Thomas A. Masterson, Thomas C. Sadler, Jr., Morgan, Lewis & Bockius, Philadelphia, Raymond Pearlstine, Wisler, Pearlstine, Talone, Craig & Garrity, Norristown, for appellants.
Marvin L. Wilenzik, Gerber, Davenport & Wilenzik, Sidney M. DeAngelis, IPP, Norristown, for appellees.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case. Roberts, J., filed a concurring opinion in which Nix and Manderino, JJ., joined. Eagen, J., concurs in the result.
This appeal arises from a final decree in equity which granted the appellees, Sidney M. DeAngelis and Jack Friedland, relief by the appointment of a receiver and a stay of the pending sheriff sale. This appeal followed.
The facts surrounding this appeal are as follows. Pursuant to a judgment entered in the Court of Common Pleas of Montgomery County at No. 74-10540 against Edwin K. Daly and Jeanne G. Daly, his wife [hereinafter "Dalys"] in the amount of $205,147.03, appellants Ferrantes, the judgment creditors, caused a writ of execution to be issued July 23, 1974, under the authority of which the sheriff of Montgomery County, on August 1,
, levied upon personal property of the Dalys and at the direction of the Ferrantes took possession of certain ceramic items and antique furnishings found at the Daly residence. Proper notice being given, a judicial sale of the property seized by the sheriff was scheduled for September 25, 1974.
Shortly thereafter, the Dalys attempted unsuccessfully to stay the sheriff's sale by petitioning to open the judgment. However, the Montgomery County Court refused to stay all proceedings in the meanwhile. Thereafter, the Montgomery County Court ordered a stay of the sale, which order was later vacated. Subsequently, counsel representing certain purported creditors of the Dalys, including Sidney M. DeAngelis and Jack Friedland, appellees and plaintiffs below, appeared before Judge Smillie of the Montgomery County Court and successfully deferred the sheriff's sale until October 23, 1974, upon the representation that they would interest professional ceramic and antique collectors in the hope of obtaining higher proceeds at the sale. In entering its order, the court below expressly provided that the sale would not be deferred beyond the thirty days.
Prior to the termination of that stay, DeAngelis, who had entered judgment against Daly in the interim period, commenced these proceedings on October 17, 1974, by filing a complaint in equity (No. 74-15105) seeking to appoint a liquidating receiver over the property and permanently to enjoin the sheriff's sale of October 23, 1974. Named as defendants in the DeAngelis complaint were appellants, the Dalys and the sheriff of Montgomery County. At approximately 4:00 p. m. on October 17, 1974, the Honorable Vincent A. Cirillo, Judge of the Court of Common Pleas of Montgomery County, ruled all named defendants to show cause why the court should not grant the relief requested and scheduled a hearing in that action for Friday, October 18, 1974, the very next day.
At the hearing, appellants filed preliminary objections to DeAngelis' complaint in equity and a memorandum in support thereof. In addition, Jack Friedland filed a nearly identical complaint in equity ...