MEMORANDUM BY GANTMAN, P.J.
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 property").
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.
Appellants raise one issue for our review:
(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. (
Judgment affirmed.
Phillip D. Berger, Esquire — Counsel for Appellee/Plaintiff.
Jay M. Levin, Esquire — Counsel for Appellants/Defendants.
Appellants/Defendants, David Hanly, Sr. and Evelyn Hanly, appeal from the December 3, 2015 Order fixing the fair market value of real property located at 213 Collingdale Avenue, Collingdale, Pennsylvania ("the property") at one hundred twenty thousand dollars ($120,000.00) pursuant to 42 Pa.C.S.A. § 8103(c). The determination is supported by sufficient evidence and, therefore, the December 3, 2015 Order should not be disturbed.
Appellee/Plaintiff, Devon Service, LLC, is the judgment creditor in the instant matter. See, Praecipe to Mark Judgment to the Use of Devon Service, LLC; Ex. P7. Appellants, the judgment debtors in the instant matter, owned the property, which was sold to Appellee in execution proceedings. See, Pet. to Fix Fair Market Value of Real Property Pursuant to 42 Pa.C.S.A. § 8103(a), Ex. B. Appellee filed their petition to fix fair market value of the property on October 23, 2015. Appellant filed a response to the petition on November 10, 2015 asserting that the combined fair market value of the property and other real property sold in separate execution proceedings was seven hundred fifty thousand dollars ($750,000.00) pursuant to an offer Appellants had previously received for the two (2) properties. See, Defs.' Resp. to Pl.'s Pet. to Fix Fair Market Value of Real Property Pursuant to 42 Pa.C.S.A. § 8103(a), ¶ 10.
A hearing was held on November 30, 2015. Appellee offered the testimony and an April 8, 2015 appraisal report of a licensed appraiser claiming that the fair market value of the property is one hundred twenty thousand dollars ($120,000.00). Ex. P2. Appellants offered testimony and evidence that in September 2014 and March 2015, Appellants received, but never executed, offers to buy the property and a separate property owned by them for a total of seven hundred fifty thousand dollars ($750,000.00). Joint Ex. 1; Ex. D1. After considering all evidence and testimony, the December 3, 2015 Order was entered fixing the fair market value of the property at one hundred twenty thousand dollars ($120,000.00). Appellants filed a motion for reconsideration on December 11, 2015, which was denied by Order dated December 22, 2105. Appellants filed a notice of appeal on December 29, 2015.
Pursuant to 42 Pa.C.S.A. § 8103(a), "[w]henever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court to fix the fair market value of the real property 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 weight 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, N.A. 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 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, N.A. 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 use of the property proposed by the buyer was no longer a viable option because of the unavailability of one of the other necessary properties. Therefore, the only testimony and evidence of the current fair market value of the property, the value that the judgment creditor can get for the property, was the testimony and appraisal report offered by Appellee.
For the foregoing reasons, the Order of December 3, 2015, 2015 should not be disturbed.