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CONTINENTAL BANK v. SARAH FRANK (06/28/85)

filed: June 28, 1985.

CONTINENTAL BANK, APPELLEE,
v.
SARAH FRANK, APPELLANT



Appeal From Order, Court of Common Pleas, Civil Division, Philadelphia County at No. 288 May Term, 1982

COUNSEL

Robert A. Hoffa, Philadelphia, for appellant.

Gary A. Friedberg, Philadelphia, for appellee.

Del Sole, Montemuro and Cavanaugh, JJ.

Author: Cavanaugh

[ 343 Pa. Super. Page 480]

Sarah Frank, defendant below, appeals from the Order of the Philadelphia County Court of Common Pleas dismissing her petition to open a judgment confessed against her, denying her petition to set aside a sheriff's sale and vacating a temporary stay. For the reasons set forth in this Opinion, we affirm the Order of the lower court.

On May 4, 1982, the appellee, Continental Bank, filed a Complaint in Confession against the appellant alleging the following facts: In April of 1981, Continental Bank gave a $200,000.00 commercial real estate loan to the appellant. As security for that debt, the appellant gave to the Bank a mortgage on the appellant's premises at 2007-2009 Walnut Street, Philadelphia, Pennsylvania. Appellee further alleged that Ms. Frank was in default of the mortgage payments.

Based on the allegations of the Complaint and pursuant to a confession of judgment clause in the mortgage note, the appellee confessed judgment against the appellant in the amount of $227,030.70.*fn1 On the following day, May 5, 1982, the Bank filed a praecipe for a writ of execution on the judgment. The encumbered property was thereafter scheduled for sheriff's sale on June 7, 1982.

On May 21, 1982, the appellant filed the instant petition to open and/or strike off the confessed judgment,*fn2 and at the same time requested a sixty-day stay of all proceedings so that she could take depositions to support the allegations of

[ 343 Pa. Super. Page 481]

    her petition.*fn3 The court declined to grant the requested stay.

On June 7, 1982, the date originally scheduled for the sheriff's sale of the attached property, the appellant renewed her request for a stay. The court, upon consideration of Ms. Frank's motion, postponed the sale until the next available Sheriff's Sale (July 12, 1982) conditioned on the posting of a one thousand dollar bond. Subsequently, on July 12, the property was sold for $245,000.00 to Jacques Zinman, who has been granted intervention in this action. Appellant did not move for another stay prior to the sheriff's sale of July 12.

The lower court, per the Honorable Judge Charles A. Lord, unaware that the sale had taken place (Lower Court op. at 1), entered an order on July 22, 1982, that the appellant take depositions on her petition to open by August 20, 1982, and that such depositions be filed by September 15, 1982. The court further ordered that failure to file the depositions would, for the purpose of the disposition of the petition to open, result in the ...


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