author: TAMILIA, Judge.

text:
    679 A.2d 817
    COMMONWEALTH of Pennsylvania v. Stanley WOODY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 12, 1996.
    Filed July 2, 1996.

      Michael E. Duda, Asst. Public Defender, Harrisburg, for appellant.
    Richard E. Guida, Asst. Dist. Atty., Harrisburg, for Com.
    Before TAMILIA, JOHNSON and MONTEMURO, JJ.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge.

Stanley Woody appeals from the November 20, 1995 judgment of sentence imposing a term of eleven and one-half (11/é) to twenty-three (23) months’ imprisonment and a concurrent term of six (6) to twelve (12) months’ imprisonment. Following a jury trial, appellant was convicted of carrying a firearm without a license and unlawful possession of a controlled substance. Also, the trial court adjudicated appellant guilty of driving without a license and imposed a $200 fine. As recited by the trial court, the facts of this case are as follows.

The defendant was arrested by officers of the Harrisburg Police Department. An officer had stopped the subject vehicle at approximately 4:00 a.m. on May 24, 1995, when he observed the vehicle without headlights on, at 17th and Zarker Streets, in the city of Harrisburg. The driver was asked for his license and registration. He responded that he had no license or registration but acknowledged he was the owner. There was a female passenger in the car. The officer ran a check for any license information and warrants. The check revealed the driver had no license and there was an outstanding warrant for the passenger. The passenger was arrested. Because the driver had no license, the vehicle was to be towed. During the inventory search of the vehicle, a loaded handgun was found underneath the passenger’s seat. A second officer then placed handcuffs on the defendant and placed him under arrest. Subsequently, cocaine was found [on the floor behind the driver’s seat].

(Slip Op., Lipsitt, J., 12/14/95, pp. 1-2.)

On appeal, appellant first challenges the denial of his suppression motion on the basis that police exceeded the proper scope of an inventory search in retrieving the gun and cocaine from his automobile. The United States and Pennsylvania Supreme Courts have recognized that inventory searches constitute a well-defined exception to the warrant requirement of the Fourth Amendment. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Commonwealth v. Nace, 524 Pa. 323, 571 A.2d 1389 (1990). The purpose of an inventory search is not to uncover criminal evidence. Rather, it is designed to safeguard seized items in order to benefit both the police and the defendant. So long as the search is pursuant to the caretaking functions of the police department, the conduct of the police will not be viewed as unreasonable under the Constitution. See Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). Finally, our Supreme Court has recognized inventory searches in the two areas of automobiles and booking procedures. Nace, supra.

Scott and Opperman are seminal cases defining the proper scope of inventory searches of automobiles. In Scott, our Supreme Court upheld an inventory search of an impounded automobile which recovered, inter alia, a shotgun from under the front seat and shotgun shells from the glove compartment. Id. at 266-267, 365 A.2d at 144. In Opperman, the United States Supreme Court upheld the inventory search of an impounded automobile which recovered marijuana from the glove compartment. Id. at 365, 96 S.Ct. at 3095, 49 L.Ed.2d at 1003. As both of these cases indicate, it is not necessary that the evidence is in plain view, so long as the search is reasonable and does not go beyond the formalities of an inventory search into a criminal investigation.

Instantly, we find the search of appellant’s automobile fell clearly within the parameters of an inventory search. As noted by the trial court, appellant had no license to drive and his passenger had been arrested. Since no one was available to move the car, which was blocking the street, the police were required to take custody of the vehicle and an inventory search was proper. Thereafter, the challenged evidence was recovered from the floor of the vehicle, a place where belongings are likely to be found. On this basis, the search was clearly reasonable and did not go beyond the formalities of an inventory search into a criminal investigation. Opperman, Nace, Scott, supra; contra, see Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984) (purported inventory search held invalid where officers removed automobile seats and ripped upholstery looking for contraband). In fact, the search of appellant’s automobile was far less intrusive than those validated by the Opperman and Scott courts, both of which involved recovery of contraband from glove compartments. Thus, suppression was not warranted under the facts of this case and we reject appellant’s claim.

Appellant also challenges the sufficiency and weight of the evidence sustaining his convictions. Specifically, appellant claims there was no evidence presented at trial that he possessed the firearm and drugs seized from his vehicle. A “weight of the evidence” claim, for which our scope of review is very narrow, contends the verdict is a product of speculation or conjecture. Such a claim requires a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Ables, 404 Pa.Super. 169, 179-181, 590 A.2d 334, 339 (1991). A decision regarding the weight of the evidence is within the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of that discretion. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). “In reviewing the trial court’s decision concerning the weight of the evidence, an appellate court is not passing on the credibility of witnesses. This is a function that is solely within the province of the finder of fact which is free to believe all, part or none of the evidence.” Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991). In reviewing a sufficiency of the evidence claim, we must determine whether the evidence and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the crimes beyond a reasonable doubt. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992).

We reject appellant’s weight and sufficiency arguments. Our Supreme Court has discussed the doctrine of constructive possession as follows:

The purpose of the constructive possession doctrine is to expand the scope of possession statutes to encompass those cases where actual possession at the time of arrest cannot be shown or where the inference that has been actual possession is strong. We have held that constructive possession exists if an individual has ‘conscious dominion’ over the illegal property. Constructive possession by its nature is not amenable to ‘bright line’ tests. We have held, therefore, that it may be established by the totality of the circumstances.

Commonwealth v. Carroll, 510 Pa. 299, 302, 507 A.2d 819, 820-821 (1986). We find that a jury could reasonably infer, from the totality of circumstances, that appellant maintained constructive possession of the firearm and drugs recovered from his vehicle. As apparently believed by the jury as finder of fact, the trial testimony established that appellant was operating the vehicle when stopped and claimed ownership of the vehicle when asked by the arresting officer (N.T., 11/20/95, p. 44). Further, appellant’s passenger testified that she had been in the vehicle for only three blocks (N.T. at 70), and she denied ownership of the contraband (N.T. at 75). Thus, the facts as established by the jury indicate that appellant was in constructive possession of both the firearm and the drugs. Based on these facts, we hold that appellant’s convictions were sustained by the weight and sufficiency of the evidence.

Having rejected appellant’s claims, we affirm the November 20,1995 judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 6106.

      . 35 P.S. § 780-113(16).


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    679 A.2d 820
    COMMONWEALTH BANK, A DIVISION OF MERIDIAN BANK, Appellant, v. Mary IORIO, Robert Eddowes and Larraine Eddowes, Appellees.
    Superior Court of Pennsylvania.
    Argued March 13, 1996.
    Filed July 24, 1996.

      Eileen A. Reilly, West Pittston, for appellant.
    Megan P. Maguire, Kingston, for Robert & Larraine Eddowes, appellees.
    Before BECK, KELLY, and OLSZEWSKI, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether the Common Pleas Court of Luzerne County properly granted the appellees, Mary lorio, Robert Eddowes and Larraine Eddowes’, petition to release from the sheriffs levy in favor of the appellant, Commonwealth Bank, certain properties known as Lot 42, Block 8, Section 6 and Lot 8, Block 9, Section 6 of Indian Lake Allotment, Buck Township, Luzerne County, Pennsylvania. We hold that pursuant to Pa.R.Civ.P. 3119(2), the court may release part of the property if the value of the levied property is excessive compared to the amount of the judgment, interests and probable costs. Thus, we affirm.

The relevant facts and procedural history of this appeal are as follows:

1. On February 28, 1991, Mary lorio and her husband, Leonard lorio (now deceased) as well as their daughter and son-in-law, Larraine Eddowes and Robert Eddowes, executed a promissory note in favor of Meridian Bank in the principal amount of One Hundred Forty Thousand Five Hundred ($140,500.00) Dollars and, in addition, as collateral for said note, gave Meridian Bank a mortgage of even date securing the Fireside Inn property as well as the Eddowes family residence and adjoining lot located in Indian Lake, Buck Township, Luzerne County, Pennsylvania.
2. The Fireside Inn property as well as the Indian Lake properties were scheduled to be sold [a]t sheriffs sale on April 7,1995.
3. As of April 7, 1995, the total amount due the bank under the terms of the note was One Hundred Forty-Five Thousand Nine Hundred Twelve and 99/100 ($145,912.99) Dollars.
4. The taxes and costs outstanding as of April 7, 1995, was Thirty-Five Thousand Four Hundred Eighty-Seven and 82/100 ($34,487.82) [sic] Dollars.
5. In total, the outstanding amount due under the note as well as taxes and costs equal One Hundred Eighty Thousand Four Hundred and 81/100 ($180,400.81) Dollars.
6. Robert Eddowes and Larraine Eddowes filed a Petition to Release Property from Levy and Stay Sheriffs Sale thereon pursuant to Pennsylvania Rule of Civil Procedure 3119 and 3121(b)(2).
7. On April 7,1995, an Order was entered continuing the sale of the Indian Lake properties to June 9,1995.
8. The sheriffs sale as to real estate known as the Fireside Inn, Route 115, Buck Township, Luzerne County, Pennsylvania, was conducted on April 7, 1995, at which time Commonwealth Bank, the sole bidder, obtained title to the Fireside Inn property.
9. Robert Eddowes and Larraine Eddowes presented the expert testimony of Charles A. Moyer, MAI, of Patt, White and Whitney.
10. Mr. Moyer, a Pennsylvania licensed real estate broker, is an expert real estate appraiser with primary experience in appraisal of commercial property.
11. A majority of Mr. Moyer’s work is conducted in Luzerne County and neighboring counties.
12. Mr. Moyer was employed by Robert Eddowes and Larraine Eddowes to make a market value appraisal of the Fireside Inn property and the Indian Lake properties.
13. Mr. Moyer was paid for making this appraisal and his fee was not contingent upon the value estimate reported or upon the results of the proceeding.
14. Mr. Moyer does not have any interest in the properties under appraisement, either directly or indirectly, or any contemplated future interest.
15. Mr. Moyer prepared an appraisal report which was submitted at the time of hearing as Petitioners Robert Eddowes and Larraine Eddowes’ Exhibit “A”.
16. Mr. Moyer made a personal physical inspect of the Fireside Inn and Indian Lake properties on April 25, 1995, as well as photographed the properties as submitted in his report.
17. Mr. Moyer reviewed relative data at the Luzerne County Courthouse and municipal offices, reviewed data developed by Patt, White and Whitney, and pertinent resource materials.
18. Market value is the “most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming that the price is not affected by undue stimulus. Implicit in his definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: 1. Buyer and Seller are typically motivated[;] 2. Buyer and Seller are well informed or well advised, and are acting in what they consider their own best interest; 3. A reasonable time is allowed for exposure in the open market; 4. Payment is made in terms of cash in U.S. Dollars or in terms of financial arrangements comparable thereto; and 5. The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.”
19. The Fireside Inn real estate only was transferred from Leonard A. and Mary lorio to Mark J. Kraft, James A. Kraft and Davis A. Kraft on May 24,1981, for the amount of Four Hundred Ninety Thousand ($490,000.00) Dollars.
20. During the latter half of 1994, the Fireside Inn real property was placed on the market with a listing price of Four Hundred Ninety-Five Thousand ($495,000.00) Dollars.
21. An Agreement of Sale was entered into during October 1994 for the amount of Two Hundred and Fifty Thousand ($250,000.00) Dollars.
22. The Agreement, a copy of which is attached to Plaintiffs brief, provides that the sale price of the real estate was One Hundred Thirty Thousand ($130,000.00) Dollars.
23. As Ronald Wydo, Esquire, counsel for Mary lorio, testified the One Hundred Thirty Thousand ($130,000.00) Dollars allocation for the real property was solely for the buyer’s tax benefit as suggested by his accountant and said sum did not reflect the market value of the Fireside Inn real property.
24. Attorney Wydo testified that Mary lorio agreed to sell the property for the amount of money needed to pay all the creditors of the Fireside Inn, without profit to her, said amount being Two Hundred Fifty Thousand ($250,000.00) Dollars.
25. In October, 1994, Mary lorio was, as Attorney Wydo and Larraine Eddowes testified, a distressed, disadvantaged and highly motivated seller which forced her to agree to sell the Fireside Inn property at below market value.
26. The sales agreement of October 1994, fell through due to the buyer’s financial status.
27. The Fireside Inn is located on Pennsylvania Route 115, Buck Township, Luzerne County, with two hundred fifty (250) feet of road frontage and contains 4.53 acres.
28. The Fireside Inn property is improved with a one and part two-story, wood frame and masonry brick first floor restaurant and second floor apartment structure containing nine thousand four hundred and seventy-eight (9,478) square feet of gross building area.
29. The improvements were originally constructed around 1923, with subsequent additions and renovations made up to 1984.
30. The layout of the subject property consists of four general areas, a lower level bar, dining room/bar, kitchen and a second floor living area.
31. The Luzerne County Tax Assessor’s Office identifies the Fireside Inn parcel as No. 1 K14-1-13 and values the subject property (only the real property) as Two Hundred Seventy-Seven Thousand, Five Hundred and Thirty-Two ($277,532.00) Dollars.
32. The highest and best use is the use that supports the highest present value as defined, as of the effective date of the appraisal.
33. The Fireside Inn property was vacant, considering the unavailability of public utilities, the physical aspects of the site, the neighborhood and the location of the site within the neighborhood would be commercial use.
34. The improvements to the real property add value to the site in excess of the value if the site as vacant and, therefore, substantiate their continued use, therefore, the highest and best use of the subject property as improved is for continuing use as a restaurant facility.
35. In order to determine the market value of the real estate known as the Fireside Inn, Mr. Moyer utilized a cost approach, which considers the current cost of replacing a property, less accrued depreciation from three sources: physical deterioration, functional obsolescence and economic obsolescence.
36. The cost approach consists of four steps: valuation of the land as if vacant, estimation of replacement cost new of the existing structures and/or improvements; an estimate of accrued depreciation found in the improvements (the total depreciation present in the improvements is deducted from its cost new to indicate a depreciated value of improvements); and the addition of the land value and the depreciated replacement cost of structures and improvements to indicate a value estimate.
37. The first step in the cost approach involves placing a value on the subject property as if it is vacant, determining the highest and best use of the land as if vacant and a comparison of recent sales of comparable land with an equivalent highest and best use.
38. Four recent purchased [sic] of commercial vacant land were analyzed by comparing relevant units of comparison among the sales themselves in order to determine subjective adjustments required for certain factors.
39. Based on the comparisons of vacant commercial land, the value of the subject site, as if vacant, is valued at Fifteen Thousand ($15,000.00) Dollars per acre or an overall rounded value of Seventy Thousand ($70,000.00) Dollars.
40. The existing septic system for the restaurant is inoperable and in need of replacement. The cost to replace the existing septic system was estimated at Twenty-Five Thousand ($25,000.00) Dollars, a reasonable market amount. Mr. Moyer utilized said amount and has adjusted his market value of the subject property to reflect said amount.
41. Mr. Moyer in his cost approach appraisal method also considered the entrepreneurs profit which is a market derived figure that represents the amount an entrepreneur expects to receive in addition to cost; the difference between total cost and market value.
42. The cost approach indicates a market value of the Fireside Inn property of Three Hundred Forty-Two Thousand Seven Hundred and Fifty-Nine ($342,759.00) Dollars with a deduction for the septic replacement, resulting in a (rounded) market value of Three Hundred Twenty Thousand ($320,000.00) Dollars.
43. The sales comparison approach which produces an estimate value by comparing the subject property to the sales of similar properties in the same or competing areas was utilized to determine the market value of the Fireside Inn property by Mr. Moyer.
44. The important factors considered to affect the value of the subject property in relation to comparable sales are the nature of surrounding development, the availability of competing property, the relative size of both the site and improvements, the condition and physical aspects of the improvements, the age of the improvements, and functional, physical and economic characteristics.
45. The motivation of the parties to the transactions, the prevailing economic conditions as well as the market were researched by Mr. Moyer to identify comparable properties in the surrounding region.
46. Mr. Moyer, in estimating the value of the subject property through the sales comparison approach, examined five sales of restaurant facilities which occurred between May 1991 and August 1994.
47. The comparable sales were analyzed by comparing relevant units of comparison among the sales themselves in order to determine subjective adjustments required for certain factors.
48. The major elements of comparison used by Mr. Moyer in his analysis included the property interest conveyed, financing terms incorporated into a particular transaction, the conditions or motivations surrounding the sale, changes in market conditions since the sale, the location of the real estate, its physical traits and potential economic characteristics of the site.
49. Adjustments were made for any advantageous or unusual financing, any unusual buyer or seller motivations, or any other condition of sale influencing the sale price, changes in market conditions since the date of transfer of the comparable sale and the date of value for the subject property as well as adjustments for location, physical characteristic and economic conditions.
50. All comparable sales were fee simple interests, all sales were financed with market terms except for one which however, was reported at market, no unusual conditions or motivations surrounded the sales and the market appeared to be stable thus not [sic] time adjustment was warranted.
51. The sales comparison approach reflects the subject property as having a Thirty-Six ($36.00) Dollars per square foot value, rendering an overall market value of Three Hundred Forty-One Thousand Two Hundred and Eight ($341,208.00) Dollars. After the deduction of Twenty-Five Thousand ($25,000.00) Dollars for the replacement of the septic system, the Fireside Inn property renders a market value of Three Hundred Sixteen Thousand, Two Hundred and Eight ($316,208.00) Dollars, rounded to Three Hundred Fifteen Thousand ($315,000.00) Dollars.
52. A third approach, the income approach, is used to value investment commercial properties purchased by investors on the basis of the income which is produced.
53. The income approach valuation is made before income tax and does not take into consideration the depreciation, investment credits or other special conditions related to the financial position of the individual investor. The net income stream developed for the property is converted into an indication of value using direct capitalization and discounted cash flow analysis.
54. The subject improvements represent a class of real estate which is typically owner-occupied or built-to-suit. A research of data in the neighborhood as well as region, revealed no relevant data in the market regarding the subject’s improvements. The date [sic] revealed that these structures are seldom tenant occupied but rather are predominantly owner-occupied. This type of real estate is not considered institutionalized, investment-grade real estate and as such the income approach was not developed by Mr. Moyer.
55. The market values of the Fireside Inn derived from the cost approach and sales comparison approach are correlated as a check system to confirm the validity of each derived market value.
56. The difference between Mr. Moyer’s cost approach and sales comparison approach is less than two (2%) percent, which indicates that each approach value was reliable. The less than two percent difference is based on required adjustments not entirely scientific in nature but subjective.
57. The sales comparison approach is a good indication of value for these types of buildings. The data presented strong support for the value conclusion. This approach is considered a desirable indicator of value for real estate in that it is the easiest to understand and reflects the actions of buyers and sellers in the market place.
58. The Indian Lake properties consist of one parcel approximately .21 acre[s] and includes approximately sixty feet of lake frontage. Said parcel is improved with a one story with a lower level, wood frame, single family residence containing one thousand eight hundred thirty-six (1,836) square feet. The improvements were originally constructed around 1962 with subsequent renovations occurring in the late 1980’s. The second parcel is an unimproved lot containing .21 acres.
59. The date [sic] indicates that the parcels are recorded as an assembled parcel under one deed and were purchased on October, 1987, for the consideration of Fifty-Five Thousand ($55,000.00) Dollars.
60. The Indian Lake properties are assessed by the Luzerne County Tax Assessor’s Office as [sic] Five Thousand ($5,000.00) Dollars, or a market value of Sixty-Four Thousand Nine Hundred and Thirty-Five ($64,935.00) Dollars.
61. The highest and best use of the Indian Lake site as vacant is for residential use and the highest and best use of the improvements is for residential occupancy.
62. The sales comparison approach was utilized by Mr. Moyer to determine the market of the Indian Lake property.
63. Three comparable sales occurring between January 1992 to August 1994 in the Indian Lake Subdivision were considered.
64. Adjustments similar to those listed in Paragraph 50 were employed to determine the market value of the subject properties.
65. The market value for the Indian Lake property by the sale comparison approach is Seventy-Five Thousand ($75,000.00) Dollars.
66. The Respondent, Commonwealth Bank, submitted a narrative real estate appraisal report prepared by David J. Smith.
67. Mr. Smith also noted the Luzerne County Tax Assessor’s Office places a market value of the real estate property known as the Fireside Inn as Two Hundred Seventy-Seven Thousand Five Hundred and Thirty-Two ($277,-532.00) Dollars.
68. The Luzerne County tax assessment of value of the property known as the Fireside Inn is One Hundred Two Thousand Five Hundred and Thirty-Two ($102,532.00) Dollars more than Mr. Smith’s opinion of market value of One Hundred Seventy-Five Thousand ($175,000.00) Dollars.
69. Mr. Smith does not utilize his value of One Hundred Seventy-five Thousand ($175,000.00) Dollars in the income approach but rather uses the assessed value but testified that if the tax assessment were in line with his opinion of value of the property, the yearly income would be higher, resulting in a higher market value for the property.
70. Mr. Smith recognized the definition of market value and agreed with Mr. Moyer that one element of market value is that the buyer and seller are typically motivated.
71. Mr. Smith offered his opinion that if the subject property were vacant and available for development, the highest and best use of said property would be residential use.
72. Mr. Smith concluded that the best use of the property, as improved, is for commercial use.
73. Mr. Smith utilized the common method of the sales comparison approach whereby the subject property is valued as if the land were vacant.
74. Mr. Smith provided no explanation as to why he used comparable sales of vacant commercial land when he had concluded that in his opinion the highest and best use of the subject property would be residential use.
75. Mr. Smith’s opinion of the value of the subject property as vacant is invalid in that he used one type of property (commercial) for comparison to another type of property (residential).
76. Mr. Smith identified in his appraisal report a basement containing sixteen hundred square feet which he testified as being what Mr. Moyer described in his report as a cellar.
77. Mr. Moyer testified that the area containing the sixteen hundred square feet (the cellar) was a finished area containing a bar as well as a separate entrance and exit.
78. Mr. Smith did not include the sixteen hundred square feet in his appraisal, and testified that he believed this area had no value.
79. The improved comparable sales Mr. Smith contained in his appraisal ranged from Twenty-Seven ($27.00) dollars per square foot to Fifty-Eight ($58.00) dollars per square foot yet he placed a value of Twenty ($20.00) dollars per square foot on the Fireside Inn property.
80. Mr. Smith notes in his report that adjustments must be made and provides information regarding rental properties although the subject property and the comparable properties are not rentals.
81. Mr. Smith as well as Mr. Moyer testified that it would be fair to assume that the operator of the property would also occupy the upper residence of said property.
82. The three rentals utilized by Mr. Smith range from Six and 32/100 ($6.32) dollars to Seven and 50/100 ($7.50) dollars per square foot however he placed a lower rental rate for the Fireside Inn real estate of Four and 50/100 ($4.50) dollars per square foot.
[83] . Based on Mr. Smith’s opinion that the operator of the property would also likely occupy the upper residence and based on his opinion that the property had a rental rate of Four and 50/100 ($4.50) Dollars per square feet, then the rental rate of the upper residence would be Nine Thousand Nine Hundred Sixty-Three ($9,963.00) Dollars rather than the incorrect figure of Six Thousand ($6,000.00) Dollars as provided in Mr. Smith’s report.
[84] . Mr. Smith did not include apartment rental comparisons in his appraisal report.
[85]. Mr. Smith used miscalculations, incorrect comparisons, and inapplicable data to ascertain the market value of the Fireside Inn property.

(Trial Court Findings of Fact, June 29,1995).

On June 3, 1995, the trial court entered an order releasing from the sheriffs levy the Indian Lake properties known as Lot 42, Block 8, Section 6 and Lot 8, Block 9, Section 6 of Indian Lake Allotment, Buck Township, Luzerne County, Pennsylvania. This timely appeal by the appellant, Commonwealth Bank, followed.

The appellant raises the following issues for our review:

1. WHAT IS THE STANDARD FOR APPELLATE REVIEW OF A TRIAL COURT’S RELEASE OF PART OF A DEFENDANT’S MORTGAGED PROPERTY FROM LEVY?
2. DID THE LOWER COURT CORRECTLY INTERPRET THE LAW IN CONCLUDING THAT, UNDER THE FACTS OF THIS CASE, THE VALUE OF THE PROPERTY LEVIED UPON WAS EXCESSIVE COMPARED TO THE AMOUNT OF THE JUDGMENT, INTEREST, AND PROBABLE COSTS?
3. DID THE LOWER COURT ABUSE ITS DISCRETION BY IMPAIRING THE COLLATERAL SECURITY THAT THE PLAINTIFF HAD CONTRACTED FOR IN A LOAN TRANSACTION WITH THE DEFENDANTS?

(Appellant’s Brief at 5).

In its first issue on appeal, the appellant questions what this Court’s standard of review is in situations such as that presented instantly where the trial court releases part of the mortgaged property from sheriffs levy pursuant to Rule 3119 of the Pennsylvania Rules of Civil Procedure. This subject is one belonging to a class where trial courts are entrusted with a discretionary power to be exercised in view of all of the evidence presented to it for consideration. First Nat. Bank of Koppel v. Mount, 132 Pa.Super. 518, 520, 1 A.2d 547, 548 (1938). “In determining the propriety of releasing only a part of the property from the levy, the critical question is whether the value of the property is excessive when compared to the amount in controversy, that is, the underlying judgment.” 8 Goodrich-Amram 2d § 3119.8; Community Association of Pocono Farms Inc. v. Recra-Del Corporation, 294 Pa.Super. 498, 503, 440 A.2d 576, 578 (1982). Where the evidence submitted establishes that the value of the property attached by the judgment creditor is considerably greater than the amount of the judgment, a trial court does not abuse its discretion by releasing a portion of the property from the levy. 8 Goodrich-Amram § 3119:10; Community Association of Pocono Farms Inc. v. Recra-Del Corporation, supra.

Therefore, our standard of appellate review is to determine if the trial court’s findings are supported by competent evidence, if there has been a clear abuse of discretion, if an error in the application of the law exists, or if the trial court arbitrarily disbelieved credible evidence. Guttman Oil Co. v. Pennsylvania Insurance Guaranty Association, 429 Pa.Super. 523, 527, 632 A.2d 1345, 1347 (1993); C.R. by Dunn v. Travelers, 426 Pa.Super. 92, 99, 626 A.2d 588, 592 (1993); Chestnut v. Pediatric Homecare of America, 420 Pa.Super. 598, 601, 617 A.2d 347, 349 (1992). Thus, we dispose of the appellant’s first issue.

The second issue presented for our review is an assertion that the trial court erred when it incorrectly interpreted Pa.R.Civ.P. 3119. The appellant contends that the Supreme Court in Vant v. Gish, 412 Pa. 359, 194 A.2d 522 (1963), set a standard requiring the value of property levied to be “many times in excess” compared to the amount in judgment in order for part of the property to be released. We disagree.

Rule 3119 provides, “upon cause shown, on petition of any person or party in interest, the court may ... release part of the property, if the value of the property levied upon is excessive compared to the amount of the judgment, interests, and probable costs.” Pa.R.Civ.P. 3119(2). See Vant v. Gish, supra at 369, 194 A.2d at 528. The appellant claims that Community Association of Pocono Farms, Inc. v. Recra-Del Corporation, supra, demonstrates that the trial court incorrectly interpreted Rule 3119 when it held the property levied was excessive. Upon review, we conclude that the trial court correctly interpreted Rule 3119.

In Community Association of Pocono Farms, Inc. v. Recrar-Del Corporation, supra, the appellants had acquired title to forty-nine of two hundred, ninety-four lots which were subject to the lien of the appellee’s judgment of five hundred, ten thousand ($510,000) dollars. This Court held that the trial court did not err or abuse its discretion when it determined that the amount attached by the appellee was not so excessive as to justify the release of the forty-nine lots. Id. at 503, 440 A.2d at 577.

At trial, in the above mentioned case, the appellant’s expert estimated the fair market value of the property subject to execution at eight hundred thousand ($800,000) dollars. Included in this estimate was a water system valued at two hundred, fifty thousand ($250,000) dollars. The expert admitted that his evaluation of the property did not consider the financial records of the water company and that he had no information regarding the condition of the system or any need for repairs. Id.

The appellee in Community Association of Pocono Farms v. Recra-Del Corporation, supra presented the testimony of two experts. The first expert testified that the total value of the property was four hundred, five thousand ($405,000) dollars and explained that this estimate included the incomplete water system. He also related that because the lots were not in a single location but were scattered throughout the development, they would be difficult to sell. Id. at 502, 440 A.2d at 578. The appellee’s second expert estimated the value of the property at three hundred, sixty-eight thousand ($368,000) dollars, and also noted that extensive repairs were needed on the water and road systems.

The trial judge concluded from the testimony that the sale of this property would require either a bulk sale or an intensive marketing program. Furthermore, the trial judge determined that, after eliminating the appellant’s two hundred, fifty thousand ($250,000) dollar estimate of the value of the water-system, the resulting valuation would not exceed the debt, interests, and costs due to the appellee. Id. at 502, 440 A.2d at 578. Thus, the result reached in this case is inapplicable to the instant case because Judge Conahan specifically determined that the combined value of the three properties the appellant wanted to be included in their levy was substantially greater than the existing debt. Instantly, after the trial court determined that the value of the Fireside Inn itself was more than sufficient to cover the existing debt, it excluded the two properties from the appellant’s levy.

The appellant subsequently relies on Vant v. Gish, supra, which is cited within Community Association of Pocono Farms, Inc. v. Recra-Del Corporation, supra. The appellant contends that Vant v. Gish, supra, required the property in question to be “many times in excess” in order to be released from levy. This assertion is without merit.

In Vant v. Gish, supra at 359, 194 A.2d at 522, the appellee brought suit in the Court of Common Pleas of Allegheny County by writ of foreign attachment against the appellants who were residents of Illinois and the minor children of the appellee’s late wife by a prior marriage. The appellee’s claim was for $150,000 from the estate of his deceased wife. Assets worth $575,000 were attached, consisting of stocks and bonds that allegedly belonged to the appellants.

The appellants petitioned the trial court pursuant to Pa. R.Civ.P. 1272(h) (similar to Rule 3119) to release part of the attached property. The trial court denied the appellants’ jurisdictional challenge and motion to dismiss. On appeal, the Pennsylvania Supreme Court concluded that “because appellee had attached assets greatly in excess of the value he himself had placed upon his possible recovery, appellants’ petition under Rule 1272(h) [d]id not constitute a general appearance.” Vant v. Gish, supra at 370, 194 A.2d at 529.

In finding that the property attached was excessive, the Supreme Court cited Rule 1272(h) which provides that part of the attached property may be released “[i]f the value of the property attached is excessive compared to the amount in controversy.” Id. at 369,194 A.2d at 528 (citing Rule 1272(h)). Furthermore, the Supreme Court stated the intention of Rule 1272(h) was to prevent a situation where a plaintiff attaches a defendant’s property which is valued many times in excess of the possible recovery. Id.

The Supreme Court, however, did not state as the appellants have argued, that the rule required the property must be many times in excess in order to be released from levy. On the contrary, the opinion states, “When a plaintiff attaches more than is claimed by him, he cannot be heard to contend that defendant’s petition under Rule 1272(h) to protect the excessively attacked property constitutes a general appearance. We conclude, therefore, that because appellee has attached assets greatly in excess of the value he himself has placed upon his possible recovery, appellants’ petition ... does not constitute a general appearance.” Id. at 371, 194 A.2d at 529 (emphasis added). As the Supreme Court used several different terms to describe whether the value of the property attached is excessive, it did not set “many times in excess” as the standard for interpreting Rule 3119.

Instantly, the trial court determined that the total market value of the Fireside Inn was three hundred, fifteen thousand ($315,000) dollars, and the amount of the judgment was one hundred, eighty thousand, four hundred ($180,400) dollars. (Trial Court Findings of Fact, June 29, 1995). We conclude that the trial court correctly held that the Fireside Inn property was sufficient to cover the judgment and that attaching the Indian Lake properties would be excessive compared to the amount of judgment, interest, and probable costs.

In its third issue, the appellant contends that the trial court abused its discretion when it removed two of the three properties from the levy because the original loan transaction included all three properties as collateral. Generally, this Court will not disrupt the rights of creditors to collect judgments. Morgan Guaranty Trust Co. of New York v. Staats, 428 Pa.Super. 479, 631 A.2d 631 (1993) (citing Augustine v. Augustine, 291 Pa. 15, 139 A. 585 (1927)). However, we have said that a court has the authority to stay execution proceedings where it is necessary to protect the rights of the parties. Kronz v. Kronz, 393 Pa.Super. 227, 233, 574 A.2d 91, 94 (1990). “The grant of a stay of execution is within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion.” Kronz v. Kronz, supra (quoting In re Upset Sale, Tax Claim Bureau of Berks, 505 Pa. 327, 339, 479 A.2d 940, 946 (1984).

The appellant relies on Kronz v. Kronz, supra, for the premise that the order of the trial court releasing two of the three properties adversely affected the bank’s substantive rights and was an abuse of discretion. In light of the facts of the case, however, the appellant’s reliance is misplaced.

In Kronz v. Kronz, supra, the husband and wife obtained a loan for two hundred thousand ($200,000) dollars. Shortly thereafter, the mortgagee recovered a judgment of foreclosure for two hundred, thirty thousand ($230,000) dollars. Subsequently, the wife filed a petition alleging that the property was valued at six hundred, fifty thousand ($650,000) dollars and requesting the court to enjoin the sale of the property. After further proceedings, the petition was assigned to the Family Division for disposition and an order was issued which enjoined the mortgagee from executing its judgment.

On appeal, this Court held that the trial court had abused its discretion in that the trial court’s order indefinitely enjoined the mortgagee from executing the judgment on the property in question or any other property owned by the husband and wife. Id. at 236, 574 A.2d at 95. Additionally, the trial court’s order did. not fix a minimum sales price, provide for the maintenance or repairs of the building, or provide for insurance coverage for the property. Id. Consequently, this Court concluded that the trial court had impaired the mortgagee’s substantive rights without providing adequate interim security. Id.

In the case at bar, three properties were held as collateral whereas in Kronz v. Kronz, supra, only one property secured the mortgage. Appellant’s substantive rights, therefore, were not impaired because the value of the Fireside Inn at three hundred, fifteen thousand ($315,000) dollars exceeds the judgment of one hundred, eighty thousand, four hundred ($180,-400) dollars.

Based upon the foregoing reasons, the trial court’s order directing the release from sheriffs levy of the Indian Lake properties is affirmed.

Order affirmed.

BECK, J., concurred in the result.

      . Rule 1272(h) is similar to 3119; however, 1272 dealt exclusively with foreign attachments and was rescinded on September 29, 1989.

      . On October 17, 1995, appellees filed a motion to dismiss appellant's appeal pursuant to Pa.R.App.P. 123 and 2101 citing numerous violations of the Pennsylvania Rules of Appellate Procedure by appellant. We decline to take such action because effective appellate review has not been precluded by the deficiencies of appellant’s brief. See O’Neill v. Checker Motors Corporation, 389 Pa.Super. 430, 433, 567 A.2d 680, 681 (1989).


author: CIRILLO, President Judge Emeritus: BECK, Judge,

text:
    679 A.2d 831
    Mildred GAMBLER, Appellant, v. Scott L. HUYETT, Administrator for the Estate of Lance A. Williams, and Deborah L. Palmer and Fleet Mortgage Corp., Terre Tenant, Appellees. FLEET MORTGAGE CORP., Appellee, v. Lance A. WILLIAMS, Unmarried, and Deborah L. Palmer, Unmarried, and Mildred Gambler and Scott L. Huyett, Administrator for the Estate of Lance A. Williams, Appellees. Appeal of Mildred GAMBLER.
    Superior Court of Pennsylvania.
    Argued April 11, 1996.
    Filed July 31, 1996.

      John A. Fielding, III, Reading, for Mildred Gambler.
    Nicholas J. Scafidi, Philadelphia, for Fleet Mortgage Corp., appellee.
    Before CIRILLO, President Judge Emeritus, BECK, J., and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

Plaintifl/appellant, Mildred Gambler, appeals from two orders entered in the Court of Common Pleas of Berks County. The first order granted appellee Fleet Mortgage Corporation’s motion for judgment on the pleadings.. The second order granted Fleet’s motion to set aside a sheriffs sale. We affirm.

Briefly, this case involves two parties vying for priority liens on real property located in Reading. The parties are Mildred Gambler, a plaintiff who recovered a default judgment in a personal injury action against the now deceased owner of the property, and Fleet Mortgage, which recovered a default judgment in a mortgage foreclosure action on the property. Gambler’s damages judgment was not recorded until after Fleet Mortgage recovered its default judgment on the mortgage. Gambler’s damages judgment, however, was recorded prior to the sheriffs sale. Fleet neglected to notify Gambler of the impending sale in violation of Pa.R.C.P. 3129.1; however, the trial court set aside the sheriffs sale and ordered the sale rescheduled with specific notice to Gambler. Despite the fact that the order places Gambler in the same position as before the original sale, Gambler has appealed the order setting aside the sale, as well as the order granting Fleet judgment on the pleadings.

Mildred Gambler initiated an underlying action in this case against Lance A. Williams, seeking damages for personal injuries sustained in an automobile accident. In that action, the court entered a default judgment against Williams on the issue of liability. That judgment was entered on October 28, 1992. Damages were to be determined at a later date by the Board of Arbitrators.

On November 16, 1992, three weeks after the entry of Gambler’s default judgment, Fleet Mortgage Corporation commenced a mortgage foreclosure action against Williams and Deborah A. Palmer. Williams and Palmer were co-owners of the property located at 411 Birch Street in Reading, Pennsylvania, holding as joint tenants with the right of survivorship. On April 21, 1993, Fleet entered a default judgment against Williams and Palmer. On that same date, Fleet filed a praecipe for a writ of execution without Pa.R.C.P. 3129.1 notice to Gambler. Thereafter, Williams died. Scott L. Huyett, Esquire, administrator of Williams’ estate, was substituted in the Gambler action.

On June 18, 1993, the Board of Arbitrators awarded Gambler $7,500.00 in damages. The award was reduced to judgment on July 1, 1993. Eight days later, on July 9, 1993, pursuant to the writ of execution, Fleet purchased the property at a sheriffs sale for $840.38.

Gambler filed a praecipe for the issuance of a writ of revival of (adverse) judgment against Huyett, as Administrator of Williams’ estate, Palmer, and Fleet Mortgage, as terre tenant. In so doing, Gambler sought to have the liability judgment “revived” as a priority lien against the real property, which property, at that point, was titled in Fleet’s name due to the mortgage foreclosure and sheriffs sale.

The writ of revival was served upon Huyett, Palmer and Fleet Mortgage. The prothonotary indexed the writ in the judgment docket against Williams, Palmer and Fleet Mortgage. Fleet filed an answer to the writ with new matter, objecting to the prothonotary’s indexing of the writ on the docket. Gambler filed a reply.

On March 29, 1994, Fleet Mortgage filed a motion for judgment on the pleadings with a supporting brief which contained affirmative defenses not included in its new matter. Gambler filed a brief in support of the writ of revival, answering the affirmative defenses not raised in new matter.

Gambler then filed a praecipe for oral argument asking the trial court to determine that her “lien” had priority over the lien created by Fleet’s default judgment. The trial court heard argument. The court denied Gambler’s request, finding that the matter was not ripe for decision because it was still at the pleading stage, and noting that Fleet’s motion for judgment on the pleadings remained pending. Gambler appealed that order to this court. We quashed the appeal. Gambler v. Huyett, et al., 1727 Phila.1994, filed March 22, 1995, 442 Pa.Super. 684, 660 A.2d 660 (J. A08018/95, memorandum decision).

Thereafter, argument was held on Fleet’s motion for judgment on the pleadings. The Honorable Albert A. Stallone entered an order granting Fleet’s motion for judgment on the pleadings and dismissing Gambler’s writ of revival. Gambler appealed, and now raises the following claims:

1. Did the trial court erroneously grant appellee Fleet Mortgage Corporation’s motion for judgment on the pleadings since there was a disputed issue of material fact appearing on the pleadings?
2. Did the trial court err by granting appellee Fleet Mortgage Corporation’s motion for judgment on the pleadings since appellant Mildred Gambler was not notified of Fleet Mortgage Corporation’s sheriffs sale pursuant to Pa.R.C.P. 3129.1 and 3129.2, she possessed an interest in real property affected by the sheriffs sale, and she eventually possessed a lien that should have continued undischarged on the property due to the lack of notice?

Gambler’s claim in her appeal from the trial court’s order setting aside the sheriffs sale and ordering reissuance of the writ of execution and specifying notice of the sale to counsel for Gambler, is framed as follows:

Is the issuance of an order setting aside a sheriffs sale an improper remedy for Fleet Mortgage Corporation’s failure to notify appellant Mildred Gambler of the July 9, 1993 sheriffs sale affecting her interest in real property in accordance with Pa.R.C.P. 3129.1 and 3129.2?

In reviewing a trial court’s decision granting a motion for judgment on the pleadings, the appellate court’s scope of review is plenary; the appellate court will apply the same standard employed by the trial court, confining its consideration to the pleadings and relevant documents. Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 215-17, 514 A.2d 576, 578 (1986); Vogel v. Berkley, 354 Pa.Super. 291, 295-97, 511 A.2d 878, 880 (1986). The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. The court may grant judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise. Jones, supra; Vogel, supra.

We note initially that Gambler’s first issue on appeal is not appropriate on review of an order granting a motion for judgment on the pleadings. Claims regarding disputed issues of material fact are relevant to a summary judgment challenge. See Pa.R.C.P. 1035(b). See also Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). In reviewing a challenge to judgment on the pleadings, we accept the opposing party’s well pleaded facts. Thus, Gambler’s claim that the facts are disputed exceeds the objective of her argument. We, then, move on to review the propriety of the court’s order granting Fleet’s motion for judgment on the pleadings.

In support of its order granting Fleet’s motion, the trial court stated the following reasons on the record:

1. The pleadings reveal that the only judgment in favor of Gambler at the time Fleet filed its praecipe for the writ of execution on the mortgage foreclosure action, was a judgment establishing general liability and not a judgment for the payment of money;
■2. Under section 4303(a) of the Judicial Code, 42 Pa.C.S.A. § 4303(a), only judgments or other orders of court for the payment of money are liens on real property; and
3. Gambler’s general liability judgment, therefore, was not a lien on the real property in question prior to the mortgage foreclosure lien placed on the real property by Fleet.

A brief chronology of the relevant events will aid in our review:

October 28, 1992 — Default judgment in favor of Gambler’s personal injury action against Williams (general liability— no determination of damages as of this date)
April 21, 1993 — Fleet Mortgage’s default judgment on the mortgage foreclosure action recorded;
Praecipe for writ of execution
July 1, 1993 — Gambler’s arbitration award (damages) reduced to judgment
July 9, 1993 — Sheriffs sale (property purchased by Fleet)

Gambler argues that Fleet’s failure to notify her of the impending sheriffs sale entitled her to have her October 28, 1992 judgment entered as a priority lien against the property. Gambler contends that this general liability judgment served as “constructive notice” to Fleet of her interest in the property under 42 Pa.C.S.A. § 4302. She maintains that since Fleet failed to prove that it notified her in wilting in accordance with Pa.R.C.P. 3129.1, that Fleet took title subject to her July 1,1993 damage judgment.

Accepting Gambler’s well pleaded facts as true, we find that the trial court correctly concluded that Fleet’s right to prevail is clear. First, without passing on the question of whether Gambler’s liability judgment was a “document affecting title to or any other interest in real property” and, therefore, whether Fleet was required to comply with the sheriff sale notification rules in light of the fact that Gambler’s judgment was not a money judgment, see Pa.R.C.P. 3129.1 and 42 Pa.C.S.A. § 4302(a), we find that the court’s order in the related appeal, which set aside and rescheduled the sale, has countered the prejudice caused by Fleet’s neglect.

Additionally, Gambler’s damages judgment was entered after Fleet’s default judgment on the mortgage foreclosure action. Even though Gambler recovered a default judgment on liability prior to Fleet’s recovery default judgment on foreclosure, that judgment, though possibly requiring notice of a sheriff sale, was not necessarily a lien on the real property.

Section 4303 of the Judicial Code provides in part:

(a) Real property. — Any judgment or other order of a court of common pleas for the payment of money shall be a lien upon real property on the conditions, to the extent and with the priority provided by statute or prescribed by General Rule adopted pursuant to section 1722(b) (relating to enforcement and effect of orders and process) when it is entered of record in the office of the clerk of the court of common pleas of the county where the real property is situated, or in the office of the clerk of the branch of the court of common pleas embracing such county.

42 Pa.C.S.A. § 4303(a) (As amended 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, imd. effective) (emphasis added). Additionally, subsection (b) of section 4303 provides:

(b) Order of court as lien. — Any other order of a court of common pleas shall be a lien upon real and personal property situated within any county embraced within the judicial district on the conditions, to the extent and with the priority provided by statute or prescribed by general rule adopted pursuant to section 1722(b).[]

42 Pa.C.S.A. § 4303(b).

Here, Gambler’s arbitration award was not reduced to a judgment for the payment of money until July 1, 1993, two and one-half months after Fleet had obtained a default judgment in the mortgage foreclosure action and had filed a praecipe for a writ of execution. Thus, Gambler did not have an enforceable lien on the property at the time Fleet petitioned for writ of execution. Cf. Federal Land Bank of Baltimore v. Sustrik, 367 Pa.Super. 582, 533 A.2d 169 (1987) (judgment entered and filed but not indexed by prothonotary as money judgment until after subsequent judgment was secured and indexed prior in time was to be accorded secondary status for distribution purposes of money generated from sale of property against which competing judgments were issued; holder of second judgment could not be on notice of existence of judgment order which was not docketed).

With respect to the issue raised in the appeal from the order setting aside the sheriffs sale, the question is whether the court’s order setting aside the sale and ordering rescheduling with notice to Gambler, appropriately remedied the lack of notice of the sale. Gambler contends that the appropriate remedy is imposition of a “lien” of $7,500.00 upon the premises now owned by Fleet.

Pennsylvania Rule of Civil Procedure 3132 provides:

Upon petition of any party in interest before delivery of the personal property or of the Sheriffs deed to real property, the Court may, upon proper cause shown, set aside the sale and order a resale as any other order which may be just and proper under the circumstances.

Pa.R.C.P. 3132.

The question, then, is whether the liability judgment, which was entered prior to the date Fleet praeciped for writ of execution, falls within the definitions in Pa.R.C.P. 3129.1, that is, “a record interest in that property which may be affected by the sale” or an “interest in that property not of record which may be affected by the sale and of which the plaintiff has knowledge.” Pa.R.C.P. 3129.1(b)(3) and (4). We find that it does. The order, however, setting aside the sale and ordering reissuance of the writ, has, as stated above, countered any prejudice. Gambler will, upon rescheduling of the sheriffs sale, be notified in accordance with the rules of court and her interest, if any, will be protected.

Affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I cannot agree with the analysis employed by the majority. Gambler’s lien was discharged by the sheriffs sale of the property triggered by the action of the prior lien-holder Fleet Mortgage Corporation’s (“Fleet”). However, I must agree that the trial court’s order rescheduling the sale of the property should not be disturbed given the procedural posture of this case.

In determining the relative priority of Fleet’s and Gambler’s liens, we must look to the dates that the mortgage was recorded and the dates that Gambler’s judgments were entered. See 42 Pa.C.S. § 8141 (Purdons 1982) (“Time from which liens have priority”). On March 17, 1989, the original mortgage in question was recorded. Three days later on March 29,1989, the mortgage was assigned to Fleet. On July 19, 1989, the assignment was recorded. Neither Gambler’s default judgment on liability, entered more than three years later in October, 1992, nor the award of damages, rendered nearly four years later in June, 1993, can possibly be found to have created a lien with priority over Fleet’s mortgage lien under the terms of the applicable statute. As a general rule, liens and encumbrances on the property sold, even those prior to the execution creditor, are discharged as a result of the sale. Liss v. Medary Homes, Inc., 388 Pa. 139, 130 A.2d 137 (1957). It is thus clear that Gambler’s judgment lien on the property was discharged by the sheriffs sale.

With respect to Gambler’s claim that her lien should be revived as a remedy for Fleet’s failure to give her notice of the sheriffs sale, I would note merely that she has failed to provide any authority for her position that such a remedy exists and that my research has disclosed no such authority. Accordingly, I would conclude that the trial court did not err in refusing to grant the relief requested.

Fleet argues that Gambler was not entitled to notice of the sale, and I am inclined to agree. Fleet praeciped for the writ of execution on the property on April 21, 1993. At that time, although the default judgment in Gambler’s favor on liability had been entered, it had not been liquidated to an award of damages, nor had it been entered in the judgment index. Accordingly, at the time of execution, Gambler did not have a record interest in the property, see 42 Pa.C.S. § 4302(a); Pa.R.C.P. 3129.1(b)(3), nor is there any indication that Fleet had knowledge of any “interest not of record,” see Pa.R.C.P. 3129.1(b)(4), that might have been created by the existence of the default judgment on liability only. Under Pa.R.C.P. 3129.1 (“Sale of Real Property. Notice. Affidavit”), Fleet thus had no duty to provide notice to Gambler at the time that the writ of execution was filed. Nor can I conclude that such a duty arose when Gambler’s judgment was indexed after issuance of the writ. I would thus be inclined to hold that the original sheriffs sale of the property should stand. However, Fleet did not appeal the order setting aside and rescheduling the sale; indeed, it was at Fleet’s suggestion that the rescheduling occurred. As a result, the trial court’s order may not be disturbed.

I find appellant’s arguments ill-founded and confusing and I find that the majority in responding has obfuscated the law. I would affirm the trial court’s orders for the reasons stated above.

      . These appeals have been consolidated pursuant to Pa.R.A.P. 513.

      . Rule 3129.1 provides in relevant part:
      RULE 3129.1 SALE OF REAL PROPERTY. NOTICE. AFFIDAVIT.
      (a) No sale of real property upon a writ of execution shall be held until the plaintiff has filed with the sheriff the affidavit required by subdivision (b) and the notice required by Rule 3129.2 has been served.
      (b) The affidavit shall set forth to the best of the affiant’s knowledge or information and belief as of the date of the praecipe for the writ of execution was filed the name and address or whereabouts of
      (1) the owner or reputed owner of the real property and of the defendant in the judgment; and
      (2) every other person who has a record lien on that property; and

        (3) every other person who has any record interest in that property which may be affected by the sale; and
      (4) every other person who has any interest in that property not of record which may be affected by the sale and of which the plaintiff has knowledge.
      Pa.R.C.P. 3129.1 (emphasis added).

      . Gambler recorded the judgment against appellee Scott L. Huyett, Esquire, since Huyett had been appointed as Administrator of Williams' estate. On August 3, 1993, on motion filed by Gambler, and in order to allow her to execute on the real property, the court issued a rule upon both Huyett and Palmer to show cause why the caption of the underlying action should not be amended to formally substitute Huyett as a party defendant in place of Williams, and to add Palmer as a party defendant. Inasmuch as neither Huyett nor Palmer responded, the court granted Gambler’s motion.

      . Gambler failed to timely serve the writ upon Fleet. Accordingly, Gambler caused the writ to be reissued on November 5, 1993 and subsequently served it upon Fleet on November 23, 1993.

      . As indicated above, Fleet Mortgage sought redress by filing a petition to set aside the sheriff’s sale. The court granted this request and specified that Fleet notify Gambler’s attorney of the reissuance of the writ of execution and resale of the property. Gambler maintains in the appeal from that order that this did not remedy the wrong for which she sought relief, that is, Fleet’s failure to notify her of the impending sheriff’s sale. It appears that the court’s order would place Gambler in the same situation had she been given original notice as required by Pa.R.C.P. 3129.1. We, therefore, are unable to discern the import of Gambler’s claim.

      . Section 4302(a) of the Judicial Code provides:
      (a) Real property. — Except as otherwise provided by statute or prescribed by general rule adopted pursuant to section 1722(b) (relating to enforcement and effect of orders and process), every document affecting title to or any other interest in real property which is filed and indexed in the office of the clerk of the court of common pleas of the county where the real property is situated, or in the office of the clerk of the branch of the court of common pleas embracing such county in the manner required by the laws, procedures or standards in effect at the date of such filing shall be constructive notice to all persons of the filing and full contents of such document.
      42 Pa.C.S.A. § 4302(a).

      . Section 1722(b) of the Judicial Code pertains to the enforcement and effect of orders and process.


author: BROSKY, Judge.

text:
    679 A.2d 837
    Elizabeth A. BRADY, Appellant v. Patrick N. FORD, District Justice.
    Superior Court of Pennsylvania.
    Argued April 19, 1996.
    Filed July 17, 1996.
    Elizabeth E. Wachsman, Clearfield, for appellant.

      Before HUDOCK, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order of the trial court denying appellant’s petition in which she sought equitable relief from the district justice’s assessment of taxable costs against her. The sole issue presented for our review is whether the trial court erred in affirming the district justice’s assessment of costs. We reverse and remand for further proceedings.

We will briefly recount the pertinent facts giving rise to this appeal before addressing appellant’s claim. Appellant, Elizabeth Brady, filed a complaint against William Satterlee & Sons, Inc. (WSSI) in May of 1995, in connection with a delivery of heating fuel. Appellant sought recovery of damages in the sum of $125.77.

Appellant is undisputedly indigent, as her primary means of support is food stamps and public assistance. N.T. 10/11/95 at 6-7. Consequently, appellant filed a petition requesting permission to proceed in forma pauperis. Appellant’s petition was granted; she was permitted to proceed without paying the filing and service fees.

WSSI filed a cross-complaint in the same action. A hearing on both the complaint and cross-complaint was held on July 10, 1995 following which the district justice found in favor of WSSI in each matter. A judgment in the sum of $12.88, representing the amount of damages owed to WSSI, was entered against appellant on the cross-complaint. The judg-' ment did not include a separate entry for taxable costs.

The district justice subsequently sent appellant a note indicating that she was responsible for payment of the filing fees in the sum of $33.50. Appellant filed a petition in equity in which she sought to be excused from paying these fees. Appellant further requested leave to proceed in forma pauperis with respect to her petition; permission was granted. A hearing was held on October 11, 1995 following which the trial court denied appellant’s petition. This timely appeal followed.

The procedural rules governing actions and proceedings before a district justice generally provide that the prevailing party is entitled to recover his taxable costs from the unsuccessful litigant. Pa.R.C.P.D.J., Rule 206B and Rule 322, 42 Pa.C.S.A. and the 1990 Explanatory comments thereto. Taxable costs consist of all filing, personal service, witness and execution costs or fees authorized by law or general rule and paid by the prevailing party. Id., at Rule 206B, and note thereto. Where a plaintiff prevails, he or she is entitled to recover the taxable costs from the defendant. Id. However, a prevailing plaintiff who has been permitted to proceed in forma pauperis cannot recover the taxable costs; rather, these costs must be paid to the district justice. Id., at Rule 206E(v).

In this case, WSSI was the prevailing party. WSSI is thus entitled to recover from appellant those taxable costs which were either expended in defense of appellant’s action or in support of its own cross-complaint. Rule 206B, supra. However, WSSI was not required to pay any filing fees because the fees were the responsibility of appellant, who was excused from payment due to her in forma paupeHs status. WSSI also did not pay a fee to file its cross-complaint, because no fees are charged for such filings. Note, Pa.R.C.P.D.J., Rule 315, 42 Pa.C.S.A.; see also N.T. 10/11/95 at 3 (in which the district justice explained that WSSI was not required to pay any costs or fees because the cross-complaint arose out of the same incident as appellant’s claim).

Nor does it appear that any other fees or costs were actually paid by WSSI. N.T. 10/11/95 at 3. In fact, the judgment entered in favor of WSSI indicates that no taxable costs were assessed. See Judgment, entered 7/10/95 (attached as Exhibit A to appellant’s petition on assessment of filing fees). The district justice’s decision thus cannot be treated as an assessment of taxable costs owed to the prevailing party.

In any event, the assessment was not intended to represent the taxable costs recoverable by WSSI. Instead, the district justice sought to collect the filing fees that ordinarily would have been paid by appellant if she had not been permitted to proceed informa pauperis. See N.T. 10/11/95 at 14 (in which the district justice explained that the assessment of $33.50 was based on the $32.00 filing fee and the additional $1.50 fee to fund the Unified Judicial System Computer Project). This was clearly improper.

The Judicial Code formerly provided that “[t]he unified judicial system is established for the good order of society and the correction of injustice, and [that] no person should have right and justice denied or delayed by reason of poverty.” 42 Pa.C.S.A. § 1725(a)(1), repealed by the Act of December 14, 1992, P.L. 872, No. 140, § 5. The Supreme Court was evidently aware of this statute, as it was referenced in the 1992 Explanatory Comment to District Justice Rule 206. See 1992 Explanatory Comment, Pa.R.C.P.D.J., Rule 206, 42 Pa.C.S.A. (noting that the Judicial Code provides for informa pauperis proceedings for all courts under the Unified Judicial System). It thus appears that the Supreme Court extended the right to proceed in forma pauperis to minor courts in recognition of this legislative directive.

In adopting the rule, the Supreme Court did not provide for the assessment of filing fees against an unsuccessful plaintiff who has been permitted to proceed in forma pauperis and who remains indigent. Nor did the Supreme Court authorize the assessment of filing fees in cases where the district justice believes the plaintiffs action to be frivolous. Compare Pa. R.C.P.D.J., Rule 206E, 42 Pa.C.S.A. and 1992 Explanatory comment (explaining that Rule 206 is based on Pa.R.C.P., Rule 240, 42 Pa.C.S.A.) with Pa.R.C.P., Rule 240(j), 42 Pa.C.S.A. (permitting the court to dismiss an action, proceeding or appeal, prior to acting upon a petition for permission to proceed in forma pauperis, if the allegation of poverty is untrue or if the court is satisfied that the action, proceeding or appeal is frivolous). Rather, the rule is phrased in mandatory language which clearly and unambiguously states that “[a] party permitted to proceed in forma pauperis shall not be required to pay the filing fee imposed or authorized by Act of Assembly or general rule.” Rule 206E(iv) (emphasis added).

Had the Supreme Court intended to allow the recoupment of filing fees from an unsuccessful litigant, it would have so stated. The Court did not do so, however. To interpret the rule in the manner posited by the district justice and the trial court would have a chilling effect upon indigent litigants with legitimate claims, as these individuals may decide that it is more economical to forego pursuit of their legal rights rather than face the prospect of paying filing fees at a later date in the event the suit is ultimately unsuccessful. Moreover, such a construction would effectively undermine the purpose of the in forma pauperis provisions and frustrate the obvious desire of the legislature and the Supreme Court to provide indigent litigants with access to the minor judiciary.

The district justice’s and the trial court’s application of Rule 206 would work a substantial change in the manner in which informa pauperis proceedings are handled by district justices across the state. If a change of this magnitude is to be forthcoming, it is one which is best left within the discretion of the Supreme Court or the General Assembly rather than an intermediate appellate court. We therefore decline to interpret the rule so as to permit the recovery of filing fees.

As previously noted, appellant was not required to pay under Rule 206E(iv), supra, because she requested permission to proceed informa pauperis and her petition was granted by the district justice. Because the trial court concluded otherwise, its decision is clearly erroneous. We accordingly reverse the order of the trial court and remand for the entry of an appropriate order consistent with this opinion.

Order reversed. Remanded with directives. Jurisdiction relinquished.

      . The costs to be charged by a district justice in a civil case involving $500 or less is $32.00. 42 Pa.C.S.A. § 1725.1. District justices are additionally authorized to collect a fee of $1.50 which is to be credited to the Judicial Computer System Augmentation Account. 42 Pa.C.S.A. § 3733(a.l). Consequently, the total filing fee was $33.50 ($32.00 + $1.50 = $33.50).

      . Appellant has maintained her in forma pauperis status throughout these proceedings.

      . The in forma pauperis amendments to Rule 206 were effective as of June 25, 1992. See Comment, Rule 206. The repeal of section 1725(a)(1) was not effective until February 12, 1993. See Act of December 14, 1992, P.L. 872, No. 140, § 5. Thus, the statute was still in existence when the Rule 206 amendments went into effect.

      . Of course, a party whose financial condition improves would be obligated to pay the filing and service fees. See Rule 206E(vi) (requiring an in forma pauperis petition to include a statement in which the petitioner acknowledges his or her continuing obligation to inform the Court of improvement in financial circumstances which would permit him or her to pay the costs incurred in prosecuting the action). However, we are not presented with this situation here, because appellant has remained indigent throughout the litigation.