Appeals, Nos. 185 and 227, March T., 1961, from order of Court of Common Pleas of Allegheny County, Jan. T., 1961, Ex. No. 833, Jan. T., 1961, No. DSB 4349, in case of Universal Builders Supply, Inc. v. Shaler Highlands Corporation et al. Order reversed.
John A. Metz, Jr., with him Guy L. Warman, and Metz, Cook, Hanna & Kelly, for appellant.
John F. Gloeckner, for appellee.
William L. Jacob, with him William L. Jacob, Jr., for intervening appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
The instant appeals, involving three Pennsylvania corporations, question the propriety of an order of the Court of Common Pleas of Allegheny County which made absolute a rule to stay an execution on a judgment and, by the same order, disposed of a petition and rule to open judgment without affording an opportunity for answer or hearing.
On July 13, 1957, Shaler Highlands Corporation (Shaler), owning 37 acres of land in Shaler Township,
Allegheny County, and desirous of developing the same, entered into an agreement with Universal Builders Supply, Inc. (Universal) whereby Universal was to advance to Shaler not more than $50,000 in exchange for a $90,000 mortgage.*fn1 Pursuant to this agreement Universal advanced to Shaler only $18,978.95. Differences thereafter arose between the parties and Universal decided to foreclose, at which time, August 14, 1959, Shaler instituted an equity action to restrain the contemplated foreclosure and seeking other relief. Following the taking of testimony and negotiations, a consent decree was entered which provided, inter alia: "... It is ordered and decreed that Shaler Highlands Corporation, plaintiff, shall pay to Universal Builders Supply, Inc., defendant, the sum of Twenty-nine thousand ($29,000) Dollars within sixty days from the date of this order and in addition interest at the rate of six per cent per annum, Shaler to have the privilege of anticipating the entire amount or any part thereof. In the event payment is not made as herein provided, Universal Builders Supply, Inc., shall have the right to proceed on its mortgage covering properties of plaintiff without further delay." (Emphasis supplied.)
Shaler failed to pay the agreed sum, or any part thereof, within the sixty day time limit which expired on December 20, 1960 and on December 23, 1960, Universal entered judgment by confession and issued execution thereon against Shaler on the mortgage bond for $58,978.95 plus interest at 4% from July 13, 1957 ...