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GREATER PITTSBURGH BUSINESS DEVELOPMENT CORPORATION v. MELVIN A. BRAUNSTEIN (12/15/89)

filed: December 15, 1989.

GREATER PITTSBURGH BUSINESS DEVELOPMENT CORPORATION, DEBTOR, PHILIP E. BEARD, TRUSTEE, APPELLEE,
v.
MELVIN A. BRAUNSTEIN, AN INDIVIDUAL D/B/A M.A. BRAUNSTEIN COMPANY, APPELLANT



Appeal from the order entered April 14, 1988 in the Court of Common Pleas of Allegheny County, Civil No. G.D. 87-11883.

COUNSEL

David Abrams, Pittsburgh, for appellant.

Paul R. Rennie, Pittsburgh, for appellee.

Olszewski, Montemuro and Kelly, JJ.

Author: Kelly

[ 390 Pa. Super. Page 455]

In this opinion, we are called upon to determine whether the trial court erred when it denied a petition to set aside a sheriff's sale of personalty which had alleged that the price was grossly inadequate; that the personalty was described in a vague manner; that the applicable notice provisions of the Pennsylvania Rules of Civil Procedure were not followed;

[ 390 Pa. Super. Page 456]

    and, that the applicant's due process rights were violated. We affirm the order of the trial court.

The facts and procedural history may be summarized as follows. Appellee, Greater Pittsburgh Business Development Corporation, ("Corporation"), through its trustee, Philip E. Beard, filed an action in the United States Bankruptcy Court for the Western District of Pennsylvania against Melvin A. Braunstein, an individual d/b/a M.A. Braunstein Company, ("Braunstein"), a scrap and salvage dealer, to recover certain rents due for property rented by Braunstein. On April 20, 1987, an order was entered in the Bankruptcy Court in favor of the Corporation and against Braunstein in the amount of $81,948.32. Braunstein appealed; however, no bond was posted to stay execution.

A judgment roll of the Bankruptcy Court judgment was recorded with the Court of Common Pleas of Allegheny County on July 8, 1987, and on September 8, 1987, the Corporation filed its writ of execution. The Deputy Sheriff of Allegheny County levied upon Braunstein's personal property in October of 1987. On November 10, 1987, Braunstein filed a motion to compel the sale of the personal property on an item by item basis, which was denied. A sheriff's sale was scheduled for November 12, 1987, but was postponed until January 27, 1988. On that date, at the time scheduled for the sale, counsel for the Corporation requested postponement. The Deputy Sheriff then announced that the sale would be rescheduled for February 3, 1988. The sheriff's sale was conducted on February 3, 1988, and concluded for the price of $2350.00. On February 5, 1988, Braunstein filed a motion to set aside the sheriff sale. The Corporation filed a reply to Braunstein's motion. On March 3, 1988, the trial court denied Braunstein's motion and its order was entered on the docket.

On April 12, 1988, Braunstein filed a motion to vacate, reconsider, or redocket the trial court's order of March 3, 1988, alleging that he did not receive notice of the entry of the order and requesting the trial court to vacate, reconsider and/or redocket the order to preserve his appellate

[ 390 Pa. Super. Page 457]

    rights. On April 14, 1988, the Corporation filed a reply in which it was acknowledged that notice of the order entered March 3, 1988, was not received in the mail, but alleged that the notice published in the Pittsburgh Legal Journal on March 9, 1988, was an adequate substitute. On April 15, 1988, the court entered an order which vacated the March 3, 1988 order, and which denied Braunstein's motion to set aside the sheriff's sale. On May 11, 1988, Braunstein filed this appeal.

Review of the docket reveals that notice of the entry of the March 3, 1988 order was not sent to the parties as required by Pa.R.C.P. 236(b). A proper appeal could not be filed until the court entered its April 15, 1988 order and notice was properly sent to the parties. See Speight v. Burens, 371 Pa. Super. 478, 481 n. 3, 538 A.2d 542, 543 n. 3 (1988); Estate of Keefauver, 359 Pa. Super. 336, 338-339, 518 A.2d 1263, 1264-1265 (1986); see also Pa.R.A.P. 903(a) and 108(b); Pa.R.C.P. 236(b). Hence, we find the appeal to have been timely.

On appeal, Braunstein raises the following issue for our consideration:

Whether the lower court erred in denying issuance to Melvin A. Braunstein d/b/a M.A. Braunstein Company of a rule to show cause why sheriff's sale of personal property should not be set aside, where Melvin A. Braunstein has asserted errors in the levy, post-levy, and conduct of sale on the personal property of Melvin A. Braunstein as well as a constitutional infirmity in the ...


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