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FEDERAL LAND BANK BALTIMORE v. PHILIP JAY FETNER (09/14/79)

filed: September 14, 1979.

FEDERAL LAND BANK OF BALTIMORE
v.
PHILIP JAY FETNER, APPELLANT



No. 2096 October Term, 1978 Appeal from the Judgment of the Court of Common Pleas of Bucks County, Civil Action-Law, at No. 77-2577-04

COUNSEL

Paul R. Beckert, Jr., Fairless Hills, for appellant.

Paul L. Stevens, Morrisville, for appellee.

Van der Voort, Hester and Wieand, JJ.

Author: Van Der Voort

[ 269 Pa. Super. Page 458]

This is an appeal from a decision of the Court of Common Pleas of Bucks County, sitting without a jury, in a mortgage foreclosure action, in favor of the plaintiff/appellee, Federal Land Bank of Baltimore (hereinafter, the Bank) and against defendant/appellant, Philip Jay Fetner (hereinafter, appellant or Fetner), in the sum of $137,194.45, plus interest and costs of foreclosure. Counterclaims by the appellant were dismissed. Appellant appeals both from the judgment against him and the dismissal of his Counterclaims.

The Bank's Complaint alleged that on October 9, 1974, Fetner borrowed the sum of $117,500 from it, secured by a mortgage of some twenty-five acres of improved land located in Nockamixon Township, Bucks County. The Complaint alleged that Fetner defaulted on the mortgage by failing to pay some $8,106.36 in monthly installments due from July 1, 1976 to February 1, 1977 and by failing to pay real estate taxes in the amount of $1,659.16. The Complaint recited that as a result of these defaults, the Bank was exercising its right to acceleration under the terms of the mortgage.

[ 269 Pa. Super. Page 459]

Judgment was demanded for unmatured principal, monthly installments due, interest, real estate taxes and attorney's commission, totaling $137,195.45.

Fetner filed Preliminary Objections to the Bank's Complaint which were dismissed after briefs were submitted. He then filed a 169-paragraph document which included his Answer, New Matter and numerous Counterclaims. The Counterclaims consisted of eleven counts and sought aggregate damages, compensatory and punitive, in excess of $5,000,000.

The Bank's claim that appellant was in default in his mortgage payments was established by undisputed evidence. In appellant's Answer, he claimed to have made a $2,000 payment for which he was not given credit, but he offered no proof in support of this averment. In any event, this would not have cured the default which has continued since July 1, 1976.

Appellant has averred that the provision for a 10% counsel fee in the mortgage bond is unconscionable. The test of such a fee must be its reasonableness, determined by the circumstances of each case. As this court said in Foulke v. Hatfield Fair Grounds Bazaar, Inc., 196 Pa. Super. 155, 160, 173 A.2d 703, 706 (1969):

The mortgagee, having loaned a fixed sum of money, should recover both the principal and interest without diminution for ...


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