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VEND-A-MATIC v. FRANKFORD TRUST COMPANY AND FOTIAS H. MALITAS (03/12/82)

filed: March 12, 1982.

VEND-A-MATIC, INC., APPELLANT,
v.
FRANKFORD TRUST COMPANY AND FOTIAS H. MALITAS



No. 128 Philadelphia, 1980, Appeal from Order of Court of Common Pleas of Philadelphia County, Civil Division, at No. 3574 August Term, 1978.

COUNSEL

Milton Becket, Philadelphia, for appellant.

H. Kenneth Tull, Philadelphia, for appellees.

Price, Watkins and Montgomery, JJ. Price, J., did not participate in the decision of this case.

Author: Watkins

[ 296 Pa. Super. Page 494]

This case comes to us on appeal from the Court of Common Pleas of Philadelphia and involves plaintiff-appellant's appeal from an order of the trial court which granted summary judgment to the defendants.

Plaintiff-appellant had filed a Complaint to Quiet Title against both defendants on August 23, 1978 alleging that through the willful and deliberate conduct of the defendant-bank, plaintiff never had received notice of a Sheriff's sale of a piece of real estate which the plaintiff owned. Plaintiff requested that the Sheriff sale of the real estate be set aside, that the Sheriff's deed conveying the real estate be cancelled and that plaintiff be declared the owner of same. Both defendants filed motions for summary judgment independent of each other. Both motions were ultimately granted and plaintiff has appealed from the order of court granting said summary judgments.

The real estate in question, situated at 5233-45 Torresdale Avenue, Philadelphia, Pennsylvania was acquired by the plaintiff on January 18, 1974. Plaintiff obtained a $20,000 mortgage on the property through Frankford Trust Company on the same date. Plaintiff then defaulted on the mortgage by failing to pay the required monthly installments when due. The defendant bank then initiated foreclosure

[ 296 Pa. Super. Page 495]

    proceedings on the mortgage which initially went to judgment on May 3, 1977. On May 8, 1978, the defendant bank filed a second Writ of Execution pursuant to which a Sheriff's Sale was held. The defendant bank was the successful bidder at the sale and subsequently conveyed the real estate to Malitas by deed which was recorded on August 27, 1978. Plaintiff contends that the defendant bank failed to comply with Pa. Rule Civil Procedure 3129 and for that reason the Sheriff Sale was invalid.

Pa. Rule Civil Procedure 3129 provides as follows:

NOTICE OF SALE. REAL PROPERTY

(a) No writ of execution to sell real property shall issue upon a judgment until the plaintiff or some person on his behalf has filed of record with the prothonotary an affidavit setting forth to the best of his knowledge, information and belief the name and last known address of the owner or reputed owner and of the defendant in judgment. A copy of the affidavit shall be delivered to the sheriff together with the writ of execution. If after a good faith investigation the name of the owner or ...


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