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JEFFERSON BANK v. HOWARD DAVIDSON AND GWENDOLYN A. MCCURDY (06/27/86)

filed: June 27, 1986.

JEFFERSON BANK, APPELLANT,
v.
HOWARD DAVIDSON AND GWENDOLYN A. MCCURDY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil, at No. 1332 February Term, 1982.

COUNSEL

Mitchell L. Paul, Philadelphia, for appellant.

Edward J. Hayes, Philadelphia, for appellees.

Montemuro, Hoffman and Cercone, JJ.

Author: Montemuro

[ 354 Pa. Super. Page 516]

This is an appeal from an order dissolving a sheriff's sale of certain real property on the basis that no lien of judgment ever attached to the property against which the execution issued.

In December 1979, appellee Howard Davidson borrowed $20,000 from appellant bank, securing the loan with a 90 day demand note. In February, 1982, appellant entered judgment by confession on the note, and in August, 1983, initiated execution on the judgment, obtaining a writ of execution, and scheduling a sheriff's sale of real property.*fn1 However, the property had from its acquisition been titled in the name of Howard E. Davidson Associates, a general partnership. Not until April 1982, two (2) months after entry of judgment, was the property transferred to Davidson personally. In June 1982, the title passed again, this time to appellee McCurdy, who held title at the time execution was attempted, and on whose petition the sheriff's sale was stayed. The court found, inter alia, that the property was after-acquired, and that there was no valid lien against it since the judgment had not been revived or execution reissued once title had passed from the partnership. The stay was therefore entered, and this appeal followed.

Appellant has presented us with four issues, the first two challenging the legitimacy of the partnership, and the last two questioning whether the court correctly assigned to

[ 354 Pa. Super. Page 517]

    appellee McCurdy the status of a good faith purchaser for value.

The partnership issues are couched in terms of whether the court properly applied the legal standard*fn2 for determining the existence of a partnership, and then whether the evidence to be measured by the statutory test was sufficient. Appellant's thesis, around which these issues are constructed, is that the partnership was a fabrication designed to protect Davidson's property from creditors. The obvious corollary is that given the fictitious nature of the association, the property in fact belonged to Davidson alone when judgment was entered, and was therefore subject to attachment, obviating the necessity for any rejuvenative measures.

As is pointed out by both sides,

It is entrenched in the law of the Commonwealth that the existence of a partnership depends upon the intentions of the parties as to ...


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