her to so advise Massey-Ferguson. See id. Because the sole proprietorship had already begun expanded operations, the incorporation of the equipment company did not materially change the nature of Finocchiaro's enterprise. Similarly, the simple expedient of incorporation did not automatically release Marion Finocchiaro from liability on her guaranty because the change in the nature of the business entity did not work a material change in the nature of her undertaking on the guaranty.
To the extent that the other cases cited by the garnishee counsel a different result, I decline to follow them. I am aware that the facts of Wheeling Steel Corp. v. Neu, 90 F.2d 139 (8th Cir. 1937), in which the Eighth Circuit failed to look beyond the formal change in the principal debtor as effecting a release of the guarantor, closely parallels the situation here. Nevertheless, I favor the approach adopted by the Zuckerman court over the highly technical result of the Wheeling Steel decision, which I believe elevates form over substance.
I also reject the rationale of Sherman Car Wash Equipment Co. v. Maxwell, supra, 297 F. Supp. 712, but for a different reason. Notwithstanding that court's approval of the Wheeling Steel decision, I do not find Sherman Car Wash persuasive here. The Sherman Car Wash court looked to the equities of the situation, including fraud by an officer of the creditor corporation in inducing the guaranty, to hold that the guaranty did not extend to debts owed by the principal obligor to a subsidiary of the creditor, which had been incorporated several months after the guaranty had been executed. Id. at 715-16. The court therefore released the guarantors from liability for those debts which the creditor corporation had obtained by assignment from its subsidiary more than a year after the guaranty had been executed. Id. The unique facts of the Sherman Car Wash case, which resemble neither the Wheeling Steel facts nor the situation presently before me, prompt my refusal to follow the lead of the Sherman Car Wash court in approving the Wheeling Steel approach.
For the reasons outlined above, I conclude that Marion Finocchiaro's obligation on her guaranty was not extinguished by the incorporation of the equipment company, that Massey-Ferguson had a contingent claim against her on the guaranty for the unpaid debts of the corporation, and that the contingent liability existed at the time of the conveyance of the properties to the garnishee. Inasmuch as the garnishee has failed to adduce evidence that the debtor was solvent subsequent to the conveyance or that the properties were transferred for a fair consideration, see note 3 supra and accompanying text, I find that the conveyance of the properties was fraudulent as to Massey-Ferguson and is, therefore, void.
Ordinarily, a creditor may not levy on the property of a contingent debtor. See generally 39 Pa.Stat.Ann. § 360 (Purdon 1954). In this instance, however, the levy may proceed because of the cumulative effect of a unique series of events. Because the Uniform Fraudulent Conveyance Act operates to void the conveyance nunc pro tunc, the properties were held by the Finocchiaros as tenants by the entireties prior to and until the death of Marion Finocchiaro. On the death of his wife, Anthony Finocchiaro succeeded to sole ownership of the properties by operation of law, and they may be attached to satisfy his individual debts. See generally id. § 359. Accordingly, I will enter an order denying the garnishee's motion to quash the writ of execution.
The foregoing opinion constitutes the findings of fact and conclusions of law required by Rule 52(a).