No. 2167 October Term, 1976, Appeal from Opinion and Order, Dated July 12, 1976, in the Court of Common Pleas of Northumberland County, Civil Action-Law at No. 58 December Term, 1971 and No. 8 May Term 1974.
Daniel J. Clement, with him Clement & Knight, Lewisburg, for appellant.
Patrick H. Fierro, Williamsport, submitted a brief for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., joins in Part I of this majority opinion. Van der Voort and Spaeth, JJ., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 306]
This appeal arises from an order of the Court of Common Pleas of Northumberland County, wherein the court satisfied and discharged a deficiency judgment entered against defendant and set the fair market value of the property in question at $17,000. We affirm the order of the lower court.
[ 256 Pa. Super. Page 307]
Judgment for the plaintiff in an assumpsit suit was entered, based on a jury verdict, for the amount of $17,703.85 plus interest and costs. Plaintiff proceeded with a writ of execution, and real property of the defendant was sold to plaintiff as the successful bidder at a sheriff's sale on May 28, 1975. That same day, counsel for the plaintiff picked up the deed form from the sheriff in order to prepare the deed. Approximately nine months later, defendant petitioned under the Deficiency Judgment Act*fn1 to have the judgment satisfied and discharged, arguing that plaintiff failed to petition to have the fair market value of the real estate determined within six months of the sheriff's sale.*fn2 Plaintiff then petitioned to fix the fair market value of the property at $3,800. Defendant did not answer plaintiff's petition. The hearings on both petitions were consolidated, and the lower court granted defendant's petition for deficiency judgment and fixed the fair market value of the property at $17,000 according to defendant's expert testimony.
Plaintiff appeals these rulings and raises two issues: first, whether the lower court erred in holding plaintiff's judgment satisfied and discharged for not filing a petition to fix the fair market value within six months after the sheriff's sale of the property; and second, whether the fair market value of the property should have been fixed according to plaintiff's petition where there was no answer filed by defendant.
In the instant case, the record reveals that counsel for plaintiff picked up the deed form from the sheriff on the date of the sale, May 28, 1975. He then decided not to have the deed delivered due to the Pennsylvania Supreme Court decision in Luskey v. Steffron, 461 Pa. 305, 336 A.2d 298 (1975) decided April 17, 1975. In Luskey, the Court held the notice provision which governs sheriffs sales, Pa.R.C.P. 3129, did not satisfy the due process requirements of the United
[ 256 Pa. Super. Page 308]
States Constitution. Reargument was granted on the Luskey case for May 9, 1975. Due to the uncertainty of the law concerning sheriffs sales at that time, some counties discontinued all sheriffs sales as they awaited future pronouncements on the validity of the practice then in use. See Comment to Pa.R.C.P. 3129 (1975).*fn3 Appellant argues that this uncertainty in the law was a sufficient excuse for him to delay the execution and delivery of the sheriff's deed.
The Deficiency Judgment Act requires the plaintiff who purchases real property of the defendant in an execution proceeding to file, within six months after the sale of real property, a petition to fix the fair market value of the property. 12 P.S. § 2621.7. Failure to file this petition results in the debt being released and discharged. 12 P.S. § 2621.7a. In Marx Realty and Improvement Co. v. Boulevard Center, Inc., 398 Pa. 1, 156 A.2d 827 (1959), our Supreme Court held that, for the purposes of the duty to file a petition to fix fair market value, the six month period begins from the date the sheriff's deed is executed and delivered to the successful bidder. In Marx Realty, supra, the sheriff's deed was delivered ...