Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right of Way, for Legislative Route 1068, Section 2 R/W, a/k/a Legislative Route 1068, Section AO2 a Limited Access Highway, in Dolyestown and Plumstead Townships. Commonwealth of Pennsylvania, Department of Transportation v. Arthur T. Sturgeon and Betty Ann Sturgeon, his wife, No. 72-2623-04-6.
John D. Trainer, with him William M. Power, for appellant.
No appearance for appellee.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
[ 16 Pa. Commw. Page 387]
The issue in this case is whether a mortgagee which has bought in the mortgaged property for its record costs at sheriff's sale on a judgment obtained in an action of mortgage foreclosure is entitled to payment from a fund produced in eminent domain proceedings of money owed on the mortgage in excess of the amount produced by a subsequent private sale of the property where (a) the condemnation of a part of the mortgaged property preceded the execution sale, (b) the mortgagee did not obtain a deficiency judgment, and (c) the fund produced by the condemnation remained undistributed until a time after the mortgagee's right to obtain a deficiency judgment had expired. We hold that it may not.
The sequence of events here was as follows:
February 10, 1972 -- the appellant, Federal National Mortgage Association, filed its complaint in mortgage foreclosure.
[ 16 Pa. Commw. Page 388]
March 22, 1972 -- the appellant took judgment by default in the mortgage foreclosure action.
Eo die -- the Commonwealth of Pennsylvania filed a declaration of taking of an easement over a portion of the mortgage premises.
June 9, 1972 -- the appellant purchased the mortgaged property at execution sale for its record costs.
October 20, 1972 -- the Commonwealth by allowance of Court deposited $3000 estimated ...