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FIRST PENNSYLVANIA SAVINGS ASSOCIATION v. FOUR SEASONS RACQUET CLUB (05/15/81)

filed: May 15, 1981.

FIRST PENNSYLVANIA SAVINGS ASSOCIATION, FORMERLY KNOWN AS TROY SAVINGS AND LOAN ASSOCIATION, APPELLANT,
v.
FOUR SEASONS RACQUET CLUB, INC., WILLIAM F. CHOLTKO, JANICE M. OLSZEWSKI, JAMES A. HUET AND CAROL T. HUET, HIS WIFE



No. 329 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Division at No. x1121 of 1979.

COUNSEL

Florie Goldhammer, Pittsburgh, for appellant.

Edgar J. Cooke, Bellevue, for appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 287 Pa. Super. Page 181]

This is a deficiency judgment action. On petition to fix fair market value, the lower court, sitting without a jury, fixed the value of the property at $300,000. On exceptions, the court en banc fixed the value at $375,000. We have concluded that we are unable to accept the court's explanation of the change and that the case must therefore be remanded for reconsideration.

[ 287 Pa. Super. Page 182]

On July 2, 1979, appellant bought the property at sheriff's sale for $1,938.18. Interest and other charges were $5,472.74, and taxes were $2,143.78. On October 12, appellant filed a petition to fix fair market value, claiming the value to be $210,000. In their answer to the petition, appellees claimed the value to be $450,000. On October 26, the lower court held a hearing, without a jury, and on November 2, fixed the value at $300,000. Appellees filed exceptions, which were argued to the court en banc on February 29, 1980. On March 14, 1980, the court sustained the exceptions and fixed the value at $375,000. Appellant argues that we should vacate the court en banc's determination of value and reinstate the trial judge's determination.

At the conclusion of the testimony the trial judge made the following statement:

The Court is going to fix the fair market value for the property, land and buildings, and this is based upon in addition to the testimony of all the witnesses, in particular Mr. Reilly's [sic; Rielly]*fn1 testimony concerning the depressed real estate market which I'm sure he didn't need to testify to (everybody's aware of it) and [sic; at?] three hundred thousand dollars, and I'll file an order and you gentlemen will receive copies of it. That's all.

(N.T. 36)

This finding did not have the effect of preventing the trial judge from changing his mind. A judge who as trial judge makes a finding of fact may later as a member of a court en banc join in making a contrary finding, so long as the contrary finding is supported by sufficient evidence. McClements v. McClements, 411 Pa. 257, 191 A.2d 814 (1963); Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 ...


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