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DELAWARE VALLEY FACTORS v. G. B. ECHENHOFER CO. (12/11/73)

decided: December 11, 1973.

DELAWARE VALLEY FACTORS, INC.
v.
G. B. ECHENHOFER CO., INC. ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, No. 737, in case of Delaware Valley Factors, Inc. v. G. B. Echenhofer Co., Inc., Joan M. Orasz, Stephen G. Orasz and G. B. Echenhofer.

COUNSEL

Jacob S. Richman, with him Richman & Richman, for appellants.

Charles M. Golden, with him Sidkoff, Pincus, Greenberg & Golden, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J.

Author: Spaeth

[ 226 Pa. Super. Page 166]

This is an appeal from an order dismissing appellants' exceptions to an order fixing the fair market value of their property pursuant to the Deficiency Judgment Act, Act of July 16, 1941, P. L. 400, 12 P.S. § 2621.1 et seq. Appellants raise two issues: whether the proceedings should be held void because of improper service of process; and whether the Act's six month period of limitations had lapsed. We hold against appellants on both of these issues and affirm the order of the court below.

In 1969, corporate appellant executed a bond and warrant secured by a mortgage on its meat processing plant in Philadelphia. At the same time, its officers, the individual appellants, executed written guarantees of the indebtedness.

On June 3, 1970, appellee confessed judgment for $81,893.84 on the corporate bond and warrant and issued

[ 226 Pa. Super. Page 167]

    execution. Pursuant to this the property was sold at a sheriff's sale on September 14, 1970, and was purchased by appellee for $5,700. On June 19, 1971, appellee delivered to the sheriff the balance of the purchase money, and on June 29 the sheriff delivered a Deed-Poll. On August 13, appellee filed a petition to fix fair value under the Deficiency Judgment Act. The court set September 20 as the date for hearing on the petition and directed appellee to serve appellant in accordance with section 4 of the Act, 12 P.S. § 2621.4. This section requires either personal service, service on an immediate member of the family at the residence, or by publication in the county where the petition is filed.

On the corporate appellant the sheriff returned "not found within the County of Philadelphia." Instead of serving notice by publication in Philadelphia, he attempted to serve the individual appellants, who live in Burlington County, New Jersey, by publication in Camden County, New Jersey, newspapers.

At the rescheduled hearing on September 30 before the Honorable Ned L. Hirsh, only appellee appeared; the court requested counsel to prepare a decree. On the morning of the same day, but too late for the hearing, counsel for appellants noted the listing of the hearing in the Legal Intelligencer. He went to Judge Hirsh's chambers, and was granted leave to file an answer to the petition to fix fair value, which he did on October 15. In the answer appellants alleged that the eleven months between the sale (in September, 1970) and the petition (in August, 1971) represented undue delay.

On February 14, 1972, appellants filed a petition to strike the petition to fix fair value and to mark the judgment satisfied. This petition reiterated the allegation of undue delay but further pointed out the defective publication (in Camden County instead of Philadelphia), pleading that because of ...


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