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CONTINENTAL BANK v. ROBERT F. RAPP AND SYBIL RAPP (12/05/84)

filed: December 5, 1984.

CONTINENTAL BANK
v.
ROBERT F. RAPP AND SYBIL RAPP, A/K/A SYBIL SYLVANIA-RAPP, APPELLANTS



No. 01271 Philadelphia 1983, Appeal from the Order of April 13, 1983, in the Court of Common Pleas of Philadelphia County, Civil, No. 4219 February Term 1982.

COUNSEL

William J.C. O'Donnell, Philadelphia, for appellants.

Robert Cherwony, Philadelphia, for appellees.

Cirillo, Olszewski and Montgomery, JJ.

Author: Olszewski

[ 336 Pa. Super. Page 163]

In this case, a companion to Continental Bank v. Rapp, No. 1270 Philadelphia 1983, Robert and Sybil Rapp contest the lower court's refusal to strike or to open a default judgment taken in a mortgage foreclosure action. Appellants argue that the court below should have granted their motion to strike because the judgment was defective on its

[ 336 Pa. Super. Page 164]

    face. They maintain the petition to open should have been granted because they had no reason to know of the pending action, and have a meritorious defense.

The facts are these: The Rapps borrowed $200,000 from Continental Bank in 1980, and in return granted a mortgage on their property at 2023-2025 Locust Street in Philadelphia. On February 25, 1982, when the Rapps were three months in arrears, the bank filed a complaint in mortgage foreclosure. Service of the foreclosure complaint on Robert and Sybil Rapp individually was attempted by the sheriff on March 22, 1982. The returns are marked "no answer." Reproduced record at 42a, 43a.

Counsel for Continental then filed an affidavit pursuant to Local Rule 141,*fn1 stating that the whereabouts of the

[ 336 Pa. Super. Page 165]

    defendants was unknown, and requested permission for alternative service. The court granted permission to serve by ordinary mail, certified mail, and by posting. The sheriff mailed certified letters containing the complaint to Robert and Sybil Rapp individually on May 27, 1982, and posted the premises on June 16, 1982. Robert Rapp's signature appears on the return receipts for both certified letters.

Receiving no answer, counsel for the bank filed for default judgment on July 7, 1982. On August 3, counsel filed for a writ of execution against the property. On August 18, the sheriff's office received a return receipt, signed by "Susan Morrison," for the writ of execution sent to each of the Rapps, and on August 20, counsel for the Rapps moved the court for a stay of execution pending disposition of the motion to strike and petition to open judgment which counsel had filed the same day. The stay was granted, but on April 13, 1983, the court denied the motion and dismissed the petition. It stated that the judgment ...


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