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EDWARD G. BOGOSIAN AND KATHY A. BOGOSIAN v. FOERDERER TRACT COMMITTEE (02/16/79)

decided: February 16, 1979.

EDWARD G. BOGOSIAN AND KATHY A. BOGOSIAN
v.
FOERDERER TRACT COMMITTEE, INC. IN THE MATTER OF FOERDERER TRACT COMMITTEE, INC. APPEALS OF FIRST PENNSYLVANIA BANK N. A.



No. 2255 October Term, 1977, No. 520 October Term, 1978, Consolidated Appeals from the Adjudication Dated July 28, 1977 and the Opinion Sur Exceptions Dated November 21, 1977 of the Court of Common Pleas of Montgomery County, Civil Action-Law at No. 74-14866.

COUNSEL

J. Dennis Faucher, Philadelphia, for appellant.

Marvin L. Wilenzik, Norristown, for appellee, Sandra S. Newman.

No appearance entered nor brief filed for appellees, Charles and Norma Ferrante, George and Linda Familgio; John T. and Georgia Biezup, Eagson Corp., Tredmont Development Corp. and Edward G. and Kathy A. Bogosian.

Cercone, Spaeth and Lipez, JJ.

Author: Cercone

[ 264 Pa. Super. Page 87]

The two appeals before us were consolidated for our consideration. The first appeal is from a Decree Nisi entered

[ 264 Pa. Super. Page 88]

    by the Court of Common Pleas of Montgomery County on July 28, 1977, appointing a liquidating receiver with the power and duty to dispose of real estate known as the Foerderer Tract. The second appeal is from the final decree of the lower court, entered on November 21, 1977, affirming the Decree Nisi after exceptions had been filed and argument heard by the court en banc.

Preliminarily, we quash the first appeal from the Decree Nisi, docketed at No. 2255 October Term, 1977. A decree nisi is a non-appealable interlocutory order. Such an adjudication is filed in order to give the parties an opportunity to object and reargue the issues. The right of appeal then lies from the final decree entered by the court. Patrick & Wilkins Co. v. Adams, 456 Pa. 566, 322 A.2d 341 (1974); Lafayette Radio Electronics Corp. of Monroeville v. Jonnet Enterprises, Inc., 435 Pa. 49, 255 A.2d 533 (1969); Cooney v. Pa. Osteopathics Assoc., 434 Pa. 358, 253 A.2d 256 (1969); Sessa v. Melnick, 420 Pa. 257, 216 A.2d 56 (1966). Since appellant also appealed from the final decree of November 21, 1977, the quashing of the first appeal does not affect our disposition of this case. See Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975). We affirm the final decree of the lower court with modification.

The pertinent facts that lead to this appeal are as follows: The real estate which is the subject of this appeal is known as the Foerderer Tract. The Foerderer Tract Committee, Inc. was established as a non-profit corporation for the purpose of purchasing this tract from Villanova University. A mortgage and mortgage note exist in favor of First Pennsylvania Bank from the Foerderer Tract Committee, Inc., (FTC), upon which FTC defaulted. The Bank issued a Writ of Execution and sale of the real estate was scheduled for November 27, 1974. However, prior to the date of the scheduled sheriff's sale, the Bogosians, the appellees herein, filed a petition for the appointment of a receiver pendente lite for the assets of the Foerderer Tract Committee pursuant to the Domestic Nonprofit Corporation Law, section

[ 264 Pa. Super. Page 897982]

.*fn1 They claimed they were creditors of the FTC and that the mortgaged premises were part of the assets which were being wasted and required receivership protections. The judicial sale of the real estate was stayed and a temporary receiver was appointed by orders of the lower court in late November, 1974. No appeal was filed from these orders.

In February, 1975, the Bank filed a petition for the Abandonment and Termination of the Stay of the Sheriffs' Sale on the grounds that the value of the mortgaged premises was less than the debt secured by the first mortgage. In February, 1976, the Bogosians filed an amended petition for the appointment of a liquidating receiver. Hearings on both the Bank's and the Bogosians' petitions were held and resulted in the decree nisi and final decree, appointing and affirming*fn2 a liquidating receiver, from which this appeal flows.

Appellant raises four issues on appeal. First whether the lower court erred in appointing a liquidating receiver; second, whether there was sufficient evidence to support the court's conclusion that the fair market value of the real estate was $35,000 per acre; third, whether a liquidating receiver has power to sell real estate free of the bank's first mortgage lien; fourth, ...


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