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[U] Wachovia Mortgage, FSB v. Estate of Battistini

Superior Court of Pennsylvania

February 25, 2014

WACHOVIA MORTGAGE, FSB F/K/A WORLD SAVINGS BANK, FSB, Appellee
v.
ESTATE OF DELMA D. BATTISTINI, DECEASED AND ALL KNOWN AND UNKNOWN HEIRS, SUCCESSORS AND ASSIGNS, REPRESTATIVES, DEVISEES AND ALL PERSONS, FIRMS OR ASSOCIATIONS CLAIMING RIGHT, TITLE OR INTEREST FROM AND UNDER DELMA BATTISTINI, DECEASED, Appellees APPEAL OF: MICHAEL DAULERIO, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated May 8, 2013 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2009-33747

BEFORE: BOWES, OTT, and JENKINS, JJ.

MEMORANDUM

BOWES, J.

Michael Daulerio, who is neither a licensed attorney nor a party to this action, purports to appeal from a May 8, 2013 order denying his petition to set aside a sheriff's sale. We dismiss this appeal.

This action in mortgage foreclosure was instituted as to property located at 7028 Lafayette Avenue, Fort Washington (the "property") and against the estate of the deceased mortgagor Delma D. Battistini, [1] her heirs, successors, assigns, representatives, devisees, and all persons, firms, or associations claiming right, title or interest from and under her. After obtaining service of the complaint personally upon Appellant at the property, the mortgage creditor obtained a default judgment in excess of $700, 000. The matter proceeded to a sheriff's sale on February 29, 2012. The sheriff's deed was recorded on April 9, 2012. On September 13, 2012, Appellant filed a pro se petition to strike the judgment. Therein, Appellant represented that he was "married to Glenda Daulerio, daughter of the deceased Delma D. Battistini" and that he was proceeding "Pro Se." Petition to Strike Judgment, 9/13/12, at 1. That petition established that the estate had intestate heirs: Mrs. Battistini's husband and three children. It averred that Appellee improperly obtained the ability to serve notice of the complaint and all subsequent notices by mailing those documents by certified and regular first class mail to the property and by posting the property.

At the hearing on the petition, Appellant claimed that he had the authority to represent his father-in-law and wife, intestate heirs of Mrs. Battistini, in that each had executed a power of attorney allowing him to do so. On May 8, 2013, the petition to strike the judgment was dismissed as untimely in that it was filed after delivery of the sheriff's deed, and the court also noted that Appellant lacked standing since, based on his admissions, he was not an heir to Mrs. Battistini. Appellant filed the present appeal from that order.

Appellant is not a party to this action as he is not an heir, successor, assign, representative or devisee of the estate of Delma D. Battistini. Likewise, he is not a person claiming right, title or interest from and under her.

Since Appellant is not a licensed attorney, he cannot represent the estate's intestate heirs, whom he purported to represent during the trial court proceedings. Non-lawyers may not represent parties before the courts, and a power of attorney does not accord a layperson the authority to represent other named parties in a legal proceeding. Kohlman v. Western Pennsylvania Hospital, 652 A.2d 849 (Pa.Super. 1994); Commonwealth v. Carroll, 517 A.2d 980, 981 (Pa.Super. 1986) ("a non-lawyer cannot represent others in court"); see also Osei-Afriyie by Osei-Afriyie v. Medical College of Pennsylvania, 937 F.2d 876 (3rd Cir. 1991) (father, who was not a licensed attorney, could not represent his children for purposes of pursuing malpractice action). The practice of law by a layperson is criminalized. See 42 Pa.C.S. § 2524 ("[A]ny person . . . who within this Commonwealth shall practice law . . . commits a misdemeanor of the third degree upon a first violation.").

Since Appellant is not authorized to practice law, we hold that the legal pleadings filed by Appellant in this litigation have no legal effect and that he cannot appear before this Court at oral argument.

Moreover, a "petition to set aside a sheriffs sale may only be granted when the petition is filed before the sheriffs delivery of the deed." Mortgage Electronic Registration Systems, Inc. v. Ralich, 982 A.2d 77, 79 (Pa.Super. 2009) (citation omitted). "There is an exception to this time bar, however. A sheriffs sale may be set aside after delivery of the sheriffs deed based on fraud or lack of authority to make the sale." Id . at 80. In this case, the petition was filed months after delivery of the sheriff's deed and the challenge to the validity of the proceeding did not involve fraud or lack of authority to make the sale. Accordingly, the trial court correctly dismissed the petition to open the sheriff's sale.

Appeal dismissed.

Judgment Entered.


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