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FIDELITY BANK v. PIERSON ET UX. (04/22/70)

decided: April 22, 1970.

FIDELITY BANK
v.
PIERSON ET UX., APPELLANTS



Appeal from order of Court of Common Pleas of Montgomery County, No. 68-5211, in case of The Fidelity Bank v. Edward T. Pierson et ux.

COUNSEL

Samuel C. Nissenbaum, for appellants.

R. D. Mathewson, for appellee.

J. Harry Wagner, Jr., for appellee.

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

Author: O'brien

[ 437 Pa. Page 542]

This is an appeal from an order refusing to set aside a sheriff's sale of real estate. A Petition to set aside such a sale is addressed to the sound discretion of the court below and its decision will not be reversed on appeal unless there is a clear abuse of that discretion. Phila. Nat. Bank v. New Ideas Enter., Inc., 424 Pa. 284, 227 A.2d 873 (1967).

The court below found the following facts:

"On April 17, 1968, the Fidelity Bank entered judgment on a Bond and Warrant accompanying a mortgage dated October 31, 1961, for $15,000, payable in installments with interest at 6% and 5% collection fees. On May 8, 1968, an assessment of damages was filed averring the sum of $11,478.51 to be still due, and writ of execution was issued for the subject premises at 411 Mayfield Ave., Elkins Park, Pa. Sale was scheduled for June 26, 1968.

"Before June 26, 1968, the defendants, through their counsel, John J. Pettit, Esq., requested a delay until the next sale in order to afford defendants time in which they could obtain other financing. The sale was postponed until July 31, 1968, provided $1,592.59 was deposited with plaintiff, together with a receipt showing that the real estate taxes were paid, and a fully paid insurance policy in force protecting the property on which the mortgage was secured. (These latter items had been discovered to be unpaid). Defendants

[ 437 Pa. Page 543]

    knew that unless the judgment was paid by July 31, 1968, plaintiff would proceed with the sale."

On four separate occasions, the defendants' request that the mortgage be ...


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