No. 641 October Term, 1977, Civil Action (Law) - Appeal from the Order, Entered November 19, 1976, of the Court of Common Pleas of Montgomery County, at No. 71-12763.
Terrence J. McCabe, Philadelphia, for appellant.
Joseph J. Hylan, with him Paul C. Vangrossi, Norristown, for appellees, Campbell's and Curcio's.
No appearance entered nor brief submitted for appellee, Kelsey-Barber Corp.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Cercone, J., joins. Van der Voort, J., dissents.
[ 252 Pa. Super. Page 322]
Appellant contends that the lower court erred in setting aside a sheriff's sale of appellee's residence. We agree and, therefore, reverse the lower court's order.
The record reveals the following: On August 16, 1967, Charles and Philomena Curcio co-signed an installment sales contract to secure the purchase of an automobile by Geraldine and Jeffrey Campbell, the Curcios' daughter and son-in-law. When the Curcios and Campbells failed to pay the monthly installments in accordance with the terms of the contract, the First Pennsylvania Banking and Trust Company, the holder of the contract, filed a complaint in assumpsit for the unpaid balance and reasonable attorney's fees. On November 30, 1971, the Court of Common Pleas of Montgomery County entered a default judgment against Philomena and Charles Curcio, in the amount of $652.07. On March 28, 1972, First Pennsylvania assigned the judgment to Kelsey-Barber Corporation which, on July 6, 1973, filed a praecipe for a writ of execution against the residence of Philomena Curcio, located at 562 Gibson Avenue, Hollywood, Montgomery County, Pennsylvania.
On August 20, 1973, Appellee Philomena Curcio's attorney filed a petition to stay the sheriff's sale and open judgment. After the passage of almost two years, the lower court entered a judgment of non pros against appellee for failure to take depositions. On September 11, 1975, the lower court entered judgment against Geraldine and Jeffrey Campbell in the amount of $799.82.*fn1 On the same day, Kelsey-Barber filed a new praecipe for a writ of execution, and the Montgomery
[ 252 Pa. Super. Page 323]
County Prothonotary issued a writ of execution against the Curcios and Campbells. The writ directed the sheriff to levy upon 562 Gibson Avenue, Hollywood, Pennsylvania. On September 11, 1975, Kelsey-Barber's attorney filed an affidavit of notice of sale, representing that he had notified the Curcios and Campbells by registered mail of the time and place of the impending sale. The sheriff conducted the sale on December 17, 1975, and sold the premises to appellant for $2500. Appellant recorded the deed on April 2, 1976. On May 14, 1976, appellee, Philomena Curcio, filed a petition to set aside the sheriff's sale. In the petition, appellee represented, inter alia, that she never received notice of the sheriff's sale. Further, she averred that her bank notified her of the sale four months later when it refused to accept her monthly mortgage payment. Following a deposition pursuant to the petition, the lower court, on November 19, 1976, ordered that the sale be set aside. The court noted appellee's assertion that she never received personal notice of the sale. It also found no record of personal notice having been sent by Kelsey-Barber. The court concluded, therefore, that the sale was invalid. This appeal followed.*fn2
Appellant contends that the notice Kelsey-Barber sent to appellee satisfied the standards of due process. More specifically, appellant asserts that the notice substantially complied with amended Rule 3129 of the Pennsylvania Rules of Civil Procedure, 42 Pa.C.S. (1975), amending Pa.R.C.P., 42 Pa.C.S. (1962) and Philadelphia ...