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JOHN W. MERRIAM v. CEDARBROOK REALTY (12/29/78)

decided: December 29, 1978.

JOHN W. MERRIAM
v.
CEDARBROOK REALTY, INC. AND WITCHWOOD, INC. AND CEDARBROOK JOINT VENTURE, DEFENDANTS, MERRILL TAUB AND ANTHONY H. HARWOOD, TRUSTEES FOR INSTITUTIONAL INVESTORS TRUST, INTERVENOR AND THE FIDELITY BANK, INTERVENOR. APPEAL OF MERRILL TAUB AND ANTHONY H. HARWOOD, TRUSTEES FOR INSTITUTIONAL INVESTORS TRUST, INTERVENOR



No. 2063 October Term, 1978, Appeal from the Order dated July 25, 1978, by the Court of Common Pleas of Montgomery County, Pennsylvania, C.A. No. 76-10511. - Civil Action, Law.

COUNSEL

Jerome J. Shestack, Philadelphia, for appellants.

Jeffrey A. Less, Philadelphia, for appellee, John W. Merriam.

No appearance entered nor brief submitted for appellee, The Fidelity Bank, intervenor.

Jacobs, President Judge, and Cercone and Lipez, JJ.

Author: Jacobs

[ 266 Pa. Super. Page 272]

This appeal is taken from an order of the court below dismissing the petition of Institutional Investors Trust (IIT) to mark a judgment entered by Merriam satisfied under the Deficiency Judgment Act.*fn1 The issue for our determination is whether the lower court erred in dismissing the petition on the record before it. For the reasons that follow, we find no error, and therefore affirm the order entered below.

On June 30, 1976, Merriam confessed judgment against defendants (the Cedarbrook Companies) for an amount in excess of ten million dollars, under a note and mortgage assigned to him by the Fidelity Bank (Fidelity). A writ of execution was subsequently issued on the judgment, and a sheriff's sale was scheduled for four tracts of land owned by defendants. IIT sought to intervene in the proceedings to seek a stay of execution as to two of the four tracts, alleging that their sale was barred by an agreement executed between IIT and Fidelity. Although IIT was not permitted to intervene, it obtained two stays of execution from this Court as to the contested tracts, pending appeal from the denial of intervention.*fn2 Merriam proceeded with execution sale of the remaining properties, and was the successful bidder as lien creditor for $250,000.

On June 15, 1977, IIT petitioned the court below to set aside Merriam's bid under Pa.R.C.P. 3132, and to direct a

[ 266 Pa. Super. Page 273]

    sale of the two tracts to IIT as second bidder for failure of Merriam to consummate the purchase. After an answer was filed by Merriam, the court below ordered the matter to argument, after the taking of depositions, if necessary. Then on February 10, 1978, IIT filed the instant petition to mark Merriam's judgment satisfied under the Deficiency Judgment Act. Merriam answered this petition, and later moved for judgment on the pleadings. The two petitions were consolidated for argument, and after a hearing in the court below, Judge CIRILLO dismissed IIT's petition to mark Merriam's judgment satisfied.*fn3 This appeal followed.

The Deficiency Judgment Act provides:

Whenever any real property has heretofore been or is hereafter sold, directly or indirectly, to the plaintiff in execution proceedings and the price for which such property has been sold was or is not sufficient to satisfy the amount of the judgment, interest and costs and the plaintiff seeks to collect the balance due on said judgment, interest and costs, the plaintiff or plaintiffs shall petition the court having jurisdiction to fix the fair market value of the real property sold as aforesaid. Said ...


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