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COMMONWEALTH TO USE SMOLOVITZ ET UX. v. AMERICAN SURETY COMPANY NEW YORK. (03/18/59)

March 18, 1959

COMMONWEALTH TO THE USE OF SMOLOVITZ ET UX., APPELLANTS,
v.
AMERICAN SURETY COMPANY OF NEW YORK.



Appeal, No. 198, April T., 1958, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1956, No. 3355, in case of Commonwealth of Pennsylvania to the use of Gerald Smolovitz et ux. v. American Surety Company of New York. Judgment reversed.

COUNSEL

Samuel M. Rosenzweig, with him Aaron Rosenzweig, for appellants.

William F. Donatelli, with him James M. McCandless, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Gunther

[ 188 Pa. Super. Page 514]

OPINION BY GUNTHER, J.

This appeal was taken from the refusal of the court below to grant a motion for a new trial.

The action was in assumpsit brought by appellants against American Surety Company of New York on a bond conditioned for the faithful performance of the duties of a Notary Public. The jury rendered a verdict for appellee.

[ 188 Pa. Super. Page 515]

The record reveals that Gerald Smolovitz and Lois Eileen Smolovitz purchased a dwelling from Lucas Construction Company of which Harvey L. Lucas was president. To finance the deal a mortgage was secured from East Park Savings and Loan Association. The settlement took place on October 13, 1954 at the office of attorney Maurice J. Arnd, who represented the loan association. Present also at the closing were Samuel Rosenzweig, representing the appellants, and John E. Powell who was associated with Lucas Construction Company. Mr. Powell presented a Release of Mechanics Lien the affidavit of which was signed by Harvey L. Lucas, and the notary in the case was Miss A. M. Fehily. It now appears from the record that Mr. Lucas did not come before the notary at any time during the day of October 13, 1954 when the notarial seal and certification were affixed. The release of liens was completely filled with signatures of subcontractors and material men, several of which were the signatures of H. L. Lucas, Lucas Const. Co. Mr. Lucas who was to have made the affidavit according to the statement of the notary did not appear at any time in connection with this closing; the affidavit was made in his absence.

Sometime after October 13, 1954, seven Mechanic's Liens were filed against the property purchased by the appellants. The obligations amounted to $3,512.63 including interest and costs. It was subsequently disclosed that H. L. Lucas signed the releases of liens, but did not sign the affidavits to these releases. The signature, "Harvey L. Lucas", in the affidavit was not his signature, although the Notary Public certified that he was present, and that the signature was his. Did this improper certification breach the faithful performance condition of the bond upon which this suit was brought?

[ 188 Pa. Super. Page 516]

Appellee contends that there is no legal requirement that the release of liens be notarized. Appellants, however, argue that the distribution of the funds was made relying upon the affidavit as to the authenticity of the release of liens. The appellee presented no testimony; ...


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