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Elmer A. LUSKEY, Jr., et al. v. STEFFRON, INC., a corporation, Appellant

Supreme Court of Pennsylvania1975-04-17No. No. 71
461 Pa. 305336 A.2d 298

Summary

Holding. The court affirmed the decree setting aside the sheriff's sale, holding that Pennsylvania's notice provisions requiring only posted handbills and newspaper publication do not satisfy the constitutional requirement of due process when a judgment creditor seeks to execute on a debtor's real property.

The Luskeys owned two vacant parcels of land in Pittsburgh that they had previously foreclosed on and purchased at a sheriff's sale in 1970. Years later, a judgment creditor named Steffron acquired a judgment against the Luskeys and obtained a writ of execution on the same property. The sheriff conducted a sale in 1973 with notice provided only through posted handbills and newspaper publication, without any personal notice to the Luskeys. Steffron purchased the property for a fraction of its appraised value. The Luskeys challenged the sale in court, arguing the notice procedures violated their constitutional rights.

The court agreed with the Luskeys and invalidated the sheriff's sale. The court determined that the Pennsylvania rule requiring only handbill posting and newspaper publication fails to satisfy due process protections under the U.S. Constitution. The court reasoned that in modern society, property owners frequently live far from their real estate and cannot reasonably be expected to discover execution sales through handbills or local newspapers. The common law assumption that owners visit their property monthly no longer reflects contemporary reality, making such limited notice constitutionally inadequate.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether handbill posting and newspaper publication alone provide constitutionally adequate notice in a sheriff's sale of real property
  • Whether personal notice to property owners is required by due process in execution sales
  • Adequacy of notice procedures in modern urban property transactions

Procedural posture

The Luskeys appealed a decree in equity from the trial court (chancellor) that set aside a sheriff's sale of their property conducted by the judgment creditor Steffron.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

OPINION OF THE COURT

O’BRIEN, Justice.

This appeal arises from a final decree in equity which set aside a sheriff’s sale in Allegheny County.

The facts surrounding this appeal are as follows. In 1967 the Luskeys (appellees) of Slippery Rock, Lawrence County, were the record owners of two vacant parcels of land located in the Fifth Ward in the City of Pittsburgh. Subsequent to 1967, appellees sold the property and took back a bond and mortgage for the purchase price of the two parcels. The purchaser of the property defaulted on the mortgage and appellees foreclosed on the property and purchased the property at a sheriff’s sale on May 15, 1970. The sheriff’s deed to appellees was recorded on May 28,1970.

Subsequent to the above sheriff’s sale, a civil suit was filed against appellees by Albert B. Starr and, after hearing in which appellees participated, a judgment in the amount of $2,317.74 was entered against appellees on November 3, 1972. The judgment was not paid, and on April 4, 1973, Albert B. Starr assigned the judgment to appellant, Steffron, Inc. (Steffron). On April 10, 1973, Steffron, without notice to appellees, caused a writ of execution to issue against the property in the Fifth Ward in the City of Pittsburgh, and, pursuant to Pa.R.C.P. No. 3129, the sheriff posted handbills, advertised and sold the property at sheriff’s sale. On May 3, 1973, Steffron bought the property for $1,701.27 which amount comprised costs, taxes and liened water charges. The property had been valued at $52,000 previous to the sale. Steffron recorded its sheriff’s deed on November 30, 1973.

On November 13, 1973, the Luskeys entered into a sales agreement with appellee W. Anthony Dunn to sell him one of the parcels sold at the sheriff’s sale. The Luskeys then learned of the sheriff’s sale and brought an action to set aside the sale, and W. Anthony Dunn was permitted to intervene and adopt the Luskeys’ complaint.

The complaint alleged, inter alia, that the sale to Steffron should be set aside because the Luskeys received no personal notice of the proposed sheriff’s sale on May 3, 1973, at which time the property was bought by Steffron. The chancellor, after hearing argument on Steffron’s motion for judgment on the pleadings filed by Steffron, granted the Luskeys relief, holding that the sheriff’s sale to Steffron was null and void for lack of personal notice to the Luskeys. This appeal followed.

The thrust of appellees’ and the chancellor’s position is that Pa.R.C.P. No. 3129, which provides:

“(a) Notice of the sale of real property shall be given by the sheriff by handbills posted in the sheriff’s office, and upon the property at least ten (10) days prior to sale, briefly describing the property to be sold, its location, the improvements, if any, the judgment of the court on which sale is being held, the name of the owner or reputed owner and the time and place of sale.

“(b) Notice as provided in Subdivision (a) shall also be given by publication by the sheriff once a week for three (3) successive weeks in a newspaper of general circulation in the county and in the legal publication, if any, designated by rule of court for publication of notices, the first publication to be made not less than twenty-one (21) days before , the date of sale.”

denies due process of law in that it does not provide for personal notice to the owner of real estate that is the subject of a sheriff’s sale. We agree with that determination. In our opinion, the provisions for notice in Pa. R.C.P. No. 3129 does not satisfy the due process clause of the United States Constitution, The rule provides that the only notice that need be given to a record owner of real estate subject to a sheriff’s sale is the posting of handbills and notice in the newspaper of the county wherein the property is located. While this type of notice may have been sufficient in the time when the owners of real estate either resided on their real estate or lived in close proximity to it, such is not the situation today. In todays urban society, the owners of real estate often live far removed from the area wherein their property is situated. To expect a record owner to visit his property periodically to check for sheriff’s handbills or to read the newspaper of the district where his property is located is to accept the common-law presumption that an owner of real estate visits his property every thirty days; such is not the case in today’s society.

We therefore conclude that the notice provision of Pa. R.C.P. No. 3129 does not satisfy due process of law. Cf. Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 70 S. Ct. 652, 94 L.Ed. 865 (1950), cf. S & G Investment Inc. v. Home Federal Sav. & L. Ass’n, 505 F.2d 370 (D.C.Cir. 1974). See also Doherty v. Adal Corporation, 437 Pa. 109, 261 A.2d 311 (1970).

Decree affirmed. Each party to bear own costs.

ROBERTS, J., took no part in the consideration or decision of this case.

. See Philadelphia Local Rule 3129*.