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FIRST PENNSYLVANIA BANKING AND TRUST COMPANY v. JOSEPH LIBERATI (09/19/80)

filed: September 19, 1980.

FIRST PENNSYLVANIA BANKING AND TRUST COMPANY
v.
JOSEPH LIBERATI, DEFENDANT AND TOWNSHIP OF HAVERFORD AND KASSAB, CHERRY, CURRAN & ARCHBOLD, GARNISHEES AND RELIANCE INSURANCE COMPANY AND NEW ENTERPRISE STONE & LIME CO., INC., INTERVENING DEFENDANTS. APPEAL OF RELIANCE INSURANCE COMPANY. FIRST PENNSYLVANIA BANKING AND TRUST COMPANY V. JOSEPH LIBERATI, DEFENDANT AND TOWNSHIP OF HAVERFORD AND KASSAB, CHERRY, CURRAN AND ARCHBOLD, GARNISHEES, AND RELIANCE INSURANCE COMPANY AND NEW ENTERPRISE STONE & LIME CO., INC., INTERVENING DEFENDANTS. APPEAL OF JOSEPH LIBERATI



No. 1906 October, 1978, No. 1952 October, 1978, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division, at No. 76-15484

COUNSEL

Jeanne Ward Ryan, Philadelphia, for Reliance, appellant (at No. 1906) and for appellee (at No. 1952).

Joseph R. McFadden, Jr., Media, for appellant (at No. 1952).

George Pagano, Media, for First Pennsylvania Banking, appellee.

M. Eeileen Marquette, Philadelphia, for New Enterprise Stone, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Cercone

[ 282 Pa. Super. Page 200]

The instant litigation began when First Pennsylvania Banking and Trust Company (First Pennsylvania) entered judgment by cognovit note against Joseph Liberati (Liberati) on November 12, 1976. On December 2, 1976 a Writ of Execution issued attaching property in the hands of Kassab, Cherry, Curran and Archbold allegedly belonging to the defendant. Liberati then filed a Petition to Open the judgment which was granted. Reliance Insurance Company (Reliance) followed with a Petition for Leave to Intervene on the ground that it was entitled to $25,000 of the funds in

[ 282 Pa. Super. Page 201]

    the possession of the garnishees. The petition was granted as was a similar petition by New Enterprise Stone & Lime Company. At trial on the merits a verdict was had against Liberati, to which he filed exceptions which were subsequently denied. From the denial of these exceptions Liberati appeals. The court also ruled that First Pennsylvania was entitled to the entire sum in the possession of the garnishees. Reliance filed exceptions to this ruling, which were denied. The court filed an opinion and order from which Reliance appeals. New Enterprise Stone & Lime Co. took no appeal.

The facts that brought about this appeal are as follows: On May 19, 1971, Liberati, a contractor, entered into a security agreement with First Pennsylvania whereby First Pennsylvania promised to make loans from time to time to Liberati, who in turn promised as security all his present and after-acquired accounts receivable and contract rights, as well as the proceeds therefrom, if any.*fn1 First Pennsylvania subsequently filed financing statements with the Prothonotary of Delaware County and the Secretary of the Commonwealth. By instrument dated April 30, 1975, First Pennsylvania agreed to lend Liberati the sum of $206,298.74 payable in full upon default and subsequent demand. In the interim, on April 24, 1974, Liberati and his wife Marie signed, in the presence of a notary, a Continuing Agreement of Indemnity with the intervenor-appellant, Reliance Insurance Company (Reliance). By the terms of this instrument Reliance agreed to act as surety for Liberati.

Liberati was later engaged by Haverford Township in connection with construction of a sewage system. Certain unspecified problems ...


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