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DOHERTY v. ADAL CORPORATION (01/30/70)

decided: January 30, 1970.

DOHERTY, APPELLANT,
v.
ADAL CORPORATION



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1966, No. 6815, in case of Thomas A. Doherty, Jr., v. Adal Corporation et al.

COUNSEL

Abe Lapowsky, for appellant.

James R. Mathewson, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts.

Author: O'brien

[ 437 Pa. Page 110]

This is an appeal from the final decree of the Court of Common Pleas of Philadelphia County. Appellant mortgagor, Thomas A. Doherty, Jr., brought suit against appellees, Adal Corporation and Louis J. Megaro, to set aside a Sheriff's Sale. The appellant was the owner of the premises at 1525 South 26th Street, Philadelphia, subject to a mortgage and bond given in March, 1957, to the Savings and Loan Association of South Philadelphia. On March 1, 1966, the Association assigned the mortgage and bond to Adal Corporation. On May 10, 1966, Adal entered judgment by confession on the bond, issued execution on the judgment, and directed the Sheriff to sell the premises at a Sheriff's Sale on June 6, 1966. The property was sold at the Sheriff's Sale to Adal's attorney, who later assigned his bid to appellee Megaro, who received a deed from the Sheriff, recorded on July 22, 1966.

Appellant's ground for complaint is that the sale did not conform with the notice provisions of Philadelphia

[ 437 Pa. Page 111]

Local Rule 3129(f) (1) and (2) (formerly Rules 910a and 910b).*fn1 Primarily, this assertion is that the notice of entry of judgment and of the impending Sheriff's Sale, having been sent to the mortgaged premises by Adal, the mortgagee's assignee, rather than to

[ 437 Pa. Page 112]

    appellant's home, where the mortgagee had sent all notices, was ineffective. The court below held that Adal sent the notice to the only address it had, and that was sufficient. Although we have grave doubts that an interpretation of a rule which would allow the mortgagee's assignee to stand on a better footing than the mortgagee is valid, we need not enter upon an inquiry into the meaning of a local rule of court, a task which we are always reluctant to undertake. Cf. McFadden v. Pennzoil Company, 326 Pa. 277, 191 Atl. 584 (1937); Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (1938). But cf. Dearnley v. Survetnick, 360 Pa. 572, 63 A.2d 66 (1949).

The court below quite properly pointed out that the instant proceeding is an equitable one, governed by equitable principles. Dearnley v. Survetnick, supra. The appellant had visited the premises every week or two, and had seen that the locks had been changed and that vast improvements were being rendered to the property beginning June 15, 1966. Yet he did not institute suit until September 9, 1966. It was surely within the power of the court to withhold relief on the basis that the appellant had unclean hands in ...


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