Philadelphia Community Development Coalition, Inc. v. Bruce Fassett, trustee for Sierra Fassett, Appellant
No. 299 C.D. 2022
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
February 26, 2024
HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
Submitted: April 21, 2023
OPINION BY JUDGE McCULLOUGH FILED: February 26, 2024
I. FACTS AND PROCEDURAL HISTORY
A. Act 135
We have described proceedings brought under Act 135 as follows:
Act 135 authorizes a court to appoint a conservator to rehabilitate a deteriorating building, thereby incurring debt that ultimately may be the owner‘s responsibility. The conservator is responsible for bringing buildings into municipal code compliance when owners fail to do so.
Section 2 of Act 135,
68 P.S. § 1102 , authorizes the filing of a Petition for the Appointment of a Conservator with thecourt of common pleas by certain named interested parties who seek the appointment of a conservator to take possession of the property, undertake its rehabilitation[,] and, as appropriate, ultimately sell the property unless reclaimed by the owner(s).
In re Conservatorship Proceeding In Rem by Germantown Conservancy, 995 A.2d 451, 453 (Pa. Cmwlth. 2010).3
B. Proceedings Below
On December 7, 2018, PCDC filed a Petition for the Appointment of a Conservator (Conservator Petition) pursuant to Section 4(a) of Act 135,
On August 6, 2019, on PCDC‘s request, the trial court conducted a status hearing, after which it entered an order finding that, “upon agreement of the parties, . . . [Fassett] is incapable of proceeding under the prior [c]onditional [r]elief agreement” and that “[PCDC] should be appointed as [c]onservator.” (R.R. at 0053a.) The trial court accordingly appointed PCDC as conservator of the Property and granted it all rights and duties under Act 135 together with full access to, and possession of, the Property. Id. On October 1, 2019, PCDC filed a Motion for Approval of Final Plan for Abatement (Final Plan), in which it detailed, and included photographs of, the deplorable conditions of the Property, listed the work it had performed since being appointed as conservator, proposed additional work to be completed prior to final termination of the conservatorship, and itemized the estimated costs of the conservatorship. (O.R. Doc. No. 18.)
After a hearing on October 11, 2019, the trial court approved PCDC‘s Final Plan with certain modifications regarding the joists in the house. (O.R. Doc. No. 20.)5 On December 11, 2019, again after a hearing, the trial court ordered Fassett to complete the following work within three weeks: (1) remove from the Property all remaining items of personal property, including any vehicles; and (2) bring duly licensed and insured contractors to inspect the Property and provide PCDC with formal written quotes for the work that PCDC was ordered to complete. (O.R. Doc. No. 22, ¶¶ 1-2.)
In a January 7, 2020 Status Report on the Implementation of Its Final Plan, PCDC advised the trial court that Fassett had not complied with the trial court‘s December 11, 2019 order and that, upon completion of the court-approved remediation work, PCDC would file a motion to market the Property for sale. (O.R. Doc. No. 24.) On February 26, 2020, PCDC filed a Motion to Amend Final Plan and List Property for Sale (Motion to Amend), in which it noted additional structural issues that were identified during interior demolition and debris removal. (O.R. Doc. No. 25.) PCDC submitted a Supplemental Structural Evaluation Report from Bustamante Engineers detailing proposed additional remediation work and itemizing the proposed additional costs. Id. ¶ 28, Ex. “F.” PCDC also requested, pursuant to Section 9(b) of Act 135,
After a hearing on October 7, 2020, the trial court denied PCDC‘s Motion to Amend, vacated PCDC‘s previously approved Final Plan, and directed PCDC to submit an alternative final plan in accordance with Section 6(c) of Act 135,
The trial court held a hearing on the Motion to Approve New Final Plan on April 1, 2021, at which PCDC requested that the trial court approve the first alternative
On December 3, 2021, PCDC filed a “Motion to Confirm Listing Contract for the Sale of [the Property]” (Listing Motion). (R.R. at 0035a.) Therein, PCDC alleged that it had substantially completed the court-ordered work outlined in the New Final Plan, including removal of the exterior columns, installation of a new roof, and completion of structural repairs to the masonry walls. (Listing Motion, ¶¶ 56-57; R.R. at 0047a-48a.) PCDC included its total costs of conservatorship, including construction, liens, and fees, totaling $275,361.98. Id. ¶¶ 60-62; R.R. at 0048a-49a. PCDC agreed to waive its statutorily-authorized conservator fee and to reduce legal fees by approximately $23,000.00. Id. PCDC also alleged, via printout from the City‘s Department of Revenue, that the only outstanding municipal obligation for the Property was payment of 2022 taxes in an amount of $1,836.54. Id. PCDC therefore requested that the trial court approve an initial active listing of the Property for $199,900.00, even though PCDC expected that it would receive multiple bids above asking price. Id. ¶ 67; R.R. at 0049a-50a.
On January 20, 2022, Fassett filed a “Motion [ ] to Terminate Conservatorship of [PCDC] and to Sell Property” (Termination Motion), which the trial court did not immediately decide. (R.R. at 0143a.) After a hearing, the trial court granted the Listing Motion by order filed on January 26, 2022 (Listing Order). (O.R. Doc. No. 55.) In the Listing Order, the trial court approved a listing contract with Compass Pennsylvania, LLC and an initial listing price of $199,900.00. Id. It further directed PCDC to actively market the Property for at least 30 days, after which PCDC could file a motion to approve a sale in accordance with Section 6 of Act 135. Id. On February 3, 2022, Fassett filed a Motion for Reconsideration of the Listing Order, in which he alleged that granting the Listing Motion was inappropriate while his Termination Motion was pending. He also argued that the Property was in worse condition after PCDC completed its remediation work than it was at the beginning of the conservatorship (Reconsideration Motion). (R.R. at 0181a-84a.)
PCDC filed its Fee & Cost Report on March 1, 2022. (R.R. at 0196a.) On March 4, 2022, pursuant to Section 9 of Act 135, PCDC filed a “Motion to Approve Agreement of Sale and Authorize Conservator to Transfer [Property]” (Sale Motion). (R.R. at 0213a.) Therein, PCDC indicated that it had listed the Property in accordance with the Listing Order and had received multiple offers ranging from $152,000.00 to $278,000.00. (Sale Motion, ¶¶ 3, 8; R.R. at 0214a.) PCDC further indicated that the highest offer did not include a financing contingency and waived all inspections. Id. ¶ 11; R.R. at 0216a.
After hearing on March 25, 2022, the trial court entered an order (1) granting PCDC‘s Sale Motion (Sale Order); (2) denying Fassett‘s Termination Motion (Termination Order); and (3) denying Fassett‘s Reconsideration Motion (Reconsideration Order). (O.R. Doc. No. 63.) The trial court further scheduled a status hearing for May 17, 2022, and directed PCDC to file a final fee and cost petition in advance of the
[T]he [trial c]ourt finding that work approved by the [trial c]ourt[ ] . . . has been completed by [PCDC], and after the record owner of the [ ] Property and each lienholder has been provided with an opportunity to comment on the proposed sale, and with no party having presented a viable proposal to terminate this conservatorship in accordance with Section 10 of Act 135, [ ]
68 P.S. § 1110 , or sought to stay the sale in accordance with [Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.)] 1732, the Court hereby ORDERS and DECREES THAT:a) [PCDC] has been in control of the building for more than three months and the owner has not successfully petitioned to terminate the conservatorship under [S]ection 10 of Act 135, [ ]
68 P.S. [§] 1110 [;]b) The terms and conditions of the Agreement of Sale dated February 1, 2022 and fully executed on March 3, 2022, which is attached to [PCDC‘s] [Sale Motion] as Exhibit “C,” are acceptable to the [trial c]ourt;
c) The proposed [b]uyers have a reasonable likelihood of maintaining the [ ] Property;
d) [PCDC], in accordance with Section 9(c) of Act 135, [ ]
68 P.S. § 1109(c) , is hereby authorized to sell the building free and clear of all liens, claims and encumbrances and shall execute all documents necessary to transfer the [ ] Property to the proposed [b]uyers . . . ;e) All proceeds from the sale, after payment of all taxes, closing costs and broker‘s commissions shall be placed into the [Income on Lawyer Trust Account (IOLTA)] of Orphanides & Toner, LLP, pending review and approval of a distribution schedule submitted by [PCDC] pursuant to Section 10 of Act 135, [ ]
68 P.S. [§] 1110 .
(O.R. Doc. No. 64.)8
Fassett filed a Notice of Appeal on March 29, 2022, in which he purported to appeal from the trial court‘s orders denying his Termination and Reconsideration Motions and granting PCDC‘s Sale Motion. (O.R. Doc. No. 67.) Fassett did not purport to appeal directly from the trial court‘s Listing Order and did not seek a stay of the sale of the Property. The trial court ordered Fassett to file a
In the interim, on April 8, 2022, PCDC filed a Petition for Appeal Bond Pursuant to
The trial court granted the Bond Petition on May 24, 2022, and required Fassett to post bond in the amount of $415,153.99 within 10 days (Bond Order). (O.R. Doc. No. 78.) It is undisputed that Fassett did not post the required security or appeal the trial court‘s Bond Order.
II. ISSUES ON APPEAL
There are three issues presented in this appeal: (1) whether Fassett‘s appeal should be quashed due to his failure to comply with the Bond Order; (2) whether the trial court‘s Listing Order and, relatedly, Reconsideration Order are reviewable on appeal; and (3) whether the trial court erred or abused its discretion in granting the Sale Motion. Importantly, the following matters are not at issue in this appeal: (1) the appointment of PCDC as conservator; (2) the fees and costs associated with PCDC‘s conservatorship; (3) the trial court‘s Termination Order;10 or (4) the validity or scope of PCDC‘s New Final Plan.
III. DISCUSSION11
A. The Bond Order
We first address PCDC‘s argument that Fassett‘s failure to comply with the trial court‘s Bond Order requires the quashing of this appeal. Fassett argues in response that the trial court‘s Bond Order was not authorized by the Rules of Appellate
Procedure and that quashing the appeal on this ground would be contrary to the Pennsylvania Supreme Court‘s decision in PPM Atlantic Renewable v. Fayette County Zoning Hearing Board, 81 A.3d 896 (Pa. 2013).
Preliminarily, we emphasize that Fassett did not attempt to appeal the Bond Order and did not amend his Concise Statement to raise any issues related to it. Any arguments Fassett makes regarding the Bond Order‘s validity or amount therefore are technically not before us. Nevertheless, because PCDC seeks to quash this appeal on the ground that Fassett did not comply with the Bond Order, we address,
We have recognized that, in certain limited circumstances, an appellant‘s failure to post an appeal bond may justify quashing the appeal. See, e.g., Takacs v. Indian Lake Borough, Zoning Hearing Board, 18 A.3d 354, 360 (Pa. Cmwlth. 2011) (quashing land use appeal due to appellant‘s failure to post appeal bond ordered pursuant to Section 1003-A(d) of the Municipalities Planning Code (MPC)12). Here, PCDC sought the imposition of an appeal bond pursuant to
(a) The trial court or the appellate court, may at any time, upon application of any party and after notice and opportunity for hearing:
(1) require security of a party otherwise exempt from the requirement of filing security upon cause shown[.]
First, Rule 1737 is titled “Modification of Terms of Supersedeas” (emphasis in original). It is included under the subheading “Stay or Injunction in Civil Matters,” which falls under Chapter 17 (“Effect of Appeals; Supersedeas and Stays“). Thus, by its very name and placement in the Rules of Appellate Procedure, Rule 1737 is intended to govern bonds imposed in association with stays or injunctions sought and ordered in the trial court. It is not, on its face, a broadly applicable general rule authorizing the imposition of bonds in all, or even a broad class of, appeals where no stay or injunction has been entered.
Second, Rule 1737(a) authorizes the imposition of security only against a party who is “otherwise exempt from the requirement of filing security . . . .”
Thus, and contrary to PCDC‘s argument, Rule 1737 did not authorize the imposition of an appeal bond in this case. It is undisputed that Fassett did not seek a stay of the trial court‘s Sale Order and has not sought a stay in this Court. Thus, Chapter 17 of the Rules of Appellate Procedure generally does not apply to Fassett‘s appeal and do not authorize a bond requirement. Further, although
cautioned that Rule 1701(a) does not itself authorize the imposition of a bond without other statutory or rule-based authorization. In PPM, the Supreme Court opined:
To the extent the dissent may be understood to suggest that Rule 1701(b)(1) itself supplies common pleas courts with broad powers to require the posting of appeal bonds, moreover, such a concept is highly suspect. Rule 1701 primarily divests such tribunals of their ability to
proceed further in a case, and subsection (b)(1) makes an exception for certain matters that have been described as “housekeeping” in nature . . . . Appeal bonds are materially different: they are in derogation of the right to appeal . . . . That right is constitutional in its dimension. . . . In this respect, imposition of a bond is in contrast to the more conventional scenario where security is posted in exchange for a stay or supersedeas. Under the latter procedure, made expressly available per our appellate rules, see
Pa.R.A.P. 1731 ,1733 , a failure to post security has no effect on the right to appeal.. . . .
[T]o the extent this case involves any question regarding the scope of powers purportedly subsisting under appellate rule 1701(b)(1), we are not receptive to the position that that rule alone gives trial courts power or discretion to require the posting of bond as a precondition to an appeal where no other, external source of authorization for such a bond exists.
We thus conclude that, because PCDC has not identified any statutory or rule-based authority pursuant to which the trial court could impose an appeal bond, we will not quash Fassett‘s appeal on the ground that he did not comply with the Bond Order.
B. Appealability of the Reconsideration and Listing Order
Next, we consider whether Fassett‘s appeal from the Reconsideration Order is proper. The parties do not dispute, and Pennsylvania courts have long held,
that orders denying reconsideration are not reviewable on appeal. In re: Merrick‘s Estate, 247 A.2d 786, 787 (Pa. 1968); Chaney v. Fairmount Park Real Estate Corp., 155 A.3d 648, 652 (Pa. Cmwlth. 2016); Thorn v. Newman, 538 A.2d 105, 108 (Pa. Cmwlth. 1988). Nevertheless, Fassett argues that the Listing Order may be reviewed on appeal even if the Reconsideration Order may not. We disagree.
First, Fassett did not file an appeal from the Listing Order within the 30-day appeal period, see
C. Sale Order
Finally, we consider Fassett‘s argument that the trial court erred and abused its discretion in entering the Sale Order. Before we address Fassett‘s last issue, we first must once again determine whether we have jurisdiction to consider it. Although the parties appear to agree that the Sale Order is an interlocutory order appealable as of right pursuant to
v. Hafer, 177 A.3d 850, 855-56 (Pa. 2018); Fried v. Fried, 501 A.2d 211, 212 (Pa. 1985).
Although this Court has held that conservatorship proceedings under Act 135 generally are included within the category of matters referenced in Rule 311(a)(2), see Philadelphia Redevelopment Authority, 298 A.3d at 176 n.9, the rule authorizes a direct appeal from an interlocutory order “confirming, modifying, dissolving, or refusing to confirm, modify or dissolve an attachment, custodianship, receivership, or similar matter affecting the possession or control of property . . . .”
property in conservatorship where trial court certified order for immediate appeal pursuant to
Here, although the Termination Order presumably would qualify as an appealable order under Rule 311(a), Fassett has abandoned his appeal of that order. Fassett also stipulated to the appointment of PCDC as conservator, which appointment is not before the Court. In approving the sale of the Property, the trial court did not modify the conservatorship. Rather, it approved the sale pursuant to Section 9 of Act 135 which, because Fassett stipulated that he is incapable of remediating the
appeal of the Sale Order properly is before this Court pursuant to Rule 311(a)(2) or any other rule.15 Accordingly, we are without jurisdiction to consider it.16
IV. CONCLUSION
Because we conclude that Fassett‘s failure to post bond in the trial court is not fatal to his appeal, we will not quash it on that ground. However, because we nevertheless conclude that Fassett has not appealed from any other appealable orders entered in the trial court, we are without jurisdiction to consider the issues he raises in this Court. We accordingly grant PCDC‘s Motion to Quash on these alternative grounds.
PATRICIA A. McCULLOUGH, Judge
Philadelphia Community, Development Coalition, Inc. v. Bruce Fassett, trustee for Sierra Fassett, Appellant
No. 299 C.D. 2022
ORDER
AND NOW, this 26th day of February, 2024, it is ordered that the Motion to Quash Appeal filed by Appellee Philadelphia Community Development Coalition, Inc. hereby is GRANTED, for the reasons set forth in the foregoing Opinion. The instant appeal accordingly is QUASHED.
PATRICIA A. McCULLOUGH, Judge