REG 42578

March 27, 1991

Essex, ss.



This is a complaint brought by Alfio D'Agata to bring within the operation of Chapter 185, section l (a) of the General Laws the title to land claimed by him on Essex Street in Lawrence in the County of Essex and more specifically shown on a plan entitled "Plan of Land in Lawrence, Mass." dated March 1989 by Stowers Associates, Inc. (Exhibit No. 1). Title to the property rests on a sale by a deputy sheriff for the County of Essex on execution from the Superior Court for the County of Essex. The plaintiff, the judgment creditor, purchased the property at the sheriff's sale and now seeks to register his title. The title also is claimed by Tony J. Pappalardo, the prior owner of the premises and the judgment debtor.

A trial was held at the Land Court on February 27, 1991 at which a stenographer was appointed to record and transcribe the testimony. Five exhibits were introduced into evidence. The Land Court Examiner, Wayne L. Belair, testified for the plaintiff as did Vincent Manzi, the counsel for the plaintiff at the time of the District and Superior Court litigation. The defendant Tony J. Pappalardo was not represented by counsel, and I denied his request to testify. Mr. Pappalardo has had several opportunities, however, to present his case to the Court.

On all the evidence I find and rule as follows:

1. Mr. Pappalardo acquired title to the premises in question situated on Essex Street in Lawrence, with a frontage on said street of 25 feet and a depth of approximately 93 feet from Santo J. Smeriglio et al by deed dated March 16, 1959 and recorded with Essex North District Registry of Deeds (to which registry all recording references herein refer) in Book 890, Page 102. The property was mortgaged by Mr. Pappalardo first to the Essex Savings Bank by instrument dated March 16, 1959 and recorded in Book 890, Page 103 and secondly to his sellers by instrument dated March 16, 1959 and recorded in Book 890, Page 104. Both of these mortgages have been discharged (Exhibit No. 4, Sheets 14 and 15). Subsequently Mr. Pappalardo mortgaged the premises to what is now Essex Broadway Savings Bank by instrument dated November 19, 1971 and recorded in Book 1183, Page 530 (Exhibit No. 4, Sheet 17). This mortgage is outstanding and remains prior to the plaintiff's rights.

2. The events which give rise to this litigation then occurred. Mr. Pappalardo apparently argues that he solicited bids for work to be done for his now deceased brother, with funds to be obtained from the Veterans' Administration and that the work for which the plaintiff recovered judgment was unauthorized. It has already been determined, however, in two bench trials in the District Court and by a trial by a jury of twelve in the Superior Court that Mr. Pappalardo is indebted to the plaintiff. At these trials Mr. Pappalardo was represented by counsel and contended then, as now, that the plaintiff was unlicensed and was not entitled to recover for his services. The judges and jury found otherwise.

3. At the trial I attempted to explain to Mr. Pappalardo that any questions of liability between the plaintiff and the defendant in this action had been resolved against him in the Superior Court where he had been represented by counsel and that there could be no recourse in the Land Court. He raised a question relative to notice to him in the Superior Court of the dismissal of the leave previously granted to him to appeal late, but the Land Court is not the proper forum for this dispute. It must be resolved in the other department.

4. After the conclusion of the Superior Court case an execution was issued in the amount of $4,999.98 plus costs in the amount of $85.15. Pursuant to such execution Robert E. Curran, a deputy sheriff for the County of Essex, sold the premises at a public auction in accordance with the statutory provisions to Alfie D'Agata (Exhibit No. 2). The return to Court is Exhibit No. 3.

5. A year elapsed without the redemption from the sheriff's sale, and accordingly it has now become final.

I am disturbed by the situation in which Mr. Pappalardo finds himself and regret that he is unable to understand and accept the disposition made in the District and Superior Courts. He has represented to me that he had funds to pay the judgment, but in fact he did not do so. No one could doubt his sincerity or regret the unhappy course of events which have befallen him including his brother's death. However, he has had three trials previously at which he was represented by counsel, and all of which were determined adversely to him. This Court is without jurisdiction to collaterally attack the judgments in other departments of the Trial Court and accordingly I find for the plaintiff. The sale by the deputy sheriff which is within our purview appears to have been conducted regularly and in accordance with the statute.

A decree may be entered registering the plaintiff's title to the premises subject to such matters as appear in the abstract and are not in issue here and subject also to service being obtained on Nunzio DeMarca, the owner of the lot across the alley on which the locus abuts.

Judgment accordingly.