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[U] Byers v. Liggett

Superior Court of Pennsylvania

November 15, 2013

STEPHEN J. BYERS
v.
ERNEST E. LIGGETT AND MARILYN KOSTIK LIGGETT, Appellants STEPHEN J. BYERS
v.
ERNEST E. LIGGETT AND MARILYN KOSTIK LIGGETT, Appellants STEPHEN J. BYERS
v.
ERNEST E. LIGGETT AND MARILYN KOSTIK LIGGETT, Appellants

NON-PRECEDENTIAL DECISION

Appeal from the Order, June 29, 2012, in the Court of Common Pleas of Allegheny County Civil Division at No. GD09-013539

Appeal from the Order Dated September 24, 2012, in the Court of Common Pleas of Allegheny County Civil Division at No. GD-09-13539

Appeal from the Order, September 27, 2012, in the Court of Common Pleas of Allegheny County Civil Division at No. GD-09-013539

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

These are consolidated appeals. The appeal at No. 1176 WDA 2012 is from the order of June 29, 2012, by the Honorable Judith L.A. Friedman, granting appellee's "Motion for Appeal Bond, or in the Alternative, to Set a Date for Sheriff Sale." The appeal at No. 1485 WDA 2012 is from the order of September 24, 2012, by the Honorable Alan D. Hertzberg, granting appellee's Motion to Confirm Date for Sheriff Sale. The appeal at No. 1572 WDA 2012 is also from an order of Judge Hertzberg's, the September 27, 2012 order denying appellants' Emergency Motion to Void Judgment and Stop Sheriff Sale. There was also a separate appeal at No. 229 WDA 2012 from another order of Judge Friedman's, the January 9, 2012 order denying appellants' Petition for Leave to Appeal Nunc Pro Tunc, in which they also sought to open the underlying judgment.

In his November 26, 2012 opinion filed at No. 1485 WDA 2012, Judge Hertzberg has aptly summarized the history of this case as follows:

This dispute arises from plans by [appellants] Ernest E. Liggett and Marilyn K. Liggett [] for a real estate development in Brownsville, Fayette County. After acquiring various parcels of real property in Brownsville since at least 1996, in the fall of 2006 [appellants] obtained short term loans from [appellee] and also his agreement to purchase additional Brownsville real property for use by [appellants] in their development. [Appellants] failed to repay the loans or purchase the real property from [appellee] within the agreed upon time frame, and in June of 2007 [appellee] filed a lawsuit in the Court of Common Pleas of Fayette County against [appellants] averring fraud and breach of contract. At the June, 2008 Pre-Trial Conference presided over by Judge Gerald R. Solomon, counsel for both parties placed a settlement agreement on the record that required [appellants] to either pay [appellee] $95, 000 within forty-five days or have judgment entered against them in the amount of $145, 500.
When [appellants] did not pay [appellee] any money in the next forty-five days, [appellee] entered judgment in Fayette County for $145, 500. In July of 2009 [appellee] initiated the subject proceedings by having the judgment transferred to Allegheny County through the filing in Allegheny County of a certified copy of the docket and judgment from the Fayette County proceedings. See Pa.R.C.P. Nos. 3001-3003. [Appellee] then had a Writ of Execution issued for sale of the personalty and realty of [appellants] located at 43 Bowstone Road, Pittsburgh, Allegheny County, Pennsylvania 15235. The Sheriff Sale was first scheduled for November of 2011, but [appellants] requested a stay, claiming, among other things, that the parties were engaged in mediation of their dispute. As a result, Judge Robert J. Colville of this Court postponed the Sheriff Sale to March of 2012.
In January of 2012, [appellants] requested that the $145, 500 judgment entered in Fayette County in August of 2008 be opened, a trial be scheduled and the Sheriff Sale be stayed.[Footnote 1] Among other reasons for this request by [appellants] was a claim that their attorney in the Fayette County proceedings provided them with negligent representation. Judge Judith L.A. Friedman of this Court denied [appellants'] request, which denial [appellants] appealed to the Superior Court of Pennsylvania at docket no. 229 WDA 2012. This first appeal by [appellants] appears to have caused postponement of the March, 2012 Sheriff Sale. In June of 2012, Judge Friedman ordered [appellants] to post security of 120 percent of the judgment to stay execution pending the appeal, or their real and personal property would be sold at the next Sheriff Sale. [Appellants] also appealed from this June, 2012 Order to the Superior Court of Pennsylvania at docket no. 1176 WDA 2012. Judge Friedman has filed Opinions relative to both appeals.
[Appellee] scheduled the Sheriff Sale for October of 2012, but the Sheriff informed [appellee] that, because [appellants] had appealed from Judge Friedman's order directing the Sheriff Sale, the Sheriff Sale would again be postponed. In an attempt to avoid another postponement of the Sheriff Sale, [appellee] requested that, in the absence of [appellants] posting 120 percent security, I confirm that [appellants'] property would be sold at the October, 2012 Sheriff Sale. I granted [appellee]'s request[Footnote 2], which [appellants] appealed to the Superior Court of Pennsylvania as the third appeal[Footnote 3] from an order in these proceedings.
[Footnote 1] [Appellants] incorrectly titled the document that requested this relief "Petition for Leave to Appeal Nunc Pro Tunc."
[Footnote 2] Mr. Liggett ultimately succeeded in having the October, 2012 Sheriff Sale postponed by filing a bankruptcy petition two days before the sale.
[Footnote 3] [Appellants] actually filed a fourth appeal to the Superior Court of Pennsylvania at no. 1572 WDA 2012 which will be addressed in a separate Opinion that I will file around December 14, 2012.

Trial court opinion, No. 1485 WDA 2012, 11/26/12 at 1-3.

In their fourth appeal, at No. 1572 WDA 2012, appellants appealed the denial of their Emergency Motion to Void Judgment and Stop Sheriff Sale. Judge Hertzberg filed an opinion addressing that order on December 14, 2012. In addition, since their appeals in this matter, the Liggetts have filed with this court a "Motion to Compel Immediate Decision to Obviate Sale, " on September 16, 2013, and an "Application for Expedited Injunctive Relief, " on October 2, 2013.

Having determined that the opinions by Judge Friedman and Judge Hertzberg ably and comprehensively dispose of appellants' issues on appeal, with appropriate reference to the record and without legal error, we will affirm on the basis of those opinions.

Orders affirmed. Appellants' Motion to Compel Immediate Decision to Obviate Sale, filed September 16, 2013 is denied. Appellants' Application for Expedited Injunctive Relief, filed October 2, 2013 is denied.

Judgment Entered.


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