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NORTHAMPTON NATIONAL BANK v. MICHAEL PISCANIO AND MARYANN PISCANIO (07/12/78)

decided: July 12, 1978.

NORTHAMPTON NATIONAL BANK, APPELLEE,
v.
MICHAEL PISCANIO AND MARYANN PISCANIO, HUSBAND AND WIFE, APPELLANTS



Nos. 672 and 724 October Term, 1977, Appeals from the Orders of the Court of Common Pleas of Lehigh County, Civil Division, dated November 17, 1976 and December 21, 1976, at No. 431 June Term, 1976.

COUNSEL

Michael Piscanio, in propria persona.

Martin D. Cohen, Allentown, for appellee.

Richard Brent Somach, Solicitor, Allentown, for Sheriff of Lehigh County.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 255 Pa. Super. Page 552]

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

[ 255 Pa. Super. Page 553]

    or stricken. In support of the petition to strike, appellants alleged that the copy of the complaint served upon them was not certified as a true and correct copy of the original as required by Pa.R.C.P. 1008.*fn1 Appellants also alleged, in support of their petition to open, several violations of federal disclosure laws which, in light of our disposition, we need not address.

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, ...


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