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CAPOZZI (ET AL. v. ANTONOPLOS. (05/27/64)

May 27, 1964

CAPOZZI (ET AL., APPELLANT),
v.
ANTONOPLOS.



Appeal, No. 87, March T., 1964, from order of County Court of Allegheny County, No. 1120 of 1962, in case of Alvin D. Capozzi and David Marlin Laufe, now to use of Tom G. Zaimes, assignee, v. Anthony P. Antonoplos and Milton P. Antonoplos. Order affirmed; reargument refused June 29, 1964.

COUNSEL

Robert W. McWhinney, with him Edwin J. Martin and Goehring & McWhinney, for appellant.

Emil W. Herman, with him Meyer W. Gordon and Rothman, Gordon & Foreman, for appellee.

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

Author: Eagen

[ 414 Pa. Page 566]

OPINION BY MR. JUSTICE EAGEN

Tom G. Zaimes, Anthony P. Antonoplos and Milton P. Antonoplos were the sole owners in equal proportions of the stock of the Monroeville Drive-In Corporation. A dispute arose concerning salaries paid shareholders

[ 414 Pa. Page 567]

    employed by the corporation. The Antonoploses retained Attorneys Alvin D. Capozzi and David Marlin Laufe to represent their individual interests. A settlement was reached and agreement consummated by the parties involved on August 27, 1960, which provided, inter alia, that the corporate stock certificates were to be endorsed with the legend making the stock subject to the agreement.

The Antonoploses delivered their stock certificates to their attorneys, Capozzi and Laufe, for the purpose of inscribing the certificates in accordance with the agreement. The certificates were never returned.

Subsequently, Attorneys Capozzi and Laufe billed their clients in the sum of $1000 for services rendered. When the bill remained unpaid, suit was instituted resulting in the entry of a default judgment on October 13, 1961. The sum of $175 was paid on the indebtedness in April 1962.

On May 7, 1962, Capozzi and Laufe assigned the judgment to Zaimes, without notice to the judgmentdebtors. On the same day, a writ of execution issued. On May 26, 1962, the return of the sheriff was filed averring: (1) A levy on the stock involved, on May 14, 1962, in the possession of Capozzi and Laufe as garnishees; (2) Advertisement of the stock for sale at the sheriff's office on May 21, 1962, at ten o'clock a.m.; (3) Sale consummated on the date advertised for the sum of $58.30, the exact amount of the costs of the execution process. While the return fails to disclose the specific manner in which the sale was advertised or the identity of the sale purchaser, it is undisputed that no notice of the levy or sale was given to the legal owners of the stock and that the purchaser at the sale was Zaimes.

On July 13, 1962, the Antonoploses filed, in the County Court of Allegheny County, petitions to open the judgment and ...


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