No. 434 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action, of Monroe County, October Term, 1975, No. 976
Edwin Krawitz, East Stroudsburg, for appellant.
C. Daniel Higgins, Stroudsburg, for appellee.
Brosky, Popovich and Montgomery, JJ.
[ 294 Pa. Super. Page 499]
The Plaintiff-Appellee, Community Association of Pocono Farms, Incorporated (hereinafter referred to as the "Association"), had a judgment against the Defendant, Recra-Del Corporation, and filed execution proceedings against real estate owned by Recra-Del in order to enforce payment of the judgment. The judgment in question created a lien on 294 lots which were situated in 2 developments known as Pocono Farms and Smokey Ridge. Pursuant to the writ of execution, the Monroe County Sheriff had advertised the aforesaid lots for sale. The Appellants, Kenneth and Helen Brush, had acquired beneficial title from Recra-Del Corporation to 49 of the 294 lots which were all subject to the lien of the Appellee's judgment. The Appellants filed a petition in the lower court requesting a stay of the execution and the release of their 49 lots from attachment and execution.
[ 294 Pa. Super. Page 500]
They contended that the value of the total property attached by the Association, and scheduled for sale, was excessive in comparison to the amount of the Association's judgment against Recra-Del Corporation.
The lower court held a hearing on the Appellants' petition, and expert witnesses testified for both the Appellants and the Appellee concerning the fair market value of the property subject to the Appellee's execution. After hearing all of the evidence, the lower court denied the Appellants' petition to except their 49 lots from the execution sale, and further directed the sheriff to proceed with that sale. On this appeal, the Appellants contend that the lower court erred in determining the value of the property by disregarding evidence offered by the Appellants which purportedly established a value for the water system servicing the property. We must disagree.
Applicable practice would clearly allow the lower court to provide for the release of property from attachment and execution if good cause is shown. We find two Rules of Civil Procedure particularly relevant in the circumstances of the instant case. Rule 1272, dealing with attachment of property, provides the following in subsection (h):
"The court on petition of any party may, at any time after notice and hearing, release part of the attached property if the value of the property attached is excessive compared to the amount in controversy."
In Vant v. Gish, 412 Pa. 359, 194 A.2d 522 (1963), our Supreme Court stated that the intention of Rule 1272(h) is: ". . . plainly to prevent a situation in which a plaintiff attaches property of a defendant many times in excess of even the most optimistic possible recovery". (emphasis added) 412 Pa. at 369, 194 A.2d at 528. Rule 3119 deals with the release of property from levy, and provides that upon good cause shown, and the petition of any person or party in interest, the court may: "(2) release part of the property, if the value of the property levied upon is excessive compared to the amount of the ...