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decided: December 28, 1977.


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.

Author: Hoffman

[ 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 Local Rule 3129 .*fn3 There is great uncertainty in Pennsylvania surrounding the notice

[ 252 Pa. Super. Page 324]

    requirements applicable to sheriffs' sales of real estate. Rule 3129 contains the notice provisions governing such sales. Prior to 1975, the rule required the sheriff to post handbills in the sheriff's office and upon the property at least ten days prior to sale. The handbill was to describe "the property to be sold, its location, improvements, if any, the judgment of the court on which sale is being held, the name of the owner or reputed owner, and the time and place of the sale."*fn4 The sheriff was also required to publish the same information once a week for three successive weeks in a newspaper of general circulation in the county and in the legal publication, if any, designated for the publication of such notices.*fn5

In Luskey v. Steffron, Inc., 461 Pa. 305, 336 A.2d 298 (1975),*fn6 the Supreme Court held that former Rule 3129 denied the judgment debtor due process of law. The Court noted that while handbill and publication, historically, may have been sufficient notice to real estate record owners, ". . . [i]n today's urban society, the owners of real estate often live far removed from the area wherein their property is situated. To expect a record owner to visit his property periodically to check for sheriff's handbills or to read the newspaper of the district where his property is located is to accept the common law presumption that an owner of real estate visits his property every thirty days; such is not the case in today's society." Luskey No. 1, supra 461 Pa. at 308, 336 A.2d at 299.

[ 252 Pa. Super. Page 325]

The Supreme Court granted reargument in the Luskey case for the purpose of determining its effective date. In Luskey v. Steffron, Inc., 469 Pa. 377, 380, 366 A.2d 223, 224 (1976), the Court held that ". . . as of April 17, 1975, the date of Luskey No. 1, notice was given to municipalities, courts and the legal profession that notice by publication in sheriff's sales was no longer constitutional. Therefore, we are of the opinion that Luskey No. 1 is applicable to all sheriff's sales initiated after April 17, 1975."

In response to Luskey No. 1, the Supreme Court directed the promulgation of amended Rule 3129.*fn7 While the amended

[ 252 Pa. Super. Page 326]

    rule does not make significant changes in the procedures to be followed in sending notice by handbill or publication, it does add a third requirement of written notice. This notice, which is to be prepared by the judgment creditor, is to contain the same information included in the handbills. See

[ 252 Pa. Super. Page 327]

Original Rule 3129(a); Amended Rule 3129(b)(1). The judgment creditor has the option to direct the sheriff to serve this notice on the judgment debtor either in the manner provided for service of a writ of summons in assumpsit*fn8 or by registered mail, return receipt requested. Regardless of the method of service, however, the written notice must be served by the sheriff. See Amended Rule 3129(b)(2); Explanatory Comment.

The Supreme Court applied the amended rule prospectively to all writs of execution against real estate issued after November 6, 1975. Hence, there was a hiatus between April 17, 1975, the effective date of Luskey No. 1 and November 6, 1975, during which there was no applicable rule to determine the sufficiency of a judgment creditor's notice of an impending sheriff's sale. Because the Montgomery County Prothonotary issued the instant writ of execution on September 11, 1975, the case at bar falls in this interim period. Therefore, we must evaluate the propriety of the notice in the instant case without the assistance of a statewide or applicable local rule.*fn9

There were two guidelines to which Kelsey-Barber could have conformed its notice during this seven month interim period: first, the requirements of due process and second, by analogy, the Philadelphia Local Rule 3129 ,*fn10 cited with approval in Luskey No. 1.

In Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the United States Supreme Court declared that a fundamental requirement of due process is "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency

[ 252 Pa. Super. Page 328]

    of the action." We have found no cases applying the broad constitutional precepts of Mullane to an attack on the sufficiency of notice of a sheriff's sale of real property.*fn11 However, as a matter of first impression, to determine whether the notice in the instant case complied with this constitutional formulation, we would have to conclude that the notice sent "was not substantially less likely to bring home notice than other of the feasible and customary substitutes." Mullane, supra at 658.

The Philadelphia Local Rule 3129 contained constructive notice provisions identical to original Rule 3129. However, the rule*fn12 also required the judgment creditor or some person on his behalf to give written notice by personal service or by registered or certified mail to the judgment debtor and record owners of the real property to be sold of the place, date, and hour of the intended sale and the real estate to be sold. Further, the person sending notice was required to file an affidavit with the prothonotary stating that notice had been given in accordance with the rule.

[ 252 Pa. Super. Page 329]

The record in the instant case reveals only that Kelsey-Barber's attorney filed "an affidavit of notice of sale" in which he asserted that "a letter . . . was deposited in the United States Mail . . . which letter advised the said defendants and real owners of a sheriff's sale scheduled for November 26, 1975 at 1:00 p. m. in the Court House in the Borough of Norristown. Said letter was forwarded by certified mail, return receipt requested, to the last known address of said defendants at 562 Gibson Avenue aka 920 Gibson Ave., Hollywood, Pa." Conspicuously absent from the record is a return receipt for this letter, a clarification of the ambiguity in appellee's address, and evidence of additional notice informing appellees that the instant sale had been postponed from November 26, 1975, to December 17, 1975.*fn13 Further, there is no evidence in the record of any attempts by Kelsey-Barber or the sheriff to send notice to appellees by handbill or to publicize the sale in the appropriate local periodicals.

Because of the incompleteness of the record, we are unwilling to undertake an analysis of the novel question concerning the constitutional sufficiency of the notice in the instant case. Further, given the evidence in the record, we are constrained to find that Kelsey-Barber failed to comply with the Philadelphia Local Rule, the only specific guideline available at the time of the instant sale.*fn14

Because we believe the lower court had an inadequate basis for reaching its conclusion, we remand this case for a

[ 252 Pa. Super. Page 330]

    clarification and completion of the record. Specifically, the lower court should make findings as to the form and date of the notice sent and the information contained therein. Further, the introduction of confirmatory evidence in the form of return receipts and copies of written notices, publications, and/or handbills, if available, should be entered into the record.

Order vacated and case remanded for proceedings consistent with this opinion.

SPAETH, Judge, concurring:

Judge HOFFMAN has set out the facts of this case with great accuracy and thoroughness. I summarize them very briefly for convenience here.

A creditor sent notice to a debtor (appellee) that the creditor was about to have the sheriff levy on appellee's property.*fn1 The creditor sent the notice "return receipt requested" but has not put the return receipt (assuming one was received) in the record. The notification occurred after the Supreme Court, in Luskey v. Steffron, Inc., 461 Pa. 305, 366 A.2d 298 (1975), had invalidated, as not providing for sufficient notice, Pa.R.C.P. 3129,*fn2 which mandated notice by publication and by handbilling of property subject to a sheriff's sale, but before the enactment of amended Pa.R.C.P. 3129,*fn3 which requires personal notice to be sent, return receipt requested.

The majority opinion remands this case for completion of the record. I fully agree with that sensible disposition; but, to forestall another appeal I think we should advise the lower court what test to apply when it makes its findings.

[ 252 Pa. Super. Page 331]

On the merits, the question is what notice to the debtor was constitutionally required in the interstitial period when no rule was applicable. As the majority notes, the notice must, at a minimum, be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

As a point of departure, we know that handbilling and publication alone do not meet this test. Luskey v. Steffron, supra. Amended Rule 3129 requires personal notice in addition to handbilling and publication. I think the Rule provides a practical solution to the notice problem, but not the sole constitutional solution; for if a creditor knows that his notice was received personally by the debtor, I do not believe the constitution requires any further effort; its purposes are met at that point.

However, a caveat must be added: when one sends mail return receipt requested and does not get the return receipt, one has good reason to suspect that the notice did not arrive. In such a case, something more is required.

Here, if the creditor did not receive a return receipt, he could not have been at a loss for possible additional measures to take. In Luskey v. Steffron, supra, the Supreme Court cited with approval Philadelphia Local Rule 3129 *fn4 which required, in addition to notice by mail, notice by handbilling and publication, an apparent "back-up" precaution.*fn5

On remand, therefore, if the return receipt is placed in the record, and if the notice is found to have stated, reasonably in advance, the place, date and hour of the intended sale and

[ 252 Pa. Super. Page 332]

    the real estate to be sold,*fn6 the lower court should find that the notice was constitutionally adequate.

If no return receipt is placed in the record, however, the court must make a factual finding of whether the creditor did send notice to the debtor, as the creditor's affidavit alleges. If the court rejects the affidavit and finds that no notice was sent, it should hold the sale invalid. If the court finds that notice was sent, the court may infer from the creditor's inability to produce a return receipt that the creditor did not receive a receipt. This fact should have made the creditor suspect that the debtor had not received the notice. Under these circumstances, the creditor should have tried other notification techniques, such as handbilling and publication, which he easily could have derived from the Luskey court's approval of Philadelphia Local Rule 3129 *, or any measure equally calculated to meet the test of Mullane v. Central Hanover Bank & Trust Co., supra, when service by mail is suspected of having been ineffective. If no such measures were taken, the lower court should find that the notice was inadequate, and hold the sale invalid.

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