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METROPOLITAN FEDERAL SAVINGS AND LOAN ASSOCIATION EASTERN PENNSYLVANIA v. JOHN P. BAILEY ET AL. APPEAL FIDELITY AMERICA FINANCIAL CORPORATION (12/15/76)

decided: December 15, 1976.

METROPOLITAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF EASTERN PENNSYLVANIA
v.
JOHN P. BAILEY ET AL. APPEAL OF FIDELITY AMERICA FINANCIAL CORPORATION



Appeal from the Order Dated January 26, 1976 of the Court of Common Pleas of Delaware County, at No. 13,738 of 1974. Civil Action, Law. No. 1119 October Term, 1976.

COUNSEL

Roderick D. Mathewson, Norristown, for appellant.

Anthony F. List, Media, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Hoffman

[ 244 Pa. Super. Page 455]

Appellant, Fidelity America Financial Corporation, and appellees, James S. and Ethel C. Faires, are lien creditors of John and Marian Bailey (hereinafter referred to as "Bailey"). Appellees filed exceptions to the proposed schedule for distribution of proceeds of a sheriff's sale of Bailey's house, on the basis that judgments held by appellant had been previously stricken. Believing that the two judgments were subject to challenge, the lower court stayed distribution pending the outcome of litigation in connection with the judgment liens held by appellant. Because we find that this appeal is interlocutory, we quash.

This case involves four separate actions by several parties against Bailey: a mortgage foreclosure by Metropolitan Federal Savings and Loan Association of Eastern Pennsylvania (hereinafter "Metropolitan"), appellant's action on a promissory note, appellant's suit in assumpsit, and appellees' action on a note. A discussion of the relevant procedural history and status of each action follows.

Metropolitan filed a complaint in mortgage foreclosure on December 6, 1974. Metropolitan entered judgment by default and issued a writ of execution on February 21, 1975. On March 27, 1975, the Delaware County Sheriff sold Bailey's house at 412 Ridge Lane, Springfield Township, for $50,000. On April 15, 1975, the Sheriff posted the following proposed schedule of distribution: transfer tax due the Commonwealth of Pennsylvania, $500.00; Sheriff's cost, $860.80; transfer tax due the Township and/or School District of Springfield, $500.00; real estate tax for the year 1974 (School), $826.25; real estate tax for the year 1975 (County and Township), $433.10; sewer rents (1975), $53.45; Metropolitan Federal Savings and Loan Association of Eastern Pennsylvania on the judgment entered February 21, 1975, $22,096.54; balance of fund to appellee on judgment note recorded

[ 244 Pa. Super. Page 456]

    against Bailey on June 30, 1970. The instant case involves the appropriate distribution of the $24,729.86 balance. Appellees argued that the liens in favor of appellant were not valid and that their lien for $21,460.50 should be given priority. The conflicting claims of appellant and appellees arise from three separate actions.

On June 3, 1970, appellant recorded a judgment note against Bailey in the amount of $40,000. Appellant assessed damages on May 7, 1974, in the amount of $25,452.26. On May 14, 1975, Bailey filed a petition to strike judgment.*fn1 Appellant filed its answer on May 29, 1975. No further action on this petition is indicated in the docket entries.

Appellant's second lien derives from the following action. On February 24, 1972, appellant filed a complaint in assumpsit against Bailey, alleging a written contract with a ...


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