No. 2227 October Term, 1978, Appeal from the Order dated July 11, 1978 of the Court of Common Pleas of Montgomery County, Civil Action, No. 76-1041.
Ronald J. Levine, Philadelphia, for appellants.
Jess Leventhal, Philadelphia, for appellee.
Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a dissenting opinion.
[ 279 Pa. Super. Page 324]
Appellant John A. Berg brings this appeal from an Order of the court below refusing to release collateral posted for a bond. We affirm.
Pertinent facts are as follows. In 1975, appellee Alexander & Alexander, Inc., secured a judgment by default for $18,254.19 against various defendants, including Berg, in Philadelphia County, which judgment was then transferred to Montgomery County. Alexander obtained a writ of execution, but the defendants petitioned for and were granted a stay of execution, Pa.R.Civ.P. 3121. For the required bond, Berg posted $37,500.00 of his own preferred stock. The bond filed with the court on April 7, 1976 contained the following clause, the construction of which is much disputed by the parties:
Now if the said Obligor, [Berg] his heirs or his personal representatives, shall and will satisfy the judgment, interest
[ 279 Pa. Super. Page 325]
and costs, within ninety (90) days hereinafter, then the above obligation to be void and of no effect, and otherwise to be and to remain in full force and virtue until leave of Court is granted to further pursue the execution.
Following unsuccessful appeals to this Court and the Supreme Court challenging the default judgment,*fn1 Berg petitioned and was granted a modification of the judgment against him personally, fixing the amount at $502.00 plus interest. This sum he paid to Alexander, who then requested the court to vacate the stay of execution, which request was granted. Berg then petitioned for the return of his $37,500.00 worth of collateral stock, arguing that a necessary condition of the bond was satisfied, viz: "until leave of court is granted to further pursue the execution." Following argument, Berg's request was denied, and this appeal followed.
The lower court and appellee Alexander argue that the quoted portion of the bond contains two conditions, both of which must be fulfilled before the collateral may be released: 1) the obligor must satisfy the full judgment, and (2) the court must grant leave to further pursue execution. Berg counters that these two conditions are in the disjunctive. He concedes that the first condition has not yet been met since his payment of $502.00 plus interest does not satisfy the full amount due from him as obligor. But he avers that the fulfillment of the second condition, leave to pursue execution, is sufficient to now authorize release of the collateral.
The covenants in a bond should be construed to mean what the parties intended, so far as that intention can be ascertained from the language. If the language is not free from doubt, however, the circumstances surrounding the making of the bond and the particular purposes for which it was given should be taken into account. In any event, the provisions ...