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GRIMES v. GRIMES ET AL. (03/19/70)

decided: March 19, 1970.

GRIMES
v.
GRIMES ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1967, No. 492, in case of Charles Burton Grimes et al. v. Walter F. Grimes et al.

COUNSEL

Frank D. DiCenzo, for appellants.

W. H. Markus and R. C. Riethmuller, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 216 Pa. Super. Page 151]

Appellees (hereinafter "judgment creditors") confessed judgment on a note against appellants (hereinafter "judgment debtors") in the amount of $12,190.00. This amount, we must assume, consisted of the principal appearing on the face of the note (less credits), interest unpaid as of the date of confession, and attorney's commission. Although the note did not contain an acceleration clause, we must assume on this appeal that the note permitted entry of judgment in this amount since an attack on the judgment was never made. See, e.g., Pacific Lumber Co. v. Rodd, 287 Pa. 454, 135 A. 122 (1926); Harwood v. Bruhn, 313 Pa. 337, 170 A. 144 (1934); Rose v. Cohen, 193 Pa. Superior Ct. 454, 165 A.2d 264 (1960).

The judgment creditors then filed a praecipe for writ of execution in the amount of $5,520.00, consisting of principal and interest in default as of the date of filing, and attorney's commission. See, e.g., Shapiro v. Malarkey, 278 Pa. 78, 122 A. 341 (1923); Rose v. Cohen, supra. Execution was then issued in said amount upon real estate belonging to the judgment

[ 216 Pa. Super. Page 152]

    debtors. A sale was held, at which the judgment creditors purchased the real estate for taxes and costs.

The judgment creditors then brought a petition to fix the fair market value of the property under the Deficiency Judgment Act, Act of July 16, 1941, P. L. 400, 12 P.S. ยง 2621.*fn1 A hearing was held, at which evidence as to market value was taken. The court below fixed the value of the real estate at $11,000.00.

The court further concluded that the debt was $13,723.74, consisting of the judgment, interest accumulated between entry of judgment and execution sale,*fn2 taxes and costs. The court then declared that a deficiency of $2,723.74 remained. From that order, fixing the fair market value of the real estate and declaring a deficiency, this appeal followed.*fn3

Section 6 of the Deficiency Judgment Act provides, in pertinent part, as follows:

". . . If an answer [controverting the fair market value stated in the judgment creditor's petition] shall be filed and testimony produced setting forth that the fair market value of the property is more than the value stated in the [judgment creditor's] petition, the court shall determine and fix the fair market value of the property which ...


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