasonable, manifestly ment that is arbi 2119(a). would, however, We Pa.R.App.P. trary or capricious, was motivated