APPEAL FROM THE ORDER ENTERED JANUARY 5, 1987 IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY, CIVIL NO. 203 OF 1986.
Harvey W. Daniels, Monaca, for appellant.
William H. McNees, Jr., Beaver Falls, for appellee.
Cirillo, President Judge, and Johnson and Montgomery, JJ.
[ 368 Pa. Super. Page 444]
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.
[ 368 Pa. Super. Page 445]
The bank timely filed an answer and new matter to the petition and, twenty-one days later when no further responsive pleading was forthcoming from Gillin, proceeded pursuant to Pa.R.C.P. 209(b) to file a praecipe to rule Gillin to proceed. The rule was returnable on October 22, 1986. Appellant filed an answer to the bank's new matter on October 23, 1986. On November 20 the bank filed a praecipe to list the matter for argument on petition and answer, again citing Pa.R.C.P. 209(b), and requesting that all averments of fact responsive to the petition and properly pleaded in the answer and new matter be deemed admitted. Following argument, the order of the court was entered denying appellant's petition. As a basis for deeming admitted under Rule 209 the facts in the bank's response to the petition, including the averments contained in its new matter, the court's opinion recites the fact that petitioner's answer to new matter was filed one day after the rule returnable date. Key among these facts which the court deemed admitted were that petitioner had received notice both of the bank's intention to take a default judgment and of the scheduled sheriff's sale.
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
[ 368 Pa. Super. Page 446]
fact (denial of petition). This court, in reviewing the action of the trial court, must give appropriate deference to its determination, but is duty bound to modify erroneous applications of the law. 16 Standard Pennsylvania Practice 2d §§ 91:47, 91:48. Therefore, while the arguments advanced by appellant deal strictly with the merits of the trial court's determination, the application of the law, specifically Pa.R.C.P. 209, is necessarily implicated as the matter was brought to hearing and the merits determined, at least in part, in accordance with Rule 209. Appeal was taken from denial of a petition to set aside a judicial sale, putting the validity of the order at issue on appeal. The docket is of record and may be ...