Commonwealth Bank v. Iorio

679 A.2d 820, 451 Pa. Super. 330, 1996 Pa. Super. LEXIS 2499
CourtSuperior Court of Pennsylvania
DecidedJuly 24, 1996
StatusPublished
Cited by4 cases

This text of 679 A.2d 820 (Commonwealth Bank v. Iorio) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Bank v. Iorio, 679 A.2d 820, 451 Pa. Super. 330, 1996 Pa. Super. LEXIS 2499 (Pa. Ct. App. 1996).

Opinion

KELLY, Judge:

In this appeal, we are called upon to determine whether the Common Pleas Court of Luzerne County properly granted the appel-lees, Mary lorio, Robert Eddowes and Lar-raine 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 Ed-dowes, 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 Ed-dowes 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.
[823]*8239. Robert Eddowes and Larraine Ed-dowes 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.
[824]*82426. 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.

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Bluebook (online)
679 A.2d 820, 451 Pa. Super. 330, 1996 Pa. Super. LEXIS 2499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-bank-v-iorio-pasuperct-1996.