534 A.2d 518 | Pa. Super. Ct. | 1987
This is an appeal from an order of the Court of Common Pleas of Beaver County denying appellant Daniel Gillin’s petition to set aside a sheriff’s sale of commercial property which he owned. We affirm.
Appellee (bank) filed a complaint in mortgage foreclosure against appellant (Gillin) and another individual (Fath) previously owning an interest in the subject property. Appellant did not respond to the bank’s complaint. The bank then sent a notice of intention to take a default judgment to Gillin in care of Rose Johnson with whom the bank had reason to believe Gillin was living. A default judgment was then entered against both guarantors of the note and a sheriff’s sale was scheduled. Notice was again sent to Gillin at Rose Johnson’s address. At the sale, Fath’s bid was accepted. Appellant filed a petition to set aside the sale eight days later alleging lack of notice of the sale and improper service. These arguments are advanced on appeal.
Appellant asks that we set aside the sale of his property because service of the notice of sheriff’s sale was not proper under Pa.R.C.P. 3129. Appellant argues that Rose Johnson, who signed the receipt for mail service, was neither an adult member of appellant’s household nor appellant’s authorized agent for service and that, therefore, appellant did not receive notice of the sale consistent with the policy reasons expressed in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), in light of which the notice provisions of Pa.R.C.P. 3129 were amended in March 1986. Appellee asserts that the fact of notice and proper service, as established by the court’s deeming such averments admitted pursuant to Pa.R.C.P. 209(b), estops the appellant from raising these issues.
This appeal presents a mixed question of law (deemed admissions pursuant to Pa.R.C.P. 209, 42 Pa.C.S.A.) and
We find no abuse of discretion in the trial court’s determination of the merits. However, while it is certainly within the sound discretion of the trial court to decide the issues of notice and propriety of service, those issues must have been properly before the court for decision. In this case we find the action of the trial court to have been premature. This procedural error was not prejudicial to the interests of appellant and was, therefore, harmless.
The procedure relied upon by appellee in putting the issue before the court, and by the court in deciding the merits of appellant’s petition, is set forth in Pa.R.C.P. 209 which reads:
Rule 209. Duty of Petitioner to Proceed After Answer Filed
If, after the filing and service of the answer, the moving party does not within fifteen days:
(a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respon*447 dent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.
In the instant case the bank filed its answer and new matter in response to appellant’s petition on September 11, 1986. Twenty-one days later, having had no response from the appellant, the bank sought and was granted as of course a rule to show cause why the moving party should not proceed,
The trial court deemed the appellee’s facts admitted because appellant’s answer to the bank’s new matter was not
These errors in proceeding to put the matter before the trial court led to the erroneous admission of the facts of the bank’s response to the petition. Acceptance of these facts effectively foreclosed appellant’s contentions regarding notice and service, despite oral argument on the merits, and we believe the court’s consideration of these admitted facts to have been dispositive of the petition.
However, we find the errors in this case harmless for the following reasons: First, the misimpression of the correct procedure under Rule 209 seems to have been shared by both parties. Second, irregularity in the bank’s procedure is not specifically raised on appeal. Third, because of
The order of the Court of Common Pleas of Beaver County is affirmed.
. This rule was termed "Rule to Proceed” by the bank and this phrasing may be, in part, responsible for the subsequent error in procedure under Pa.R.C.P. 209. We note in passing that this misconception appears to be shared by at least one procedural rules service. 1 Goodrich-Amram 2d § 209.3.
. Appellant states that this pleading was mailed to the prothonotary on October 22, 1986. While mailing is permitted, Rule 205.1 clearly provides that such a document is not "filed" until received. The docket reflects receipt and filing on October 23, 1986.
. Pursuant to Pa.R.C.P. 1017, "pleadings” includes new matter and an answer thereto.
. See 1 Goodrich Amram 2d § 209:2, n. 96.