Nos. 289 and 322 January Term 1976, Appeal from the Judgment of the Superior Court at Nos. 302, 362, 440 October Term, 1975 reversing the order dated October 30, 1974, of the Court of Common Pleas, CIVIL ACTION-LAW, for the County of MONTGOMERY, at No. 73-15375
Henderson, Wetherill, O'Hey & Horsey, Edward Fackenthal, Norristown, for appellants at No. 289 and appellees at No. 322.
Waters, Fleer, Cooper & Gallagher, Thomas E. Waters, Norristown, Rawle & Henderson, George M. Brodhead, L. Carter Anderson, Philadelphia, for appellant at No. 322 and appellee at No. 289.
Edward N. Kurland, Philadelphia, for appellee, Jay Vending, Inc.
Charles Blasband, Norristown, for appellee, Michael Margolies.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., concurs in the result. Packel, J., did not participate in the decision of this case.
This case involves two appeals from an order of the Superior Court reversing an order of the Court of Common Pleas of Montgomery County. The Court of Common Pleas sustained exceptions to a sheriff's schedule of distribution of proceeds from the sale of real estate. In dispute is the allocation of such proceeds among competing creditors of the property owners.
The parties to this appeal are appellants, Boenning and Scattergood, Inc. [Hereinafter: Boenning], holder of a 1966 judgment, and John H. McCoy, holder of a 1971 mortgage, and appellees, Michael Margolies, holder of a 1971 mortgage dated later than McCoy's, Jay Vending, holder of a 1973 judgment, and William L. O'Hey, Jr., also holder of a 1973 judgment.
The controversy arises from the following facts:
On April 14, 1966, Boenning entered judgment on a note for $30,500 against John and Helen Jennings [Hereinafter: Jennings] in the Court of Common Pleas of Montgomery County. On July 3, 1970, Boenning initiated execution proceedings against real property owned by Jennings at 250 Bell Road, Lower Merion Township, Montgomery County. Although issued, the writ of execution was never recorded in the judgment index. Thereafter, Jennings, in an attempt to challenge the underlying debt, moved to open judgment and requested a stay order. The stay was issued on July 13, 1970, pending resolution of the judgment's validity. On July 29, 1972, the stay order was discharged by the trial court,
Boenning immediately reinstituted execution proceedings by securing a second writ on August 23, 1972, which it again did not index. Jennings obtained an injunction from the United States District Court for the Eastern District of Pennsylvania staying execution proceedings; in December, 1973, however, the United States Court of Appeals for the Third Circuit reversed. Jennings v. Boenning & Co., 482 F.2d 1128 (3rd Cir. 1973).
Boenning then instituted its third execution -- again, without indexing the writ -- and the property was listed for sheriff's sale on February 20, 1974. On that day, the property was also scheduled for sale as a result of foreclosure of a first mortgage held by The Equitable Life Assurance Society. The property was sold on the scheduled date pursuant to Equitable's writ, and the sum of $85,000 was realized from the sale. Certain liens for taxes, costs of execution, and the first mortgage of Equitable had undisputed priority to the proceeds of the sale. After satisfaction of these claims, the sum of $66,679.50, which was insufficient to pay the remaining creditors in full, was available for distribution. Accordingly, the matter in controversy is the validity and priority of the competing liens.
The liens being asserted against the remaining funds are as follows:
Debt Date of Lien with Interest
1. Boenning Judgment April 1966 ...