J-S01033-20

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JP MORGAN CHASE BANK N.A.,

Appellee

v.

GREGORY PALUMBO AND LISA 

PALUMBO,

Appellants

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

No. 2413 EDA 2019

Appeal from the Order Entered July 16, 2019

in the Court of Common Pleas of Delaware County 

Civil Division at No(s): CV-2012-001389

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 25, 2020

Gregory1 and Lisa Palumbo (Appellants) appeal pro se from the order

entered on July 16, 2019, which denied Appellants’ petition to set aside a 

sheriff’s mortgage foreclosure sale and execution. We affirm.

We provide the following background. “On February 16, 2001, 

[Appellants] executed a mortgage and a note with [Appellee] JP Morgan 

Chase Bank, NA (the Bank).” Trial Court Opinion, 10/2/2019, at 1-2. 

“[Appellants] defaulted on the mortgage in August 2010.” Id. at 2. On 

February 12, 2012, the Bank filed a complaint in mortgage foreclosure 

against Appellants. Summary judgment was granted in the Bank’s favor on 

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1 Gregory Palumbo is an attorney whose license was suspended temporarily

on August 9, 2018.
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December 15, 2015,2 and Appellants filed a notice of appeal to this Court. 

This Court affirmed the judgment entered in the trial court, and our 

Supreme Court denied Appellants’ petition for allowance of appeal. JP 

Morgan Chase Bank N.A. v. Palumbo, 158 A.3d 178 (Pa. Super. 2016) 

(unpublished memorandum), appeal denied, 168 A.3d 1291 (Pa. 2017).

 Subsequently, the Bank began the process of taking the property at 

issue to sheriff’s sale. On February 23, 2017, the Bank praeciped for a writ 

of execution in this case. That writ was sent via regular mail to, inter alia, 

Appellants. The sheriff’s sale was scheduled for June 16, 2017. “On June 15, 

2017, [Appellants] filed via [their attorney], Michael P. Forbes, Esquire, an 

Emergency Petition to Postpone the Sheriff’s Sale.” Trial Court Opinion, 

10/2/2019, at 2. “In addition, Attorney Forbes appeared at the June 16, 

2017 hearing on this [p]etition and argued on [Appellants’] behalf before the 

[t]rial [c]ourt.” Id. At that hearing, Attorney Forbes argued in favor of 

postponement3 and also contended that there was an issue with service. It 

was his position that the writ had to be served by the sheriff, and Appellants 

had only received it via regular mail. See generally N.T., 6/16/2017. The 

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2 “In an action for mortgage foreclosure, the entry of summary judgment is 

proper if the mortgagors admit that the mortgage is in default, that they 

have failed to pay interest on the obligation, and that the recorded mortgage 

is in the specified amount.” Cunningham v. McWilliams, 714 A.2d 1054, 

1057 (Pa. Super. 1998).

3 According to Attorney Forbes, Gregory Palumbo’s father was willing to 

liquidate assets in order to satisfy the arrearages on the mortgage, but 

needed an additional 120 days to do that. N.T., 6/16/2017, at 3-4.
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trial court granted the continuance, and Appellants then filed for 

bankruptcy.4 The bankruptcy was dismissed on May 24, 2018, and the 

sheriff’s sale was rescheduled for October 19, 2018. In preparation, the 

Bank praeciped for a writ of execution on June 29, 2018. That writ was sent 

via regular mail to Appellants in the care of Attorney Forbes as attorney for 

Appellants. After two more postponements, the sheriff’s sale finally occurred 

on January 18, 2019. 

On February 17, 2019, Appellants filed a petition to set aside the 

sheriff’s sale. According to Appellants, who were then represented by 

Attorney John Hickey, the writ was served improperly on Attorney Forbes 

who was no longer counsel of record. It was Appellants’ position that the 

writ had to be served on Appellants. Thus, Appellants argued that the 

sheriff’s sale must be set aside. N.T., 5/30/2019, at 4-5. The Bank 

contended that because Attorney Forbes filed a petition, argued on behalf of 

Appellants in 2017, and never withdrew his appearance, service on Attorney 

Forbes was proper. Id. at 8.

On July 16, 2019, the trial court denied Appellants’ petition to set 

aside the sheriff’s sale. Appellants filed a motion for reconsideration, which 

was denied. Appellants timely filed a notice of appeal, and both Appellants 

and the trial court complied with Pa.R.A.P. 1925.

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4 The trial court did not rule on the service-related issue.
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On appeal, Appellants contend the trial court abused its discretion by 

denying the petition to set aside the sheriff’s sale. Appellants argue the 

sheriff’s sale should be set aside because the sheriff’s returns of service for 

the writ do not appear in the record as they were never filed with the 

Prothonotary.

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 See Appellants’ Brief at 15. We consider this issue mindful of 

the following.

A petition to set aside a sheriff’s sale is grounded in 

equitable principles[.] The burden of establishing grounds for 

relief rests with the petitioner.

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The decision to set aside a sheriff’s sale is within the sound 

discretion of the trial court, and we shall not reverse its decision 

on appeal absent a clear abuse of discretion. An abuse of 

discretion is not merely an error of judgment, but if in reaching a 

conclusion the law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable, or [the judgment is] the 

result of partiality, prejudice, bias or ill-will, as shown by the 

evidence of record, discretion is abused.

Wells Fargo Bank N.A. v. Zumar, 205 A.3d 1241, 1244-45 (Pa. Super. 

2019) (internal citations and quotation marks omitted).

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5 We first consider whether this issue was waived, as “[i]ssues not raised in 

the lower court are waived and cannot be raised for the first time on 

appeal.” Pa.R.A.P. 302(a). The primary issue at the hearing was whether 

service on Attorney Forbes was proper. N.T., 5/30/2019, at 9-12. The issue 

of the sheriff’s returns was addressed briefly, when the trial court requested 

that the Bank produce the returns, and the Bank could not locate them. Id.

at 8-9. Nevertheless, Appellants preserved the issue regarding the returns

of service in their petition to set aside sheriff’s sale and in their Pa.R.A.P. 

1925(b) statement, and we consider this issue infra. 
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In Pennsylvania, mortgage foreclosures are governed by Pa.R.C.P. 

3180-3183. A judgment in mortgage foreclosure “shall be enforced by a writ 

of execution.” Pa.R.C.P. 3180. Issuance of the writ of execution shall be in 

conformance with Pa.R.C.P. 3103(a) (providing that “[e]xecution shall be 

commenced by filing a praecipe for a writ of execution with the 

prothonotary”) and (e) (requiring the prothonotary to “transmit [the writ] to 

the sheriff to whom it is directed or upon plaintiff’s request deliver it to the 

plaintiff or plaintiff’s representative for transmittal”) and 3015. See

Pa.R.C.P. 3181(a)(1). Furthermore, sheriff’s returns of service are governed 

by Pa.R.C.P. 3139(a)(1), (c), and (d), and do not require a return to be filed 

until after the execution proceedings.

6 See Pa.R.C.P. 3181(a)(12). 

“Service of the writ shall be made by the sheriff.”7 Pa.R.C.P. 3182. The 

note to that rule clarifies that “[s]ervice of the writ upon the mortgagor or 

real owner is not required but notice of the sale is required by Rule 3129.1.” 

Pa.R.C.P. 3182 (Note) (emphasis added). Rule 3129.1 provides that no sale 

shall take place until the plaintiff files “with the sheriff the affidavit required 

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6 Based upon this rule, Appellants’ contention that the sale should be set 

aside because no return was filed prior to execution is without merit. 

Appellants’ Brief at 15 (arguing the sheriff’s failure to file a return rendered 

any notice of sale defective).

7 Notably, this rule does not require service of the writ in conformity with 

Pa.R.C.P. 3108. Thus, Appellants’ argument that this sale should be set 

aside for violation of that rule is without merit. See Appellants’ Brief at 14-

15 (arguing Pennsylvania law requires service of the writ in a mortgage 

foreclosure action pursuant to Pa.R.C.P. 3108).
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by subdivision (b) and the notice required by Rule 3129.2 has been served.” 

Pa.R.C.P. 3129.1(a). 

Instantly, the certified record reveals that on June 29, 2018, the Bank 

filed a praecipe for writ of execution. On the same day, the certified record 

shows the Bank filed an affidavit in compliance with Pa.R.C.P. 3129.1(b). 

Finally, on July 16, 2018, the certified record contains a certification of 

mailing to Appellants8 and lienholders pursuant to Pa.R.C.P. 3129.2. These 

documents together satisfy the issuance, service, and notice requirements of 

a writ of execution for a mortgage foreclosure pursuant to the 

aforementioned rules. See also Trial Court Opinion, 10/2/2019, at 7-9 

(concluding that service of both the writ and notice of sale were proper). 

Accordingly, we agree with the trial court that Appellants are not entitled to 

relief and conclude the trial court did not abuse its discretion in denying 

Appellants’ petition to set aside the sheriff’s sale.

Order affirmed. 

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8 This notice was sent to Attorney Forbes. Even though at the hearing 

Appellants argued that service on Attorney Forbes was improper, they do not 

make that argument on appeal. Even if they did make that argument on 

appeal, it would not entitle them to relief, as we agree with the trial court 

that service on Attorney Forbes was proper because he never withdrew his 

appearance. See Trial Court Opinion, 10/2/2019, at 9.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/20