Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KRETSCHMAN ET AL. v. STOLL ET AL. (12/22/75)

decided: December 22, 1975.

KRETSCHMAN ET AL.
v.
STOLL ET AL., APPELLANTS



Appeals from orders of Court of Common Pleas of Lancaster County, March T., 1972, No. 27, and Feb. T., 1973, No. 16, in case of Louis P. Kretschman, Jr. and Lois L. Kretschman v. Richard C. Stoll, Sr. and Dorothy R. Stoll and Harold E. Martin, individually, and Harold E. Martin, Attorney.

COUNSEL

Harold E. Martin, in propria persona, with him Richard C. Stoll, Sr., and Dorothy R. Stoll, in propriis personis, for appellants.

Louis P. Kretschman, Jr., in propria persona, with him Christopher S. Underhill, and Windolph, Burkholder & Hartman, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Hoffman, J.

Author: Price

[ 238 Pa. Super. Page 53]

This appeal was filed upon entry of the lower court's order refusing to strike a deficiency judgment against appellants Stolls, dismissing the petition of appellant Martin to strike the same deficiency judgment, refusing to set aside the sheriff's sale of property mortgaged to the Stolls, and dismissing the exceptions of all appellants to the sheriff's schedule of distribution of the proceeds of sale.

The factual background which gave rise to the appeal has been needlessly complicated by appellants in their efforts to retain the premises involved in this litigation. Briefly stated, the relevant facts are that on August 31, 1971, appellees [hereinafter, "the Kretschmans"] sold two parcels of real estate to the Stolls. In exchange, the Stolls executed two purchase money mortgages and bonds upon the premises. The amount of the mortgage on the property at 422 North Duke Street was $45,000 at 9% interest and that on the property at 420 North Duke Street was $10,000 at 9% interest. Soon after this transaction, the Stolls defaulted in their monthly payments and the Kretschmans instituted proceedings to recover the properties.

We will first consider the sole issue related to the 422 North Duke Street property, which was sold at sheriff's sale in July of 1972, to the Kretschmans for costs. Within six months, the Kretschmans instituted an action under the Deficiency Judgment Act, Act of July 16, 1941, P.L. 400, § 1 (12 P.S. § 2621.1) et seq. They obtained a deficiency judgment in April of 1973. This judgment was appealed by the Stolls, but the appeal was non prossed by this court on March 28, 1974.

In June of 1974, the Stolls renewed their attack on the deficiency judgment by filing a petition to strike. The petition was dismissed with prejudice by order of the lower court. That order is now before this court for disposition.

[ 238 Pa. Super. Page 54]

In July of 1974, appellant Martin also filed a petition to strike the deficiency judgment. After argument, the lower court dismissed his petition as well, and that action is contested in this appeal.

The only issue concerning the 422 North Duke Street property, therefore, is whether the deficiency judgment assessed against the Stolls was validly entered, pursuant to the Deficiency Judgment Act. Both appellants assert that the judgment was improperly entered, arguing that a deficiency judgment cannot follow a mortgage foreclosure, an in rem proceeding.

The case law is clear that the Deficiency Judgment Act may not be utilized to impose personal liability where a personal judgment has not been obtained. In Meco Realty Company v. Burns, 414 Pa. 495, 200 A.2d 869 (1964), the Pennsylvania Supreme Court indicated that the purpose of a judgment obtained through a mortgage foreclosure is to effect a judicial sale of the mortgaged property. Once the foreclosure sale takes place, the judgment is fulfilled. Any further action to assess a deficiency is null and void.

The same result was reached by this court in National Council of the Junior Order of United American Mechanics of the United States of North America v. Zytnick, 221 Pa. Superior Ct. 391, 293 A.2d 112 (1972), and in Hoffman Lumber Company v. Mitchell, 170 Pa. Superior Ct. 326, 85 A.2d 664 (1952).

Therefore, were appellants' assertions of the nature of the judgment obtained by the Kretschmans correct, we would be compelled to strike the judgment. However, appellants are not correct, and we will affirm the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.