No. 77 April Term, 1979 Appeal from Order dated December 27, 1978 in the Court of Common Pleas, Civil Division, Erie County, at No. 652-A-1977.
Paul F. Curry, Erie, for appellant.
Will J. Schaaf, Erie, for appellees.
Price, Cavanaugh and Watkins, JJ.
[ 277 Pa. Super. Page 310]
In June, 1968, the South Shore Development Corporation executed a mortgage, as mortgagor. The mortgagee was U. S. Steel Homes Credit Corporation, the appellant in this case. The mortgage was duly recorded in Erie County, Pennsylvania and was secured by three lots in a development known as the South Shores Estates. When the mortgage was signed, the mortgagee required personal guarantees by officials of the South Shore Development Corporation, namely, Michael Harris, Sheila Harris, George Y. Harris (now deceased), and Sylvia Harris. The individual guarantors signed a document separate from the mortgage.
In time, the mortgage was released by appellant as to two of the lots but remains in effect as to Lot No. 2, of the South Shore Estates Plan, the lot involved in this litigation.
On or about October 16, 1975, Lot No. 2 was conveyed to William Simitoski, the appellee in this case. Unfortunately, Mr. Simitoski was unaware of the existence of the mortgage on the lot which he purchased although a title search was made for him. The attorney making the title search overlooked the recorded mortgage and with this oversight, appellee's legal difficulties commenced. Shortly after Mr. Simitoski took possession of his real estate, a complaint in mortgage foreclosure was filed against him and others by the appellant. The amount owed on the mortgage at the time of the filing of the complaint was alleged to be approximately $34,500.00. It was also alleged that Simitoski had acquired the property (Lot No. 2) by deed from Ann Kaye and Robert D. Kaye, trading as A & R Realty. Mr. Simitoski was the only one to file an answer to the complaint.
A hearing was held in the mortgage foreclosure proceeding before McClelland, J., without a jury. At the hearing,
[ 277 Pa. Super. Page 311]
Mr. Simitoski's counsel tendered checks totaling $36,600.82 to the appellant which amount covered in full the principal, interest and costs owed to appellant on the mortgage. The checks were payable to the order of U. S. Steel Homes Credit Corporation and its attorney. Appellant was willing to assign the mortgage and bond and warrant to Mr. Simitoski and satisfy the mortgage but was unwilling to assign or transfer the document by which the Harrises assumed personal liability for payment of the mortgage.
On September 28, 1978, the court below entered the following order:
(1) William Simitoski is the owner and occupant of premises known as Lot No. 2, South Shore Estates, Plan No. 1, Erie County Map Book No. 7, Pg. 63, known as ...