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PEOPLES NATIONAL BANK LEBANON v. BERNARD NOBLE AND ADA R. NOBLE (01/18/85)

filed: January 18, 1985.

THE PEOPLES NATIONAL BANK OF LEBANON
v.
BERNARD NOBLE AND ADA R. NOBLE, APPELLANTS



No. 00286 HBG 83, Appeal from the Order entered June 16, 1983 in the Court of Common Pleas of Lebanon County, Civil Division, at No. Execution 220, 1982.

COUNSEL

Philip B. Korb, Philadelphia, for appellants.

George E. Christianson, Lebanon, for appellee.

Wickersham, Johnson and Hoffman, JJ.

Author: Hoffman

[ 338 Pa. Super. Page 178]

Appellants contend that the lower court lacked jurisdiction to fix the fair market value of real property sold in an

[ 338 Pa. Super. Page 179]

    execution proceeding pursuant to the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103(a). We agree and, accordingly, vacate the lower court's order.

On October 22, 1982, appellee Bank filed a complaint in mortgage foreclosure against appellants seeking to foreclose appellants' home at 534 Hemlock Lane, Lebanon, Lebanon County. On December 14 appellee filed a praecipe to enter judgment against appellants because appellants failed to answer the complaint; judgment was entered in favor of appellee on the same day in the amount of $134,654.92. On February 17, 1983, the property was sold to appellee at a sheriff's sale, and, on February 28, the deed to the property was delivered to appellee. Appellee then filed a "Petition for Judgment Creditor to Fix Fair Market Value of Real Estate Pursuant to Deficiency Judgment Act on May 23, 1983. Following a June 16 hearing, because appellants' previous counsel failed to enter an appearance until the day of the hearing or file an answer pursuant to § 8103(c) of the Act, the court entered an order, filed June 22, determining as a matter of law that the fair market value of the property as of the date of sale was $130,000. On June 20, appellants filed a petition to strike or set aside the June 16 order, for permission to file an answer nunc pro tunc, and to schedule a new hearing for the purpose of allowing a defense. Appellee filed an answer to this petition on July 11. On July 18, however, instead of proceeding on their petition, appellants filed a notice of appeal from the June 16 order, thus depriving the lower court of jurisdiction to hear the petition. On December 20, 1983, the lower court ordered appellants to file a Pa.R.A.P. 1925(b) concise statement of the matters complained of on appeal, which appellants did on January 3, 1984.

[ 338 Pa. Super. Page 180]

On appeal, appellants contend for the first time that the lower court lacked subject matter jurisdiction to determine the fair market value of their home. We note that the question of the lower court's jurisdiction may be raised for the first time at the appellate level. Pennsylvania Page 180} Human Relations Commission v. Alto-Reste Park Cemetery Association, 453 Pa. 124, 128 n. 4, 306 A.2d 881, 884 n. 4 (1973); Marcus v. Diulus, 242 Pa. Superior Ct. 151, 157, 363 A.2d 1205, 1208 (1976); Appeal of Austerlitz, 63 Pa. Commonwealth Ct. 140, 143, 437 A.2d 804, 805 (1981).

The Deficiency Judgment Act provides that:

Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real ...


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