In Re: York County Tax Claim Bureau ~ Appeal of: E. Oguejiofor and Wecan Transport, Inc.

          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: York County Tax Claim Bureau :
:
Emeka Kingsley Oguejiofor and :
Wecan Transport Incorporated and :
Konstantinos G. Sgagios :
: No. 838 C.D. 2019
Appeal of: Emeka Kingsley Oguejiofor :
and Wecan Transport Incorporated :

In Re: York County Tax Claim Bureau, :
Emeka Kingsley Oguejiofor and :
Wecan Transport Incorporated, and :
Konstantinos G. Sgagios :
: No. 1250 C.D. 2019
Appeal of: Emeka Kingsley : Submitted: August 7, 2020
Oguejiofor and Wecan Transport :
Incorporated :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Jud

          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: York County Tax Claim Bureau :
                                     :
Emeka Kingsley Oguejiofor and        :
Wecan Transport Incorporated and     :
Konstantinos G. Sgagios              :
                                     :        No. 838 C.D. 2019
Appeal of: Emeka Kingsley Oguejiofor :
and Wecan Transport Incorporated     :


In Re: York County Tax Claim Bureau,      :
Emeka Kingsley Oguejiofor and             :
Wecan Transport Incorporated, and         :
Konstantinos G. Sgagios                   :
                                          :   No. 1250 C.D. 2019
Appeal of: Emeka Kingsley                 :   Submitted: August 7, 2020
Oguejiofor and Wecan Transport            :
Incorporated                              :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                FILED: December 31, 2020

             In   these   consolidated    appeals,   Emeka     Kingsley    Oguejiofor
(Oguejiofor) and Wecan Transport, Inc. (Wecan Transport) (collectively, Objectors)
appeal two orders of the Court of Common Pleas of York County (trial court). In
the first order, the trial court denied Oguejiofor’s post-trial motion for a hearing to
present additional evidence. In the second order, the trial court dissolved an
injunction issued while the post-trial motion was pending. Because Objectors have
waived all issues on appeal, we affirm the trial court.
                 On September 27, 2018, the York County Tax Claim Bureau sold a
property at 964 Old Rossville Road, Lewisberry, Pennsylvania 17339, to
Konstantinos Sgagios (Purchaser) because of a 2016 tax delinquency. On November
18, 2018, Oguejiofor petitioned to set aside the upset tax sale. Oguejiofor asserted
that he was the equitable owner of the property and entitled to notice of the tax sale
under the Real Estate Tax Sale Law.1 However, the Tax Claim Bureau did not serve
him. Purchaser answered Oguejiofor’s petition and stated that the Tax Claim Bureau
served the record owner of the property, Aumiller’s West, Inc. (Aumiller’s West),
thereby complying with the statutory notice requirements. On April 25, 2019, the
trial court held a hearing on Oguejiofor’s petition.
                 The trial court found that Wecan Transport, not Oguejiofor, was the
equitable owner of the property. The hearing involved the following exchange:

                 THE COURT: [Oguejiofor is] not the equitable owner. Wecan
                 Transport is the equitable owner. If this installment sales
                 agreement means anything, that’s a corporation and that’s
                 different than an individual.

                 ATTORNEY [for Oguejiofor]: Well, if I may, Your Honor, he is
                 Wecan Transport.

                 THE COURT: I don’t care. If you are going to incorporate, you
                 take the benefits of incorporation and you take the obligations of
                 incorporation. He’s not the equitable owner. . . . Your client as
                 named in the petition has no standing.

                 ATTORNEY [for Oguejiofor]: Your Honor, if I may, and this
                 explains the untimely filing of the instrument, when I met with
                 [Oguejiofor], he indicated that he was the owner of the property.
                 I didn’t receive the actual original of [the installment sales
                 agreement] until February. This [matter] was filed back in, I
                 believe . . . may be the first week in November, but had I known

1
    Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101 - 5860.803.
                                                 2
            that [Wecan Transport] was the named party in the installment
            sales agreement, I would have moved to amend.

            THE COURT: It’s not your fault. I mean, your client has to know
            the distinctions when he’s operating an incorporated business.
            [Oguejiofor] has to know that he is not the business, he is not the
            incorporated business.

                                              ***

            I don’t even know what relationship [Oguejiofor] has to the
            incorporated business, if he’s a shareholder, if he’s an officer,
            director or what. But he is not an equitable owner, at least
            according to the documents that have been presented at this
            point.

            ATTORNEY [for Oguejiofor]: But, Your Honor, I believe that
            that’s through no fault of [Oguejiofor]. I don’t believe that was
            done in bad faith, Judge. I believe we had a copy of the original
            [installment sales agreement], which is what we were attempting
            to obtain for several months until we were actually getting a hold
            of the original to file, we attempted to file one, I would say it was
            sometime after 2019, but [] wouldn’t accept a photocopy.

Notes of Testimony (N.T.), 4/25/2019, at 9-10.
            The installment sales agreement between Aumiller’s West and Wecan
Transport was executed on January 17, 2014, and it was recorded on February 6,
2019, after the tax sale. The agreement provided that Wecan Transport was to
purchase the property from Aumiller’s West and to pay all real estate taxes levied
on the property. Accordingly, the trial court allowed Wecan Transport to be
substituted for Aumiller’s West.
            Nevertheless, the trial court found that the Tax Claim Bureau had
complied with the notice requirements of the Real Estate Tax Sale Law by posting a
notice on the property and sending notices of the sale by certified mail and First-


                                          3
Class Mail to Aumiller’s West, the record owner. Based on these findings, the trial
court overruled Objectors’ objections to the tax sale.
               On May 8, 2019, Oguejiofor filed a post-trial motion, requesting a
hearing to present additional testimony and evidence on the issue of notice. On May
10, 2019, the trial court scheduled argument on the motion.2 On May 17, 2019,
Purchaser filed an answer and new matter, requesting a continuance of the hearing.
Meanwhile, on May 24, 2019, Oguejiofor filed a petition for emergency injunctive
relief to enjoin Adams Electric from disconnecting electricity service to the property
while the post-trial motion was pending. The trial court granted Oguejiofor’s request
for injunctive relief and thereafter scheduled a hearing on Oguejiofor’s post-trial
motion.
               At the hearing on the post-trial motion, Oguejiofor argued that he had
discovered new evidence relevant to his objections to the tax sale. Purchaser
countered that Oguejiofor should not be allowed a “second bite” at the apple. N.T.,
5/29/2019, at 15. On May 31, 2019, in two separate orders, the trial court denied
Oguejiofor’s post-trial motion and dissolved the injunction.
               With respect to the post-trial motion, the trial court explained as
follows:

               Essentially, the post[-]trial motion[] ask[s] us to reopen the
               record in the case and take additional evidence and testimony that
               was not presented during the course of the April hearing. We
               decline to do that at this point. Everyone had a day in court.
               They presented the evidence and testimony which they had
               available and, which we might add, everyone had plenty of time

2
 Post-trial motions are governed by Rule 227.1 of the Pennsylvania Rules of Civil Procedure. PA.
R.C.P. No. 227.1. Although Rule 227.1(g) expressly provides that motions for post-trial relief are
not permitted in statutory appeals, the trial court may entertain such filings in its discretion. See
Appeal of Borough of Churchill, 

575 A.2d 550

, 553-54 (Pa. 1990).
                                                 4
             to prepare for, and the Court made a decision based on the
             evidence that was before it.

             We have to agree with [Purchaser] that the purpose of [a] post[-
             ]trial motion[] is not to reopen the evidence and have a second
             bite at the apple, so to speak. Even if we were able to do so and
             the proffer of Wecan Transport was accepted by the Court and
             supported by evidence, we fail to see how this would overcome
             the findings that we made at our April hearing, given the fact that
             we found specifically that there was proper notice posted on the
             business premises operated by Wecan Transport and []
             Oguejiofor. It was on that basis, as well as the others stated on
             the record, that we held against him.

Trial Court’s Order Denying Post-Trial Motion, 5/31/2019, at 2-3. Accordingly, the
Court denied Oguejiofor’s post-trial motion.
             With respect to the dissolution of the injunction, the trial court
explained as follows:

             Since we had previously held against [] Oguejiofor after our
             hearing which we conducted on the merits in April and we have
             today again denied him relief on post[-]trial motions, we
             conclude that [Oguejiofor] cannot meet the requirements of
             issuing a preliminary injunction since he cannot demonstrate a
             reasonable likelihood of success on the merits.

Trial Court’s Order Dissolving Preliminary Injunction, 5/31/2019, at 2.
Accordingly, the trial court dissolved the injunction of May 24, 2019.
             On June 3, 2019, Objectors appealed the trial court’s order dissolving
the preliminary injunction to the Superior Court, which transferred the appeal to this
Court. On June 6, 2019, the trial court directed Objectors to file a statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b). The trial court’s order stated that, “[a] failure to comply with this direction
may be considered by the [Commonwealth] Court as a waiver of all objections to

                                           5
the [o]rder ... complained of.” See Trial Court’s Order Directing Objectors to File
Rule 1925(b) Statement, 6/6/2019. Objectors did not file a Rule 1925(b) Statement
as ordered by the trial court.
               On July 1, 2019, Objectors filed a second appeal of the trial court’s
order denying their post-trial motion. On July 3, 2019, the trial court directed
Objectors to file a Rule 1925(b) Statement within 21 days and advised that “failure
to comply with this direction may be considered by the [Commonwealth] Court as a
waiver of all objections to the [o]rder … complained of.” See Trial Court’s Order
Directing Objectors to File Rule 1925(b) Statement, 7/3/2019. Objectors did not file
a Rule 1925(b) Statement as ordered by the trial court.
               On August 2, 2019, the trial court issued a Rule 1925(a)3 opinion
explaining the reasons for its April 29, 2019, and May 31, 2019, orders as follows:

               The reasons for our decision resulting in the May 31, 2019 order
               denying [the] post-trial motion[] [is] contained in the order filed
               May 31, 2019. Additional support can be found in the original
               record, Transcript of Proceedings of May 29, 2019[,] at pages 5-
               6, and page 21.

               The reasons for our decision resulting in the underlying order
               from the April 25, 2019[,] proceeding, filed April 29, 2019, if
               [Objectors] intend[] to argue that order and the Court accepts that
               issue, can likely be found in the original record, the Transcript of



3
 Rule 1925(a)(1) states, in relevant part:
       General rule. Except as otherwise prescribed by this rule, upon receipt of the notice
       of appeal, the judge who entered the order giving rise to the notice of appeal, if the
       reasons for the order do not already appear of record, shall within the period set
       forth in Pa. R.A.P. 1931(a)(1) file of record at least a brief opinion of the reasons
       for the order, or for the rulings or other errors complained of, or shall specify in
       writing the place in the record where such reasons may be found….
PA. R.A.P. 1925(a)(1).
                                                 6
              Proceedings of April 25, 2019 [] (unofficial) at approximately
              pages 55 through 57.

Trial Court’s Rule 1925(a) Opinion, 8/2/2019, at 5-6. This Court consolidated the
two appeals and, on December 17, 2019, granted Objectors’ request for an injunction
to enjoin Purchaser from interfering with Objectors’ day to-day business operations
on the property pending disposition of this matter.
              On appeal,4 Objectors raise two issues. First, they assert that the trial
court erred in holding that they were not entitled to notice of the sale from the Tax
Claim Bureau. Second, they contend that the trial court erred by dissolving the
injunction because, inter alia, they were likely to prevail on the merits given the Tax
Claim Bureau’s failure to provide the notices required by the Real Estate Tax Sale
Law.
              Purchaser5 counters that the trial court found that Wecan Transport was
the equitable owner.         However, the Tax Claim Bureau satisfied the notice
requirements of the Real Estate Tax Sale Law by mailing certified and First-Class
Mail notices to Aumiller’s West, which was the recorded owner of the property.
Purchaser contends that because Objectors did not file Rule 1925(b) Statements as
ordered by the trial court, they have waived all issues on appeal.
              We begin with Purchaser’s argument that Objectors have waived all
issues on appeal because they did not file Rule 1925(b) Statements. Pennsylvania
Rule of Appellate Procedure 1925(b) states, in relevant part, as follows:



4
 Our review determines whether the trial court committed an error of law, abused its discretion,
or rendered a decision without supporting evidence. Jenkins v. Fayette County Tax Claim Bureau,

176 A.3d 1038

, 1040 n.2 (Pa. Cmwlth. 2018).
5
 The Tax Claim Bureau adopted, by reference, the arguments set forth in Purchaser’s brief. See
Tax Claim Bureau’s Brief at 3.
                                               7
            (b) If the judge entering the order giving rise to the notice of
            appeal ... desires clarification of the errors complained of on
            appeal, the judge may enter an order directing the appellant to
            file of record in the trial court and serve on the judge a concise
            statement of the errors complained of on appeal (“Statement”).

                                             ***

                  (2) Time for filing and service.

            (i) The judge shall allow the appellant at least 21 days from the
            date of the order’s entry on the docket for the filing and service
            of the Statement. Upon application of the appellant and for good
            cause shown, the judge may enlarge the time period initially
            specified or permit an amended or supplemental Statement to be
            filed. Good cause includes, but is not limited to, delay in the
            production of a transcript necessary to develop the Statement so
            long as the delay is not attributable to a lack of diligence in
            ordering or paying for such transcript by the party or counsel on
            appeal. In extraordinary circumstances, the judge may allow for
            the filing of a Statement or amended or supplemental Statement
            nunc pro tunc.

PA. R.A.P. 1925(b).
            Where a trial court orders the appellant to file a Rule 1925(b) Statement,
the appellant “must comply in a timely manner.” In re Clinton County Tax Claims
Bureau Consolidated Return for Sale of September 24, 2012, 

109 A.3d 331

, 334 (Pa.
Cmwlth. 2015) (citing Hess v. Fox Rothschild, LLP, 

925 A.2d 798

, 803 (Pa. Super.
2007)) (emphasis in original). Failure to comply with the trial court’s order will
result in automatic waiver of all issues raised on appeal. In Commonwealth v.
Castillo, 

888 A.2d 775

, 780 (Pa. 2005), our Supreme Court held as follows:

            [W]e … re-affirm the bright-line rule first set forth in
            [Commonwealth v. Lord, 

719 A.2d 306

(Pa. 1998),] that “in order
            to preserve their claims for appellate review, [a]ppellants must
            comply whenever the trial court orders them to file a [Rule

                                         8
              1925(b) Statement]. Any issues not raised in a [Rule 1925(b)
              Statement] will be deemed waived.”

Notably, waiver is not cured where the trial court chooses to file a Rule 1925(a)
opinion in spite of the appellant’s failure to file a Rule 1925(b) Statement. 

Jenkins, 176 A.3d at 1042

.
              The trial court denied Objectors’ application for permission to file a late
Rule 1925(b) Statement. Objectors did not make this request until after the trial
court issued its Rule 1925(a) opinion on August 2, 2019, and after Objectors’ appeal
was before this Court. As explained by the trial court in its order denying Objectors’
request,

              [s]ince there is no practical way for this Court to grant
              [Objectors] the required time within which to file a [Rule 1925(b)
              Statement] and for this Court to respond to any filing with
              another Rule 1925(a) [S]tatement by the briefing deadline set by
              the Commonwealth Court, we see no reason at this late date to
              grant permission to file a statement.

Trial Court’s Order Denying Application for Permission to File Rule 1925(b)
Statement, 11/14/2019, at 3 (emphasis in original).
              The Rule 1925(b) Statement gives the trial judge the opportunity to
address the issues which the appellant plans to raise on appeal and is, therefore, a
“crucial component of the appellate process.” 

Lord, 719 A.2d at 308

. Objectors did
not respond to the trial court’s June 6 and July 3, 2019, orders directing them to file
a Rule 1925(b) Statement. Nevertheless, the trial court opted to file a Rule 1925(a)
opinion. In doing so, the trial court had to speculate on the issues Objectors would
raise on appeal. See Trial Court’s Rule 1925(a) Opinion at 6 (indicating that “if
[Objectors] intend[] to argue [the April 29, 2019] order and the Court accepts that
issue...”).

                                            9
             Here, Objectors did not seek permission to file a late Rule 1925(b)
Statement until shortly before their brief was due in this Court and after they had
received several extensions to file their brief. The record is devoid of any evidence
showing that Objectors had “good cause” let alone “extraordinary circumstances”
that would warrant the filing of an untimely Rule 1925(b) Statement. The trial court
held that Objectors did not give the trial court any basis upon which it could grant
such relief. See PA. R.A.P. 1925(b)(2) (noting that good cause does not include “a
lack of diligence”). We discern no error in the trial court’s holding.
             Because Objectors failed to file a Rule 1925(b) Statement and their
request for additional time to file this statement was made too late, they have waived
all issues on appeal.
             For the foregoing reasons, we affirm the orders of the trial court.


                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                         10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: York County Tax Claim Bureau :
                                     :
Emeka Kingsley Oguejiofor and        :
Wecan Transport Incorporated and     :
Konstantinos G. Sgagios              :
                                     :      No. 838 C.D. 2019
Appeal of: Emeka Kingsley Oguejiofor :
and Wecan Transport Incorporated     :


In Re: York County Tax Claim Bureau,    :
Emeka Kingsley Oguejiofor and           :
Wecan Transport Incorporated, and       :
Konstantinos G. Sgagios                 :
                                        :   No. 1250 C.D. 2019
Appeal of: Emeka Kingsley               :
Oguejiofor and Wecan Transport          :
Incorporated                            :


                                   ORDER

            AND NOW, this 31st day of December, 2020, the orders of the York
County Court of Common Pleas dated May 31, 2019 are AFFIRMED.                  The
injunction issued by this Court by order dated December 17, 2019, while this matter
was pending is hereby dissolved.
                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge

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