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SHUSTER v. BARKUS ET UX. (04/18/63)

April 18, 1963

SHUSTER
v.
BARKUS ET UX., APPELLANTS.



Appeal, No. 6, Oct. T., 1963, from order of County Court of Philadelphia, June T., 1959, No. 2732, in case of Herman Shuster v. Albert Barkus et ux. Order reversed; reargument refused May 10, 1963.

COUNSEL

Anthony L. V. Picciotti, with him Alfeo P. Libetti, for appellants.

Ronald N. Rutenberg, with him Harry A. Rutenberg, for appellee.

Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 200 Pa. Super. Page 602]

OPINION BY ERVIN, J.

We are here concerned with a dispute over the distribution of the proceeds of a sheriff's sale of real estate on a writ of fieri facias.

On June 8, 1959 a judgment was entered by Liberty Real Estate Bank & Trust Company (hereinafter called "bank"), against Albert Barkus, Annette Barkus and Charles Barkus, and damages were assessed in the sum of $3,722.60. On June 19, 1959 a second judgment was entered by Herman Shuster against Albert Barkus and Annette Barkus and damages were assessed in the sum of $3,455.00. The bank loan became in default and the bank sold its judgment on December 8, 1959 to James Mathewson, Esquire, who on the same date had the bank judgment marked to the use of Sarah Steinberg, a straw person. On December 9, 1959 Mathewson issued a writ of fieri facias returnable to the first Monday of January 1960 for execution against premises 6329 Fariston Drive. Mathewson notified the Barkuses that there would be a sheriff's sale of their Fariston Drive property and the Barkuses brought Mathewson's letter to their attorney, John M. McAllister. McAllister made arrangements with an Anthony Dibenedetto to borrow the sum of $4,000.00 to pay off the bank judgment but DiBenedetto could not produce the

[ 200 Pa. Super. Page 603]

    money until after the middle of January 1960. McAllister endeavored to get Mathewson to postpone the sale but was advised by Mathewson that his client would not permit any postponement and that the money had to be paid before the sale date. McAllister then advised a friend of his by the name of Edward Holland of his client's (the Barkuses) situation. Holland temporarily loaned the sum of $3,300.00 to McAllister to save the day. McAllister, on January 8, 1960, paid this sum of money in cash to Mathewson and in addition thereto gave his own personal check in the sum of $60.80 to Mathewson and Mathewson on the same date stayed the sale on the writ which had issued under the bank judgment. McAllister on the same date, January 8, 1960, had the bank judgment marked to his own use (John M McAllister, Esquire).

Anthony DiBenedetto testified that on January 26, 1960 he received from Michael Scutti a check for $4,500.00 and he produced a bank deposit slip to show the deposit of this check in the bank on the same date. He also testified that on January 26, 1960 he gave a check on his agency account to McAllister in the sum of $4,000.00 for the purpose of acquiring the bank judgment. McAllister corroborated this testimony. It is clear from the evidence that DiBenedetto was looking to the bank judgment as security for the repayment of this money. Of the $4,500.00 obtained from Scutti, DiBenedetto took $500.00 as a fee for his services to Scutti. With the money received from DiBenedetto, McAllister repaid Holland the money temporarily borrowed from him and the balance of the $4,000.00, to wit, $700.00, he turned over to his clients, the Barkuses, and the Barkuses in turn out of this money repaid McAllister the $60.80 which McAllister had paid to Mathewson.

DiBenedetto also testified that he received payments from the Barkuses in ...


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