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JAY VENDING (09/22/75)

decided: September 22, 1975.

JAY VENDING, INC., ET AL. APPEALS


Appeals from order of Court of Common Pleas of Montgomery County, No. 73-15375, in case of In Re: Distribution of Proceeds From Sheriff's Sale of Premises 250 Bell Road, Lower Merion Township, Montgomery County Pennsylvania. Appeal of: Jay Vending Inc., Michael Margolies, John H. McCoy, and William L. O'Hey, Jr.

COUNSEL

Edward Fackenthal and Edward N. Kurland, with them Charles Blasband, and Henderson, Wetherill, O'Hey and Horsey, for appellants.

L. Carter Anderson, with him George M. Brodhead, James A. Cassel, Thomas E. Waters, and Rawle & Henderson, and Waters, Fleer, Cooper & Gallager, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 236 Pa. Super. Page 260]

This is an appeal by judgment creditors from an order of Judge Richard E. Lowe of the Court of Common Pleas of Montgomery County, sustaining exceptions by appellee-judgment creditor to a sheriff's schedule of distribution. The controversy arises from the following facts.

Appellee, Boenning and Scattergood, Inc. (Boenning) obtained a judgment against John E. Jennings and Helen M. Jennings, his wife, in the amount of $30,500 on April 14, 1966. On July 3, 1970, Boenning initiated execution proceedings against real property owned by Jennings located at 250 Bell Road, Montgomery County. However, this writ of execution was not formally recorded in the judgment index in the Prothonotary's Office in Montgomery County. Mr. and Mrs. Jennings moved for a stay order which was issued on July 13, 1970, to abide resolution of the judgment's validity. On July 29, 1972, the stay order was discharged by the lower court and that dismissal was affirmed per curiam by this court in Boenning & Company v. Jennings, 222 Pa. Superior Ct. 712, 294 A.2d 739 (1972).

Boenning then attempted to effect a second execution upon the Jennings' property, but again neglected to properly index the writ. Shortly thereafter, Mr. and Mrs. Jennings obtained an injunction from the United States District Court for the Eastern District of Pennsylvania which stayed the proceedings until December of 1973, when the United States Court of Appeals for the Third Circuit reversed the District Court. Boenning, at that time, instituted its third execution and the property was listed for sheriff's sale on February 20, 1974. On the same day the property was also scheduled for sale on the foreclosure of a first mortage in favor of the Equitable Life Assurance Society. The sum of $85,000 was realized from the sale, and after satisfaction of liens for taxes, costs of execution, and the Equitable mortgage, all of

[ 236 Pa. Super. Page 261]

    which had undisputed priority, the sum of $66,679.50 was available for distribution. The liens asserted against the remaining funds are as follows:

Approx. Amt.

     of Debt

Debt Date of Lien with Interest

1. Boenning Judgment April, 1966 $48,500

2. Strawbridge and Clothier

Judgment March, 1971 1,650

3. McCoy Mortgage August, 1971 ...


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