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SIDNEY M. DEANGELIS v. SANDRA SCHULTZ NEWMAN (02/10/86)

filed: February 10, 1986.

SIDNEY M. DEANGELIS, APPELLANT,
v.
SANDRA SCHULTZ NEWMAN, RECEIVER OF THE FOERDERER TRACT COMMITTEE, INC.



Appeal from the Orders of the Court of Common Pleas, Civil Division, of Montgomery County at No. 80-06890.

COUNSEL

Sidney M. DeAngelis, Norristown, appellant, in pro. per.

Marvin L. Wilenzik, Norristown, for appellee.

Wickersham, Brosky and Tamilia, JJ.

Author: Wickersham

[ 350 Pa. Super. Page 538]

This is an appeal from the orders of the Court of Common Pleas of Montgomery County which sustained preliminary objections to appellant's complaint in equity, dismissed two motions to amend the complaint, and denied appellant's petition for taxable costs.

This case has a long and complicated history. Numerous suits, most of which include the same parties, have been spawned by the underlying facts.*fn1 The instant suit has already once been before both our court and the supreme court and now returns to us from the trial court. Our

[ 350 Pa. Super. Page 539]

    sincere hope, albeit a futile one, is that its current appearance before this court is its last.

The parties agree on many of the underlying facts. On February 4, 1974, appellant Sidney DeAngelis, an attorney, entered into a written agreement to purchase approximately thirty-six acres of land from a non-profit corporation known as the Foerderer Tract Committee (hereinafter "Committee"). For this land, located in Lower Merion Township, Montgomery County, appellant made a down payment of $65,000.00. The agreement was duly recorded by the Recorder of Deeds. The Foerderer Tract consisted of some 150 acres in total, and was being sold by the Committee to purchasers for home sites. The Tract was encumbered by a first mortgage recorded on November 6, 1972, in favor of First Pennsylvania Bank N.A. (hereinafter "Bank").

Subsequently, the Committee defaulted, the Bank commenced foreclosure proceedings, and a sale of the entire Tract was scheduled for November 27, 1974. Several creditors of the Committee successfully petitioned the court to stay the foreclosure proceedings and to appoint a temporary Receiver for the Committee. On November 22, 1974, appellee Sandra Newman, also an attorney, was appointed temporary Receiver. Both sides filed further petitions, which culminated in an order on July 28, 1977, continuing the stay of the foreclosure proceedings and appointing appellee as the Liquidating Receiver of the assets of the Committee, including the real estate in question. As Receiver, appellee was to dispose of the Tract and accumulate from its sale a fund to be used to pay the creditors of the Committee.

Attempts to sell the Tract from 1975 to 1978 proved unsuccessful, and while our court affirmed the order appointing appellee as receiver on February 16, 1979, we granted appellee a period of one year from the date of publication of our opinion in which to sell the Tract. Should appellee have failed to find a purchaser, her receivership would have terminated and the sheriff's sale promoted by the Bank would have taken place. Bogosian v. Foerderer Tract Committee, 264 Pa. Super. 84, 399 A.2d 408 (1979).

[ 350 Pa. Super. Page 540]

Shortly thereafter, appellee located a buyer and in May of 1979, she requested permission of the lower court to sell the entire Tract to Realty Engineering Co. (hereinafter "Realty"). This agreement of sale included the parcel of land which was the subject of appellant's agreement of sale.

Following a hearing, the lower court gave its permission to sell and appellee entered into negotiations with the Bank, whereby she secured from them an assignment of their 1972 mortgage on the Tract in exchange for a promise to pay them a set sum out of the proceeds of the sale to Realty. Then, in order to convey clear and marketable title to Realty, appellee, as mortgagee/owner, commenced a foreclosure proceeding. Accordingly, appellee scheduled a sheriff's and receiver's sale on the entire Tract. After being postponed twice, the sale was held in September of 1979, at which time appellant appeared and made an oral motion to stay the sale. The court dismissed the motion, the sale continued, and appellee was the successful bidder. Following the expiration of the time to file a petition to set aside the sale, the sheriff prepared a proposed schedule of distribution. Appellant filed exceptions to the proposed schedule. After a hearing, the lower court dismissed the exceptions on November 23, 1979. Our court dismissed his subsequent appeal on the grounds that appellant lacked standing to except to the sheriff's schedule of distribution because he was not a lienholder. See First Pennsylvania Bank v. Weber, 283 Pa. Super. 614, 427 A.2d 1195 (1980) (per curiam). After the supreme court refused his petition for allowance of appeal, the sale to Realty was scheduled for settlement on April 30, 1980. The Tract was sold at that time or shortly thereafter.

On April 24, 1980, appellant filed a complaint in equity seeking specific performance of his ...


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