Atwood Home Builders, Inc. v. Zanakis
Atwood Home Builders, Inc. v. Zanakis
Opinion of the Court
Judge GLADDEN of the Washington County Court of Common Pleas entered an order staying, pending disposition of another case,
This case is one of three cases, now consolidated before this court. It was filed in May 1978 by a home improvement company, Atwood, against a customer, Zanakis, as a Complaint in Assumpsit alleging breach of a contract to pay $14,000.00 for work done, pursuant to contract, to Ms. Zanakis’ home. Subsequently, the action came before an Arbitrator, the outcome of which procedure was a consent judgment against Zanakis for $11,000.00.
Irene G. Straka, Appellant, [Straka] is the daughter of Zanakis. A few days after the work by Atwood was completed, Zanakis conveyed the real estate in question to Straka. Twelve days before the stay, Straka filed an action in Equity
Atwood asserts that Straka has no standing to appeal Judge SWEET’s order vacating Judge GLADDEN’s order granting a stay, because she was not a party to the proceedings, and had not petitioned to intervene.
Pa.R.A.P. 501 provides that an aggrieved party may appeal from an appealable order.
Pa.R.C.P. 3121(a) provides in relevant part:
*191 (a) Execution shall be stayed as to all or any part of the property of the defendant
(2) upon the entry of bond with the prothonotary, by any person or party in interest, with security approved by the prothonotary, in the amount of plaintiff’s judgment, including probable interest and costs, or in such lesser amount as the court may direct, naming the Commonwealth of Pennsylvania as obligee, and conditioned to pay the amount due within ninety (90) days of the entry of the bond, unless the time for payment be further extended by the court[.]
(Emphasis supplied). This seems to require that it be a party in interest who files the bond to obtain a stay of execution.
From the record it is not possible for us to determine whether or not the lower court considered and decided that Straka was a party in interest.
We are thus faced with the question of the propriety of Judge SWEET’s order overturning the stay. Appellant
The question still remains, though, whether Judge SWEET properly vacated the stay. The stay was ordered pending disposition of another case. There is no information in the record as to the disposition of that other case. We see, therefore, no reason why the stay should have been vacated, inasmuch as Atwood was protected by the posting of the bond.
Atwood’s Motion to Dismiss the Order Staying Execution contains both statements of fact and conclusions of law. Yet the motion was granted without a hearing. Without testimony as to Atwood’s allegations, and without reasons from the lower court as to why the judge vacated the stay order, we have no information by which to review the matter. We therefore vacate the order of the lower court and remand the case for a hearing on the Motion to Dismiss the Order Staying Execution and for Payment of a Cash Bond.
. The other case was entitled, Irene G. Straka v. Atwood Home Builders, Inc., filed at No. 7604 in Equity, Book 44, Page 203, Court of Common Pleas, Washington County, on October 19, 1979. (There is confusion in the record and in the briefs before us as to whether this suit was filed at No. 7304 or at No. 7604.)
. See Atwood Home Builders, Inc. v. Mamie Zanakis, No. 120 May Term 1978, A.D., slip op. July 24, 1979 (C. P. Washington County, Pa.).
. Id.
. Atwood v. Zanakis, No. 120 May Term 1978, A.D., per curiam order filed October 11, 1979 (C. P. Washington County, Pa.).
. Atwood v. Zanakis, No. 120 May Term 1978, A.D., filed October 31, 1979 (C. P. Washington County, Pa.).
. Irene G. Straka v. Atwood Home Builders, Inc., see note 1 supra.
. Pa.R.A.P. 501 provides:
Rule 501. Any Aggrieved Party May Appeal
Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.
. Compare Taub v. Merriam, 251 Pa.Super.Ct. 572, 380 A.2d 1245 (1977) where the court said:
While ITT [a junior lender] was entitled to permission to intervene because of its legal interest in the land parcels under execution, the court’s refusal to permit intervention was not a denial of relief which ITT could obtain in no other way. At the very least appellant [ITT] was still entitled to seek relief under Pa.R.C.P. 3121(b) which it did.
Id., 251 Pa.Superior Ct. at 581, 380 A.2d at 1249 (emphasis added). Pa.R.C.P. 3121(b) provides:
(b) Execution may be stayed by the court as to all or any part of the property of the defendant upon its own motion or application of any party in interest showing
(1) a defect in the writ, levy or service; or
(2) any other legal or equitable ground therefor.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.