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DAUPHIN DEPOSIT BANK AND TRUST COMPANY v. WM. B. TENNY (03/06/81)

filed: March 6, 1981.

DAUPHIN DEPOSIT BANK AND TRUST COMPANY, WM. B. TENNY, PARTY IN INTEREST
v.
WM. B. TENNY, INC., DEFENDANT. APPEAL OF WM. B. TENNY, PARTY IN INTEREST



No. 2489 October Term, 1978, Appeal from Final Order of the Court of Common Pleas of Cumberland County, Pennsylvania, dismissing Petition to Set Aside Sheriff's Sale. C.P.-Civil Act., Law - No. 446 of 1978

COUNSEL

Wm. B. Tenny, Camp Hill, appellant, in pro. per.

James D. Flower, Carlisle, for appellee.

Spaeth, Sugerman and Stranahan, JJ.*fn*

Author: Stranahan

[ 285 Pa. Super. Page 138]

This matter is an appeal from an order of the Court of Common Pleas of Cumberland County dismissing the appellant's petition to set aside a sheriff's sale of property owned by the defendant. We affirm that order.

This case arose out of the following facts: On February 9, 1977, the Dauphin Deposit Bank and Trust Company (hereinafter Dauphin) filed a complaint in mortgage foreclosure against a segment of residential property owned by Wm. B. Tenny, Inc., and located at 2309-2311 Market Street, Camp Hill, Pennsylvania. After depositions were taken, Dauphin filed a motion for summary judgment. That motion was granted. Wm. B. Tenny, Inc., appealed that decision. That appeal was quashed by the superior court.

After the appeal by Wm. B. Tenny, Inc. was quashed, Dauphin filed a writ of execution against the property. The property was sold at a sheriff's sale on June 15, 1978 to Dauphin.

On July 3, 1978, Wm. B. Tenny filed a mechanics' lien against the property sold to Dauphin at the sheriff's sale.*fn1 Mr. Tenny's mechanics' lien was for alterations and repairs he had allegedly made to the property from 1972 to 1978 and it claimed an effective priority date of August 26, 1971.

Two days later, Mr. Tenny filed a petition to set aside the sheriff's sale. In his petition, Mr. Tenny asserted that he was a party in interest on the basis of the mechanics' lien he had filed on July 3, 1978, and that his interest in the property was superior to that of Dauphin's mortgage interest in the property.

[ 285 Pa. Super. Page 139]

Mr. Tenny's petition did not contain a request for a rule to show cause.

Dauphin did not file an answer to Mr. Tenny's petition. Instead, Dauphin filed a petition and rule to show cause why Mr. Tenny's petition should not be stricken or dismissed for failure to conform to law. In its petition, Dauphin alleged that Mr. Tenny was not a party in interest because his mechanics' lien did not take effect and have priority until it was filed.*fn2 Hence, Dauphin asserted, ...


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