Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1966, No. 5787, in case of Marion S. Roberts v. Robert A. Gibson et ux.
J. Leon Rabben, for appellant.
Herman Blumenthal, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J.
[ 214 Pa. Super. Page 221]
Appellant Marion S. Roberts filed a complaint in ejectment for premises No. 10 Pomona Street in Philadelphia and requested damages for detention. After trial before the court without a jury, the Honorable Bernard J. Kelley returned a verdict for the appellant for possession but denied damages. The appellees filed exceptions to that part of the verdict awarding possession to appellant. After argument, the trial judge sustained the exceptions and by order dated July 9, 1968, denied appellant's claim for possession. That order is before us for consideration. We reverse.
A review of the events leading up to the ejectment action is necessary for an understanding of the case. Lenerte Roberts, appellant's husband, is a real estate broker in Philadelphia. Apparently appellees had some dealings with Mr. Roberts and in 1958 they filed a complaint with the Pennsylvania State Real Estate Commission charging him with certain violations of the Real Estate Brokers License Act of 1929, 63 P.S. § 431 et seq. The commission issued a citation to show cause why Roberts' brokerage license should not be suspended or revoked. Roberts engaged counsel and defended against this citation. The Real Estate Commission dismissed the complaint and Roberts' license was at no time suspended.
In 1962 Roberts brought a trespass action against the appellees based on their action in filing a complaint with the Real Estate Commission. The complaint charged them with malicious prosecution, malicious use of process and malicious abuse of process. A default judgment for the plaintiff was entered for defendants' failure to enter an appearance or file an answer. Damages of $1500 were subsequently assessed
[ 214 Pa. Super. Page 222]
by the court. A writ of execution was issued on the judgment and appellees' property, against which the instant ejectment proceeding was brought, was sold by the sheriff on August 2, 1965. The property was purchased by the attorney on the writ for $600. The sheriff's deed is dated April 4, 1966, and Marion S. Roberts, wife of the execution creditor and appellant herein, is named as grantee.
Appellant based her claim for possession on the sheriff's deed. After exceptions to the finding in appellant's favor were filed, the court below went behind the sheriff's deed and examined the judgment upon which the execution was grounded to determine the ejectment action. Such an attack on a sheriff's sale usually cannot be made in a collateral proceeding. In Caplan v. Kent, 366 Pa. 87, 76 A.2d 764 (1950), it was held that a sheriff's return, regular on its face, could not be attacked collaterally in a bill in equity to quiet title. "Confirmation of a sheriff's deed cures irregularities and defects, which make the sale voidable . . . but not such fatal defects as render it void; and lack of power in the sheriff to make the sale is a fatal defect. . . ." McLanahan v. Goodman, 265 Pa. 43, 49, 108 A. 206, 208 (1919). In Mencke v. Rosenberg, 202 Pa. 131, 136, 51 A. 767, 769 (1902), the court said in reference to an ejectment action: "This is a proceeding collateral to that under which the land was sold. The acknowledgment of the sheriff's deed passed a valid title to the purchaser unless there was fraud or want of authority in the sale." After reiterating this rule in Knox v. Noggle, 328 Pa. 302, 196 A. 18 (1938), the court added: "The distinction is . . . between irregularities in the proceedings, misdescriptions of the property, the sale of several tracts as an entirety, defect of title, and similar objections, on the one hand, all of which are foreclosed as defenses by delivery of the sheriff's deed, and, on the other, attacks upon the
[ 214 Pa. Super. Page 223]
sale on the ground that it was unauthorized, or vitiated by fraud, in which cases the right of redress survives such ...