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PALKOVITZ v. SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION PITTSBURGH. (11/27/63)

November 27, 1963

PALKOVITZ, APPELLANT,
v.
SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION OF PITTSBURGH.



Appeal, No. 120, March T., 1963, from judgment of Court of Common Pleas of Allegheny County, April T., 1959, No. 2980, in case of Jack Palkovitz v. Second Federal Savings and Loan Association of Pittsburgh. Judgment reversed.

COUNSEL

Guy L. Warman, with him John A. Metz, Jr., and Metz, Cook, Hanna & Kelly, for appellant.

B. A. Karlowitz, with him Frank F. Troup, Richard B. Tucker, Jr., and Patterson, Crawford, Arensberg & Dunn, for appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: O'brien

[ 412 Pa. Page 548]

OPINION BY MR. JUSTICE O'BRIEN

Appellant filed a petition for declaratory judgment, in order to determine the rights of the parties with respect to certain real estate. After completion of the pleading cycle, the parties stipulated as to the controlling factual situation and the trial court entered a declaratory judgment adverse to appellant. Appellant filed exceptions, which were dismissed by the court en banc; this appeal followed.

The stipulated facts in the case are as follows: "By deed dated October 13, 1955, East Arlington Inc., made a conveyance of three certain lots to John R. Neckerauer and Joseph Tucci, of the Township of North Versailles, County of Allegheny and Commonwealth of Pennsylvania, with the words in a different print added: 'partners, trading and doing business as Tucci and Neckerauer', parties of the second part. This deed was July recorded in the Recorder's Office of Allegheny County in Deed Book Volume 3420, page 353, on October 19, 1955.

"On June 20, 1956, Pittsburgh Penn Center Corporation entered a judgment against John R. Neckerauer and Joseph Tucci at D.S.B. No. 3596 July Term, 1956. Subsequently, on July 10, 1956, Joseph Tucci and John R. Neckerauer executed a bond and mortgage to Second Federal Savings and Loan Association of Pittsburgh,

[ 412 Pa. Page 549]

    in the face amount of $45,000.00 covering, inter alia, the three lots involved in these proceedings. The mortgagors in said mortgage were described as 'Joseph Tucci and John R. Neckerauer individually and trading and doing business as Tucci and Neckerauer'. Said mortgage was signed by each of them as a partner and individually. The acknowledgment of the mortgage referred to the mortgagors as 'Joseph Tucci and John R. Neckerauer, individually and trading and doing business as Tucci and Neckerauer'. This mortgage was duly recorded in the Recorder's Office of Allegheny County in Mortgage Book Volume 3904, page 485, on July 11, 1956.

"On October 24, 1958, Pittsburgh Penn Center Corporation issued execution on its judgment at Fi. Fa. No. 243 January Term, 1959, directing the Sheriff to levy upon and sell the three lots involved in these proceedings as the property of John R. Neckerauer and Joseph Tucci, individually. Subsequently, by deed dated December 20, 1958, the Sheriff executed a deed to the three lots to the plaintiff. Said deed was recorded in the Recorder's Office of Allegheny County on January 14, 1959, in Deed Book Volume 3682, page 487."

The question for determination is whether the Sheriff's sale on the judgment filed prior to the recording of the mortgage, ...


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