Northampton National Bank v. Piscanio
Northampton National Bank v. Piscanio
Opinion of the Court
Appellants have taken this appeal pro se from two orders of the lower court in a mortgage foreclosure action. The first is the order dated November 17, 1976 granting a continuance of the sheriff’s sale scheduled for November 23, 1976. The second is the order of December 21, 1976 dismissing appellants’ request for admissions in support of their rule to show cause why a default judgment obtained by appellee should not be opened or stricken. For the reasons stated below, we reverse and remand for a hearing on the merits of appellants’ petition to open and/or strike the default judgment.
The facts of this case are extremely convoluted. Appellee, Northampton National Bank, filed a complaint in mortgage foreclosure against appellants on May 20, 1976. Appellants, proceeding pro se, failed to file an answer, and twenty-seven days after the complaint was filed, on June 16, 1976, appellee obtained a default judgment. On August 5, 1976, a writ of execution was issued and appellants’ residence was levied upon. Shortly thereafter, on September 3, 1976, Appellant Michael Piscanio petitioned the lower court for a rule to show cause why the default judgment should not be opened
The lower court caused the rule to be issued and entered the following order:
Now, this 3rd day of September, 1976, it is ordered that a rule be taken upon the plaintiff to show cause why judgment in the within matter should not be opened and the defendant let into a defense. It is further directed that all proceedings be stayed, meanwhile, conditioned upon the defendants posting proper bond or other security with the Prothonotary. Hearing is hereby directed to be held on Tuesday, September 7, 1976 at 9:30 A.M. in this courtroom to determine the amount of such security, (emphasis added.)
On September 7, 1976, the amount of the bond was fixed at $2,500 and was required to be filed within five days.
The disposition of this case hinges upon the interpretation to be accorded the September 3rd order. Appellants contend that the order should be read in the disjunctive and that the granting of the rule to show cause was independent of the concurrent stay of execution, which was conditioned upon the posting of the bond. Appellee asserts, to the contrary, that appellants’ failure to post the required bond on or before September 12, 1976 caused both the rule to show cause and the stay of execution to be dissolved. Appellee further contends that it therefore had no obligation to file an answer to appellants’ rule and that the lower court acted properly when, on December 21, 1976, it dismissed appellants’ request for admissions.
Whether or not it was proper in this case to condition a defendant’s right to have a default judgment stricken or opened upon the posting of a bond,
The lower court erred in holding after the fact that the rule to show cause was dissolved by appellants’ failure to post bond on or before September 12, 1976. The court’s order of September 3rd did not clearly condition the continuation of the rule to show cause upon the posting of a bond. The merits of appellants’ motion to strike or open the default judgment should have been addressed. We therefore remand for a hearing on the merits of the petition to open and/or strike the default judgment.
Appellants have also appealed from the lower court’s order of November 17,1976, which continued until December 28, 1976 the sheriff’s sale scheduled for November 23, 1976.
We do not, however, address this issue since the order granting the continuance was interlocutory in nature. Although appellants exceptions to the sheriff’s sale included a challenge to the granting of the continuance, no appeal from the lower court’s order of June 1, 1977 dismissing the exceptions has been filed. We therefore deem this issue to be waived.
Reversed and remanded for proceedings consistent with this opinion.
. The rule is phrased in mandatory terms:
Copies of the writ or complaint to be served by the sheriff shall be attested by the prothonotary or sheriff or certified by the plaintiff to be true copies.
Pa.R.C.P. 1008 (emphasis added).
. Rule 4014 provides:
(a) A party may serve upon an adverse party a written request for the admission by him, for the purpose of the pending action only, of the truth of any relevant matters of fact set forth in the request or of the genuineness of any writing, document or record, a copy of which is attached to the request, or incorporated therein by reference as provided by Rule 1019(g), or the truth of any fact relating to its authenticity, correctness, execution, delivery, mailing or receipt.
(b) A matter of which an admission is requested is admitted unless the adverse party within ten (10) days after service of the request serves upon the requesting party.
(1) a sworn denial or explanation why he cannot admit or deny the matter, or
(2) objections to the relevance or competence of the matter or the scope of the request
. Compare Pittsburgh v. Charles Zubik & Sons, Inc., 404 Pa. 219, 171 A.2d 776 (1961), in which our Supreme Court tacitly approved a lower court’s order granting a rule to show cause why a confessed judgment should not be stricken and requiring a bond to be posted as security for costs incurred by the respondent in the course of the proceeding, in the event that the rule should be discharged after a hearing on the merits. Id., 404 Pa. at 223-24, 171 A.2d at 777-78.
. The court treated appellants’ petition as merely a petition to open the default judgment. In reality it sought to have the judgment either stricken or opened and alleged facts in support of both actions.
. In light of the confusion concerning the effect to be accorded the lower court’s order of September 3, 1976, we do not believe that it would be equitable to hold appellee to the averments of fact contained in appellants’ petition. Cf., Heilner v. Falls Coal Co., 9 Pa.Super. 78, 83 (1898). Appellee’s failure to answer the petition to open and/or strike may well have been due to its good faith belief that the rule to show cause had been dissolved by appellants’ failure to post bond.
. The sheriff’s sale had originally been scheduled for September, 1976, but was stayed pending disposition of appellants’ motions to strike and/or open the default judgment.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.