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WESTERN FLOUR COMPANY v. ALOSI ET UX. (04/15/70)

decided: April 15, 1970.

WESTERN FLOUR COMPANY
v.
ALOSI ET UX., APPELLANTS



Appeal from order of Court of Common Pleas of Philadelphia, May T., 1968, No. 4859-D, in case of Western Flour Company v. Rosario Alosi et ux.

COUNSEL

Joseph P. Gorham, for appellants.

Rudolph J. Di Massa, for appellee.

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

Author: Montgomery

[ 216 Pa. Super. Page 342]

This is an appeal from the order of the former County Court of Philadelphia County refusing the petition of appellants, Rosario Alosi and Marie Alosi, his wife, to set aside a sheriff's sale of their real property which had been levied on and sold to satisfy a judgment of the Western Flour Company (Western), the judgment creditor-appellee. No depositions having

[ 216 Pa. Super. Page 343]

    been filed by either party, this case was decided by the court below on petition and answer.

This controversy involves the interpretation and application of the provision of the Deficiency Judgment Act of July 16, 1941, P. L. 400, § 1, 12 P.S. § 2621.1, which reads as follows: "Whenever any real property has heretofore been or is hereafter sold, directly or indirectly, to the plaintiff in execution proceedings and the price for which such property has been sold was or is not sufficient to satisfy the amount of the judgment, interest and costs and the plaintiff seeks to collect the balance due on said judgment, interest and costs, the plaintiff or plaintiffs shall petition the court having jurisdiction to fix the fair market value of the real property sold as aforesaid . . . ." The appellants argue that the present sheriff's sale is void because Western previously on the same judgment had executed on other real property belonging to them, became the purchaser thereof at the sheriff's sale, and failed to comply with the above provision of the Deficiency Judgment Act before proceeding to execute on and sell their other property. Western argues that it was not required to comply with the act after the previous sheriff's sale for the reason that it neither directly nor indirectly was the purchaser of the property at that sale.

The uncontroverted facts are as follows. On May 28, 1968, judgment was confessed by Western on a judgment note signed by appellants, and damages were assessed in the amount of $872. On the same day execution issued and a levy was made on premises owned by appellants at 3912 North Reese Street, Philadelphia, Pennsylvania, the sheriff's sale of same being held in July, 1968. The property was sold by the sheriff to the attorney on the writ, Rudolph J. DiMassa, representing Western Flour Company, for $2,050, which covered only the delinquent taxes and costs, no other bids for same having been made. Thereafter Western took

[ 216 Pa. Super. Page 344]

    no action in compliance with the Deficiency Judgment Act, but on September 18, 1969, issued another writ of execution on premises owned by appellants at 3910 North Reese Street, Philadelphia, Pennsylvania. This property was offered for sale by the sheriff on November 3, 1969. There were no other bids at this sale, and this property was also sold to Rudolph J. DiMassa, the attorney on the writ, for $3,000, representing delinquent taxes and costs.

Although the sheriff returned the property sold at the first sale as having been sold to Ruggero D'Onofrio for $2,050, Western's answer to appellants' petition states, "3. . . . There were no bids in that sale and the property went to Rudolph J. Di Massa, Esquire, attorney on the Writ, for the sum of $2,050.00 for delinquent taxes and costs only. The sale to the attorney on the Writ for the stated consideration did not include any part of the judgment which plaintiff has in the instant case." From this admission, it must be concluded that after the property "went to" DiMassa, Western's attorney, D'Onofrio was designated by the attorney or his client to take title to the property and the sheriff complied with such request or designation. However, it appears equally clear that D'Onofrio was not the person to whom the sheriff sold or "knocked down" ...


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