Devon Service, LLC v. Hanly, D.

J-S51014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEVON SERVICE, LLC, SUCCESSOR BY IN THE SUPERIOR COURT OF
ASSIGNMENT TO CUSTOMERS BANK PENNSYLVANIA
F/K/A NEW CENTURY BANK
Appellee
v.
DAVID HANLY, SR. AND EVELYN HANLY
Appellants No. 65 EDA 2016
Appeal from the Judgment Entered January 22, 2016
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2013-11676
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 22, 2016
Appellants, David Hanly, Sr. and Evelyn Hanly, appeal from the
judgment entered in the Delaware County Court of Common Pleas, in favor
of Appellee, Devon Service, LLC (“Devon Service”), successor by assignment
to Customers Bank f/k/a New Century Bank (“Customers Bank”), in this
action to fix the fair market value of real property pursuant to the Deficiency
Judgment Act. We affirm.
The relevant facts and procedural history of this case are as follows.
On November 25, 2013, Customers Bank filed a complaint against
Appellants seeking judgment in mortgage foreclosure of real property
located at 213 Collingdale Avenue, Collingdale, Pennsylvania (“Collingdale
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S51014-16
property”).1 On April 16, 2015, the parties entered a stipulation consenting
to entry of judgment in mortgage foreclosure on the Collingdale property in
the amount of $309,451.37; and for issuance of a writ of execution for
sheriff’s sale. On September 18, 2015, Devon Service (the successor by
assignment to Customers Bank) purchased the Collingdale property at a
sheriff’s sale for one dollar.
On October 23, 2015, Devon Service filed a petition to fix the fair
market value of the Collingdale property pursuant to the Deficiency
Judgment Act.2 Devon Service claimed the fair market value of the
Collingdale property was $120,000.00 based on an appraisal report issued
by Benchmark Appraisal Group. Appellants responded on November 10,
2015, alleging the combined fair market value of the Collingdale property
and the MacDade property was $750,000.00. The court held a hearing on
the petition on November 30, 2015. On December 4, 2015, the court fixed
the fair market value of the Collingdale property at $120,000.00. Appellants
____________________________________________
1
Customers Bank filed a separate complaint against Appellants seeking
judgment in mortgage foreclosure of real property located at 829 MacDade
Boulevard, Collingdale, Pennsylvania (“MacDade property”). The MacDade
property is the subject of a separate appeal at docket No. 50 EDA 2016.
2
See 42 Pa.C.S.A. § 8103(a) (stating whenever real property is sold to
judgment creditor in execution proceedings and price for which such
property has been sold is not sufficient to satisfy amount of judgment,
interest and costs and judgment creditor seeks to collect balance due on said
judgment, interest and costs, judgment creditor shall petition court to fix fair
market value of real property sold).
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J-S51014-16
timely filed post-trial motions on December 11, 2015, which the court denied
on December 22, 2015. On December 29, 2015, Appellants filed a
premature notice of appeal. Devon Service subsequently filed a praecipe to
enter judgment on the verdict and to assess damages, which the court
entered on January 22, 2016.3 The court did not order Appellants to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and Appellants filed none.
Appellants raise one issue for our review:
DID THE TRIAL COURT HAVE SUFFICIENT EVIDENCE TO
SUSTAIN ITS DETERMINATION THAT THE FAIR MARKET
VALUE OF THE REAL PROPERTY LOCATED AT 213
COLLINGDALE AVENUE, COLLINGDALE, PENNSYLVANIA,
WAS ONE HUNDRED AND TWENTY THOUSAND DOLLARS
($120,000.00) WHEN APPELLANTS SUBMITTED TWO (2)
AGREEMENTS OF SALE AND TESTIMONY FROM A WILLING
PURCHASER ESTABLISHING THE FAIR MARKET VALUE OF
THE SUBJECT PREMISES FOR A COMBINED PURCHASE
PRICE OF SEVEN HUNDRED AND FIFTY THOUSAND
DOLLARS ($750,000.00)?
____________________________________________
3
Ordinarily, an appeal properly lies from the entry of judgment, not from
the order denying post-trial motions. See generally Johnston the Florist,
Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa.Super. 1995) (en banc).
Nevertheless, a final judgment entered during pendency of an appeal is
sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and
Supply, Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 569 Pa. 693,
803 A.2d 735 (2002). Here, Appellants filed a notice of appeal prematurely
on December 29, 2015, prior to the entry of judgment. Thus, Appellants’
notice of appeal relates forward to January 22, 2016, the date judgment was
entered and damages were assessed. See Pa.R.A.P. 905(a)(5) (stating
notice of appeal filed after court’s determination but before entry of
appealable order shall be treated as filed after such entry and on date of
entry). Hence, no jurisdictional defects impede our review.
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J-S51014-16
(Appellants’ Brief at 4) (internal footnote omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Spiros E.
Angelos, we conclude Appellants’ issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed February 19, 2016, at 4-5)
(finding: credible testimony of Devon Service’s licensed appraiser and
appraisal report supported determination that fair market value of
Collingdale property was $120,000.00; appraisal report considered condition
and characteristics of property, comparable sales, uses to which property is
adapted, neighborhood characteristics, rental income of comparable
properties, and market demand; Appellants’ proffered testimony and
evidence regarding prior offer to purchase Collingdale and MacDade
properties was not determinative of fair market value, particularly where
offer to purchase was contingent on occurrence of certain events which were
beyond Appellants’ control, including sale of other properties and relocation
of nearby library; further, potential buyer testified he was no longer
interested in purchasing Collingdale and MacDade properties due to
unavailability of another property which buyer sought to acquire along with
Collingdale and MacDade properties). Accordingly, we affirm on the basis of
the trial court’s opinion.
Judgment affirmed.
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J-S51014-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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Circulated 07/13/2016 04:15 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DEVON SERVICE, LLC, successor by No. 13-11676
assignment to CUSTOMERS BANK f/k/a
NEW CENTURY BANK
vs.
DAVID HANLY, SR. and EVELYN HANLY
Phillip D. Berger, Esquire-Counsel for Appellee/Plaintiff
Jay M. Levin, Esquire - Counsel for Appellants/Defendants
ANGELOS,J. DATE: February 19, 2016
OPINION
Appellants/Defendants, David Hanly, Sr. and Evelyn Hanly, appeal from the December
3, 2015 Order fixing the fair market value of real property located at 213 Collingdale Avenue,
Collingdale, Pennsylvania ("the property") at one hundred twenty thousand dollars
($120,000.00) pursuant to 42 Pa.C.S.A. § 8103(c). The determination is supported by sufficient
evidence and, therefore, the December 3, 2015 Order should not be disturbed.
PROCEDURAL AND FACTUAL HISTORY
Appellee/Plaintiff, Devon Service, LLC, is the judgment creditor in the instant matter.
See, Praecipe to Mark Judgment to the Use of Devon Service, LLC; Ex. P7. Appellants, the
judgment debtors in the instant matter, owned the property, which was sold to Appellee in
execution proceedings. See, Pet. to Fix Fair Market Value of Real Property Pursuant to 42
Pa.C.S.A. § 8103(a), Ex. B. Appellee filed their petition to fix fair market value of the property
on October 23, 2015. Appellant filed a response to the petition on November 10, 2015 asserting
that the combined fair market value of the property and other real property sold in separate
execution proceedings was seven hundred fifty thousand dollars ($750,000.00) pursuant to an
offer Appellants had previously received for the two (2) properties. See, Defs.' Resp. to Pl.'s
Pet. to Fix Fair Market Value of Real Property Pursuant to 42 Pa.C.S.A. § 8103(a), ,r 10.
A hearing was held on November 30, 2015. Appellee offered the testimony and an April
8, 2015 appraisal report of a licensed appraiser claiming that the fair market value of the property
is one hundred twenty thousand dollars ($120,000.00). Ex. P2. Appellants offered testimony
and evidence that in September 2014 and March 2015, Appellants received, but never executed,
offers to buy the property and a separate property owned by them for a total of seven hundred
fifty thousand dollars ($750,000.00). Joint Ex. 1; Ex. DI. After considering all evidence and
testimony, the December 3, 2015 Order was entered fixing the fair market value of the property
at one hundred twenty thousand dollars ($120,000.00). Appellants filed a motion for
reconsideration on December 11, 2015, which was denied by Order dated December 22, 2105.
Appellants filed a notice of appeal on December 29, 2015.1
DISCUSSION
Pursuant to 42 Pa.C.S.A. § 8103(a), "[w]henever any real property is sold, directly or
indirectly, to the judgment creditor in execution proceedings and the price for which such
property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs
and the judgment creditor seeks to collect the balance due on said judgment, interest and costs,
the judgment creditor shall petition the court to fix the fair market value of the real property
I
It should be noted that Appellants' representation that the December 3, 2015 Order had been
reduced to judgment as of the filing of their notice of appeal is incorrect. Damages in
accordance with the December 3, 2015 Order were neither assessed nor reduced to judgment
until January 22, 2016 upon praecipe of Appellee.
2
sold." If the judgment debtor files an answer asserting that the fair market value of the property
is more than that stated in the petition, the trial court must hear evidence and determine the fair
market value. 42 Pa.C.S.A. § 8103(c)(4). The hearing on the petition is limited to issues raised
in the judgment debtor's answer. Pa.R.C.P. 3285.
When reviewing an order fixing fair market value, an appellate court is limited to
determining whether there is sufficient evidence to sustain the holding of the trial court, or
whether the court committed reversible error of law. Union Nat. Bank of Pittsburgh v. Crump,
349 Pa. 339, 342, 37 A.2d 733, 734 (1944); Bryn Mawr Trust Co. v. Healy, 446 Pa. Super. 501,
505, 667 A.2d 719, 721 (1995). The record must be viewed in a light most favorable to the
verdict winner. Confederation Life Ins. Co. v. Morrisville Properties, L.P. & Site Dev., Inc., 715
A.2d 1147, 1154 (Pa. Super. Ct. 1998). Furthermore, it is the trial court that weighs the
credibility of testimony and evidence concerning valuation, including the weight to be given to
expert testimony. Id.; Bryn Mawr Trust Co. v. Healy, 446 Pa. Super. 501, 508, 667 A.2d 719,
723 (1995); Mellon Bank (E.) Nat. Ass'n v. Pennsylvania Rest. of A.B.E., Inc., 364 Pa. Super.
567, 570, 528 A.2d 654, 655 (1987).
Fair market value has been determined to be "the price a purchaser, who is willing but
not obligated to buy, would pay an owner, who is willing but not obligated to sell." Bryn Mawr
Trust Co. v. Healy, 446 Pa. Super. 501, 508, 667 A.2d 719, 723 (1995). Stated differently, the
trial court must consider the reasonable value "the judgment creditor can get out of the property
in partial or complete recapture of the loan and interest on loan." First Pennsylvania Bank, NA
v. Peace Valley Lakeside Cmty. & Agr. Trust, Inc., 329 Pa. Super. 218, 222, 478 A.2d 42, 44
(1984). Factors that a court may consider when determining fair market value include recent
sales of realty of comparable location and description, uses to which the realty is adapted and
3
might reasonably be applied, demand for the realty, income produced by it, and all elements
which might affect its actual value. Union Nat. Bank of Pittsburgh v. Crump, 349 Pa. 339, 343,
37 A.2d 733, 735 (1944); Confederation Life Ins. Co. v. Morrisville Properties, L.P. &Site Dev.,
Inc., 715 A.2d 1147, 1154 (Pa. Super. Ct. 1998). An offer to purchase property, while having
some evidentiary value, is not conclusive of the fair market value. Union Nat. Bank of
Pittsburgh v. Crump, 349 Pa. 339, 343, 37 A.2d 733, 735 (1944); Mellon Bank (E.) Nat. Ass'n v.
Pennsylvania Rest. of A.B.E., Inc., 364 Pa. Super. 567, 572-73, 528 A.2d 654, 655 (1987).
Likewise, consideration of the "highest and best use" of the property is also not conclusive in
determining fair market value in a deficiency judgment proceeding. First Pennsylvania Bank,
NA. v. Peace Valley Lakeside Cmty. & Agr. Trust, Inc., 329 Pa. Super. 218, 225, 478 A.2d 42,
45 (1984) (noting that although such has become an element for consideration in condemnation
cases, the factors listed by the Pennsylvania Supreme Court in Union Nat. Bank of Pittsburgh v.
Crump, supra, remain the landmark authority in deficiency judgment proceedings).
In the instant matter, the fixed fair market value of one hundred twenty thousand dollars
($120,000.00) is sufficiently supported by the testimony and appraisal report of a licensed
appraiser, which was found to be credible. That report took into consideration the condition and
characteristics of the property, comparable sales, uses to which the property is adapted,
neighborhood characteristics, rental income, rental income of comparable properties, and market
demand. Ex. P2. The testimony and evidence offered by Appellants concerning some prior offer
is not determinative of the property's fair market value, especially considering the offer was
conditioned on the occurrence of several prerequisites outside of Appellants' control, including
the sale of other properties and the relocation of a library. Furthermore, there was testimony that
the buyer who made the offer was no longer interested in purchasing the property and that the
4
use of the property proposed by the buyer was no longer a viable option because of the
unavailability of one of the other necessary properties. Therefore, the only testimony and
evidence of the current fair market value of the property, the value that the judgment creditor can
get for the property, was the testimony and appraisal report offered by Appellee.
For the foregoing reasons, the Order of December 3, 2015, 2015 should not be disturbed.
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