Greater Pittsburgh Business Development Corp. v. Braunstein

568 A.2d 1261, 390 Pa. Super. 454, 1989 Pa. Super. LEXIS 3746
CourtSuperior Court of Pennsylvania
DecidedDecember 15, 1989
DocketNo. 749
StatusPublished
Cited by12 cases

This text of 568 A.2d 1261 (Greater Pittsburgh Business Development Corp. v. Braunstein) 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
Greater Pittsburgh Business Development Corp. v. Braunstein, 568 A.2d 1261, 390 Pa. Super. 454, 1989 Pa. Super. LEXIS 3746 (Pa. Ct. App. 1989).

Opinion

KELLY, Judge:

In this opinion, we are called upon to determine whether the trial court erred when it denied a petition to set aside a sheriffs sale of personalty which had alleged that the price was grossly inadequate; that the personalty was described in a vague manner; that the applicable notice provisions of the Pennsylvania Rules of Civil Procedure were not fol[456]*456lowed; and, that the applicant’s due process rights were violated. We affirm the order of the trial court.

The facts and procedural history may be summarized as follows. Appellee, Greater Pittsburgh Business Development Corporation, (“Corporation”), through its trustee, Philip E. Beard, filed an action in the United States Bankruptcy Court for the Western District of Pennsylvania against Melvin A. Braunstein, an individual D/B/A M.A. Braunstein Company, (“Braunstein”), a scrap and salvage dealer, to recover certain rents due for property rented by Braunstein. On April 20, 1987, an order was entered in the Bankruptcy Court in favor of the Corporation and against Braunstein in the amount of $81,948.32. Braunstein appealed; however, no bond was posted to stay execution.

A judgment roll of the Bankruptcy Court judgment was recorded with the Court of Common Pleas of Allegheny County on July 8, 1987, and on September 8, 1987, the Corporation filed its writ of execution. The Deputy Sheriff of Allegheny County levied upon Braunstein’s personal property in October of 1987. On November 10, 1987, Braunstein filed a motion to compel the sale of the personal property on an item by item basis, which was denied. A sheriff’s sale was scheduled for November 12, 1987, but was postponed until January 27, 1988. On that date, at the time scheduled for the sale, counsel for the Corporation requested postponement. The Deputy Sheriff then announced that the sale would be rescheduled for February 3, 1988. The sheriff’s sale was conducted on February 3, 1988, and concluded for the price of $2350.00. On February 5, 1988, Braunstein filed a motion to set aside the sheriff sale. The Corporation filed a reply to Braunstein’s motion. On March 3, 1988, the trial court denied Braunstein’s motion and its order was entered on the docket.

On April 12, 1988, Braunstein filed a motion to vacate, reconsider, or redocket the trial court’s order of March 3, 1988, alleging that he did not receive notice of the entry of the order and requesting the trial court to vacate, reconsider and/or redocket the order to preserve his appellate [457]*457rights. On April 14, 1988, the Corporation filed a reply in which it was acknowledged that notice of the order entered March 3,1988, was not received in the mail, but alleged that the notice published in the Pittsburgh Legal Journal on March 9, 1988, was an adequate substitute. On April 15, 1988, the court entered an order which vacated the March 3, 1988 order, and which denied Braunstein’s motion to set aside the sheriff’s sale. On May 11, 1988, Braunstein filed this appeal.

Review of the docket reveals that notice of the entry of the March 3, 1988 order was not sent to the parties as required by Pa.R.C.P. 236(b). A proper appeal could not be filed until the court entered its April 15, 1988 order and notice was properly sent to the parties. See Speight v. Burens, 371 Pa.Super. 478, 481 n. 3, 538 A.2d 542, 543 n. 3 (1988); Estate of Keefauver, 359 Pa.Super. 336, 338-339, 518 A.2d 1263, 1264-1265 (1986); see also Pa.R.A.P. 903(a) and 108(b); Pa.R.C.P. 236(b). Hence, we find the appeal to have been timely.

On appeal, Braunstein raises the following issue for our consideration:

Whether the lower court erred in denying issuance to Melvin A. Braunstein d/b/a M.A. Braunstein Company of a rule to show cause why sheriff’s sale of personal property should not be set aside, where Melvin A. Braunstein has asserted errors in the levy, post-levy, and conduct of sale on the personal property of Melvin A. Braunstein as well as a constitutional infirmity in the procedures for Sheriff Sales of personal property under the Pennsylvania Rules of Civil Procedure.

(Appellant/Braunstein’s Brief at 5). For the reasons which follow, we find that the trial court committed no errors, and we affirm its denial of Braunstein’s petition to set aside the sheriff sale.

Initially, we note that this appeal arises from the denial of a petition to set aside a sheriff’s sale that was filed pursuant to Pa.R.C.P. 3132 which provides:

[458]*458Upon 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 or enter any other order which may be just and proper under the circumstances.

Pa.R.C.P. 3132. Such petitions are grounded in equitable principles and are addressed to the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of discretion. Bornman v. Gordon, 363 Pa.Super. 607, 611, 527 A.2d 109, 111 (1987) (collecting cases), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988); Continental Bank v. Frank, 343 Pa.Super. 477, 484, 495 A.2d 565, 568 (1985). As a general rule, the burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriff’s sale may be refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence. Bornman v. Gordon, supra.

With these principles in mind, we turn to the specific claims raised here on appeal. Braunstein contends that the trial court erred in denying his petition to set aside the sheriff sale because (1) the failure to sell the personal property on an item by item basis resulted in a grossly inadequate price; (2) the personal property was described in an impermissibly vague manner; (3) the Rules of Civil Procedure which pertain to sheriff's sales were not properly followed; and (4) the sheriffs sale procedures violated his right to due process. We find no merit in Braunstein’s contentions.

I. Alleged Gross Inadequacy of Sheriffs Sale Price

Braunstein contends that a grossly inadequate price was obtained from the sale because the items were sold in bulk and not on an item by item basis. Prior to the sale, Braunstein made a motion to complete the sale on an item by item basis which was denied. Braunstein argues that if [459]*459the items had not been sold in bulk, a greater amount could have been obtained.

While mere inadequacy of price is not a sufficient basis for setting aside a sheriffs sale, it has long been established that gross inadequacy of price is a sufficient basis. Continental Bank v. Frank, supra, 495 A.2d at 568 (citations omitted) (emphasis added). Absent evidence of the actual or estimated value of the property sold, however, a determination of gross inadequacy cannot be made. Bornman v. Gordon, supra, 527 A.2d at 112.

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GREATER PTSBGH. BUS. DEV. CORP. v. Braunstein
568 A.2d 1261 (Supreme Court of Pennsylvania, 1989)

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Bluebook (online)
568 A.2d 1261, 390 Pa. Super. 454, 1989 Pa. Super. LEXIS 3746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greater-pittsburgh-business-development-corp-v-braunstein-pasuperct-1989.