Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1967, No. 599, in case of Mid-City Federal Savings and Loan Association of Philadelphia v. Clifford Gaines et ux.
Maxwell L. Davis, with him Davis & Davis, for appellants.
Edwin S. Malmed, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 213 Pa. Super. Page 128]
Dissenting Opinion by Hoffman, J.:
Defendants, husband and wife, purchased the premises located at 2615 North Chadwick Street, Philadelphia, on January 15, 1953 for $6000.00. On December 30, 1958, the defendants obtained a mortgage on the above premises, and executed a bond and warrant of attorney with plaintiff, Mid-City Federal Savings and Loan Association of Philadelphia, to secure the payment of the mortgage.
The defendants failed to pay the mortgage payments due from September 1, 1966 through December 1, 1966. The amounts being past due, plaintiff filed an averment of default and entered judgment on the bond and warrant of attorney against the defendants on December 13, 1966.
On December 13, 1966, plaintiff also filed an affidavit pursuant to Common Pleas Rule 910 of the Courts of Philadelphia, that stated that it had sent notice of the entry of the judgment and the date, time, and place of the sheriff's sale of the premises. The notices, in the form of separate letters to each of the defendants, were returned to the plaintiff by the Postal authorities on December 29, 1966, marked "Unclaimed."*fn1 Plaintiff did not then file an affidavit, required by Rule 910, that it had diligently attempted to notify defendants by written notice but such notices were not received.
[ 213 Pa. Super. Page 129]
The property was subsequently sold at sheriff's sale on January 9, 1967, and was purchased for $2100.00. On July 14, 1967, defendants filed a "Petition to Open Judgment and Set Aside Sheriff's Sale." Plaintiff filed an answer to the petition and new matter, to which defendants filed a reply. In addition, depositions were taken by both parties in support of their positions. After ...