Doherty v. Adal Corp. , 437 Pa. 109 ( 1970 )

Dissenting Opinion by

Mr. Justice Roberts:

I must respectfully dissent from the majority’s decision to affirm the trial court’s decree. This is not, as the majority asserts, a case where we are called upon to contradict the meaning given by a local court to a local rule. The trial court found that “defendant was at no time furnished any address for plaintiff other than the mortgaged premises” and that “defendant did not know nor have any reason to know of what was allegedly plaintiff’s true address.” It is clear to me from reading the local rules, as well as the trial court’s opinion, that if the facts were as the trial court found, the local rule was complied with. If they were not, however, it is equally clear that the local rule was not complied with. The requirement of sending notice to the owner would have no meaning if the defendant was not required to send the notice to what he knew to be the owner’s true address. Thus the question before us is whether the trial court acted properly in finding that the defendant did not know the plaintiff’s true address.

I think the answer to this question is clearly no. Adal was an assignee of the Savings & Loan Association of South Philadelphia. As such, it stood in the assignor’s shoes and must be held to all the assignor knew. The assignor, quite obviously, knew the plaintiff’s true address ; it was in their records and they had often communicated with plaintiff by sending mail to that address. Further, the premises to which the defendant sent the notices were unoccupied—and had been ever since the plaintiff purchased them some nine years before. Plaintiff, on the other hand, had been residing at the address listed on the assignor’s records continuously since 1919. In tills posture, the trial court was clearly in error when it concluded that the “defendant did not know or have any reason to know” plaintiff’s true address. Thus there was no compliance by the defendant with the notice requirement.

When notice of a sheriff’s sale has not been properly given, the sale must be set aside. See First Federal Savings & Loan Association v. Porter, 408 Pa. 236, 183 A. 2d 318 (1962). The majority holds, however, that the plaintiff here had “unclean hands” because he allowed the defendant to make improvements for several months before taking action. Even assuming the plain,tiff did have unclean hands, I fail to see how this affects plaintiff’s right to set the sale aside. The defendant is not without remedy. He may, in another proceeding, seek to recover the costs of improvement on a quasi-contractual basis. But the most he is entitled to is payment for improvements; he cannot keep the entire property. In effect, the majority allows this defendant to cure the defect in his title by quickly making improvements in the property. This he cannot do.

Accordingly, I would reverse the decree and grant plaintiff’s motion to set aside the sheriff’s sale.