J-S51014-16

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEVON SERVICE, LLC, SUCCESSOR BY 

ASSIGNMENT TO CUSTOMERS BANK 

F/K/A NEW CENTURY BANK

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID HANLY, SR. AND EVELYN HANLY

Appellants No. 65 EDA 2016

Appeal from the Judgment Entered January 22, 2016

In the Court of Common Pleas of Delaware County

Civil Division at No(s): 2013-11676

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 22, 2016

Appellants, David Hanly, Sr. and Evelyn Hanly, appeal from the 

judgment entered in the Delaware County Court of Common Pleas, in favor 

of Appellee, Devon Service, LLC (“Devon Service”), successor by assignment 

to Customers Bank f/k/a New Century Bank (“Customers Bank”), in this 

action to fix the fair market value of real property pursuant to the Deficiency 

Judgment Act. We affirm. 

The relevant facts and procedural history of this case are as follows. 

On November 25, 2013, Customers Bank filed a complaint against 

Appellants seeking judgment in mortgage foreclosure of real property 

located at 213 Collingdale Avenue, Collingdale, Pennsylvania (“Collingdale 
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property”).1 On April 16, 2015, the parties entered a stipulation consenting 

to entry of judgment in mortgage foreclosure on the Collingdale property in 

the amount of $309,451.37; and for issuance of a writ of execution for 

sheriff’s sale. On September 18, 2015, Devon Service (the successor by 

assignment to Customers Bank) purchased the Collingdale property at a 

sheriff’s sale for one dollar. 

On October 23, 2015, Devon Service filed a petition to fix the fair 

market value of the Collingdale property pursuant to the Deficiency 

Judgment Act.2 Devon Service claimed the fair market value of the 

Collingdale property was $120,000.00 based on an appraisal report issued 

by Benchmark Appraisal Group. Appellants responded on November 10, 

2015, alleging the combined fair market value of the Collingdale property 

and the MacDade property was $750,000.00. The court held a hearing on 

the petition on November 30, 2015. On December 4, 2015, the court fixed 

the fair market value of the Collingdale property at $120,000.00. Appellants 

____________________________________________

1 Customers Bank filed a separate complaint against Appellants seeking 

judgment in mortgage foreclosure of real property located at 829 MacDade 

Boulevard, Collingdale, Pennsylvania (“MacDade property”). The MacDade 

property is the subject of a separate appeal at docket No. 50 EDA 2016. 

2 See 42 Pa.C.S.A. § 8103(a) (stating whenever real property is sold to 

judgment creditor in execution proceedings and price for which such 

property has been sold is not sufficient to satisfy amount of judgment, 

interest and costs and judgment creditor seeks to collect balance due on said 

judgment, interest and costs, judgment creditor shall petition court to fix fair 

market value of real property sold).
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timely filed post-trial motions on December 11, 2015, which the court denied 

on December 22, 2015. On December 29, 2015, Appellants filed a 

premature notice of appeal. Devon Service subsequently filed a praecipe to 

enter judgment on the verdict and to assess damages, which the court 

entered on January 22, 2016.3 The court did not order Appellants to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and Appellants filed none. 

Appellants raise one issue for our review:

DID THE TRIAL COURT HAVE SUFFICIENT EVIDENCE TO 

SUSTAIN ITS DETERMINATION THAT THE FAIR MARKET 

VALUE OF THE REAL PROPERTY LOCATED AT 213 

COLLINGDALE AVENUE, COLLINGDALE, PENNSYLVANIA, 

WAS ONE HUNDRED AND TWENTY THOUSAND DOLLARS 

($120,000.00) WHEN APPELLANTS SUBMITTED TWO (2) 

AGREEMENTS OF SALE AND TESTIMONY FROM A WILLING 

PURCHASER ESTABLISHING THE FAIR MARKET VALUE OF 

THE SUBJECT PREMISES FOR A COMBINED PURCHASE 

PRICE OF SEVEN HUNDRED AND FIFTY THOUSAND 

DOLLARS ($750,000.00)?

____________________________________________

3 Ordinarily, an appeal properly lies from the entry of judgment, not from 

the order denying post-trial motions. See generally Johnston the Florist, 

Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa.Super. 1995) (en banc). 

Nevertheless, a final judgment entered during pendency of an appeal is 

sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and 

Supply, Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 569 Pa. 693, 

803 A.2d 735 (2002). Here, Appellants filed a notice of appeal prematurely 

on December 29, 2015, prior to the entry of judgment. Thus, Appellants’ 

notice of appeal relates forward to January 22, 2016, the date judgment was 

entered and damages were assessed. See Pa.R.A.P. 905(a)(5) (stating 

notice of appeal filed after court’s determination but before entry of 

appealable order shall be treated as filed after such entry and on date of 

entry). Hence, no jurisdictional defects impede our review. 
J-S51014-16

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(Appellants’ Brief at 4) (internal footnote omitted). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Spiros E. 

Angelos, we conclude Appellants’ issue merits no relief. The trial court 

opinion comprehensively discusses and properly disposes of the question 

presented. (See Trial Court Opinion, filed February 19, 2016, at 4-5) 

(finding: credible testimony of Devon Service’s licensed appraiser and 

appraisal report supported determination that fair market value of 

Collingdale property was $120,000.00; appraisal report considered condition 

and characteristics of property, comparable sales, uses to which property is 

adapted, neighborhood characteristics, rental income of comparable 

properties, and market demand; Appellants’ proffered testimony and 

evidence regarding prior offer to purchase Collingdale and MacDade 

properties was not determinative of fair market value, particularly where 

offer to purchase was contingent on occurrence of certain events which were 

beyond Appellants’ control, including sale of other properties and relocation 

of nearby library; further, potential buyer testified he was no longer 

interested in purchasing Collingdale and MacDade properties due to 

unavailability of another property which buyer sought to acquire along with 

Collingdale and MacDade properties). Accordingly, we affirm on the basis of 

the trial court’s opinion. 

Judgment affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2016
on October 23, 2015. Appellant filed a response to the petition on November 10, 2015 asserting 

Pa.C.S.A. § 8103(a), Ex. B. Appellee filed their petition to fix fair market value of the property 

execution proceedings. See, Pet. to Fix Fair Market Value of Real Property Pursuant to 42 

judgment debtors in the instant matter, owned the property, which was sold to Appellee in 

See, Praecipe to Mark Judgment to the Use of Devon Service, LLC; Ex. P7. Appellants, the 

Appellee/Plaintiff, Devon Service, LLC, is the judgment creditor in the instant matter. 

PROCEDURAL AND FACTUAL HISTORY 

evidence and, therefore, the December 3, 2015 Order should not be disturbed. 

($120,000.00) pursuant to 42 Pa.C.S.A. § 8103(c). The determination is supported by sufficient 

Collingdale, Pennsylvania ("the property") at one hundred twenty thousand dollars 

3, 2015 Order fixing the fair market value of real property located at 213 Collingdale Avenue, 

Appellants/Defendants, David Hanly, Sr. and Evelyn Hanly, appeal from the December 

OPINION 

ANGELOS,J. DATE: February 19, 2016 

Phillip D. Berger, Esquire-Counsel for Appellee/Plaintiff 

Jay M. Levin, Esquire - Counsel for Appellants/Defendants 

DAVID HANLY, SR. and EVELYN HANLY 

vs. 

DEVON SERVICE, LLC, successor by No. 13-11676 

assignment to CUSTOMERS BANK f/k/a 

NEW CENTURY BANK 

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

CIVIL ACTION - LAW 

Circulated 07/13/2016 04:15 PM
2 

I It should be noted that Appellants' representation that the December 3, 2015 Order had been 

reduced to judgment as of the filing of their notice of appeal is incorrect. Damages in 

accordance with the December 3, 2015 Order were neither assessed nor reduced to judgment 

until January 22, 2016 upon praecipe of Appellee. 

the judgment creditor shall petition the court to fix the fair market value of the real property 

and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, 

property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs 

indirectly, to the judgment creditor in execution proceedings and the price for which such 

Pursuant to 42 Pa.C.S.A. § 8103(a), "[w]henever any real property is sold, directly or 

DISCUSSION 

reconsideration on December 11, 2015, which was denied by Order dated December 22, 2105. 

Appellants filed a notice of appeal on December 29, 2015.1 

at one hundred twenty thousand dollars ($120,000.00). Appellants filed a motion for 

testimony, the December 3, 2015 Order was entered fixing the fair market value of the property 

fifty thousand dollars ($750,000.00). Joint Ex. 1; Ex. DI. After considering all evidence and 

offers to buy the property and a separate property owned by them for a total of seven hundred 

and evidence that in September 2014 and March 2015, Appellants received, but never executed, 

is one hundred twenty thousand dollars ($120,000.00). Ex. P2. Appellants offered testimony 

8, 2015 appraisal report of a licensed appraiser claiming that the fair market value of the property 

A hearing was held on November 30, 2015. Appellee offered the testimony and an April 

Pet. to Fix Fair Market Value of Real Property Pursuant to 42 Pa.C.S.A. § 8103(a), ,r 10. 

offer Appellants had previously received for the two (2) properties. See, Defs.' Resp. to Pl.'s 

execution proceedings was seven hundred fifty thousand dollars ($750,000.00) pursuant to an 

that the combined fair market value of the property and other real property sold in separate 
sold." If the judgment debtor files an answer asserting that the fair market value of the property 

is more than that stated in the petition, the trial court must hear evidence and determine the fair 

market value. 42 Pa.C.S.A. § 8103(c)(4). The hearing on the petition is limited to issues raised 

in the judgment debtor's answer. Pa.R.C.P. 3285. 

When reviewing an order fixing fair market value, an appellate court is limited to 

determining whether there is sufficient evidence to sustain the holding of the trial court, or 

whether the court committed reversible error of law. Union Nat. Bank of Pittsburgh v. Crump, 

349 Pa. 339, 342, 37 A.2d 733, 734 (1944); Bryn Mawr Trust Co. v. Healy, 446 Pa. Super. 501, 

505, 667 A.2d 719, 721 (1995). The record must be viewed in a light most favorable to the 

verdict winner. Confederation Life Ins. Co. v. Morrisville Properties, L.P. & Site Dev., Inc., 715 

A.2d 1147, 1154 (Pa. Super. Ct. 1998). Furthermore, it is the trial court that weighs the 

credibility of testimony and evidence concerning valuation, including the weight to be given to 

expert testimony. Id.; Bryn Mawr Trust Co. v. Healy, 446 Pa. Super. 501, 508, 667 A.2d 719, 

723 (1995); Mellon Bank (E.) Nat. Ass'n v. Pennsylvania Rest. of A.B.E., Inc., 364 Pa. Super. 

567, 570, 528 A.2d 654, 655 (1987). 

Fair market value has been determined to be "the price a purchaser, who is willing but 

not obligated to buy, would pay an owner, who is willing but not obligated to sell." Bryn Mawr 

Trust Co. v. Healy, 446 Pa. Super. 501, 508, 667 A.2d 719, 723 (1995). Stated differently, the 

trial court must consider the reasonable value "the judgment creditor can get out of the property 

in partial or complete recapture of the loan and interest on loan." First Pennsylvania Bank, NA 

v. Peace Valley Lakeside Cmty. & Agr. Trust, Inc., 329 Pa. Super. 218, 222, 478 A.2d 42, 44 

(1984). Factors that a court may consider when determining fair market value include recent 

sales of realty of comparable location and description, uses to which the realty is adapted and 

3 
might reasonably be applied, demand for the realty, income produced by it, and all elements 

which might affect its actual value. Union Nat. Bank of Pittsburgh v. Crump, 349 Pa. 339, 343, 

37 A.2d 733, 735 (1944); Confederation Life Ins. Co. v. Morrisville Properties, L.P. &Site Dev., 

Inc., 715 A.2d 1147, 1154 (Pa. Super. Ct. 1998). An offer to purchase property, while having 

some evidentiary value, is not conclusive of the fair market value. Union Nat. Bank of 

Pittsburgh v. Crump, 349 Pa. 339, 343, 37 A.2d 733, 735 (1944); Mellon Bank (E.) Nat. Ass'n v. 

Pennsylvania Rest. of A.B.E., Inc., 364 Pa. Super. 567, 572-73, 528 A.2d 654, 655 (1987). 

Likewise, consideration of the "highest and best use" of the property is also not conclusive in 

determining fair market value in a deficiency judgment proceeding. First Pennsylvania Bank, 

NA. v. Peace Valley Lakeside Cmty. & Agr. Trust, Inc., 329 Pa. Super. 218, 225, 478 A.2d 42, 

45 (1984) (noting that although such has become an element for consideration in condemnation 

cases, the factors listed by the Pennsylvania Supreme Court in Union Nat. Bank of Pittsburgh v. 

Crump, supra, remain the landmark authority in deficiency judgment proceedings). 

In the instant matter, the fixed fair market value of one hundred twenty thousand dollars 

($120,000.00) is sufficiently supported by the testimony and appraisal report of a licensed 

appraiser, which was found to be credible. That report took into consideration the condition and 

characteristics of the property, comparable sales, uses to which the property is adapted, 

neighborhood characteristics, rental income, rental income of comparable properties, and market 

demand. Ex. P2. The testimony and evidence offered by Appellants concerning some prior offer 

is not determinative of the property's fair market value, especially considering the offer was 

conditioned on the occurrence of several prerequisites outside of Appellants' control, including 

the sale of other properties and the relocation of a library. Furthermore, there was testimony that 

the buyer who made the offer was no longer interested in purchasing the property and that the 

4 
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For the foregoing reasons, the Order of December 3, 2015, 2015 should not be disturbed. 

get for the property, was the testimony and appraisal report offered by Appellee. 

evidence of the current fair market value of the property, the value that the judgment creditor can 

unavailability of one of the other necessary properties. Therefore, the only testimony and 

use of the property proposed by the buyer was no longer a viable option because of the