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KATHLEEN TOOLAN AND GERARD TOOLAN ON BEHALF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED v. TREVOSE FEDERAL SAVINGS AND LOAN ASSOCIATION (02/20/81)

filed: February 20, 1981.

KATHLEEN TOOLAN AND GERARD TOOLAN ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
TREVOSE FEDERAL SAVINGS AND LOAN ASSOCIATION



No. 2790 October Term, 1978, Appeal from Order of the Court of Common Pleas of Montgomery County, No. 77-21648 Sustaining Defendant's Preliminary Objections in the Nature of a Demurrer.

COUNSEL

Jeffrey S. Kahn, Norristown, for appellants.

John J. Kerrigan, Jr., Newtown, for appellee.

Spaeth, Stranahan, and Sugerman, JJ.*fn* Spaeth, J., concurs in the result.

Author: Stranahan

[ 288 Pa. Super. Page 212]

This matter is an appeal from an order of the Court of Common Pleas of Montgomery County sustaining the appellee's demur to the appellants' complaint. We affirm that order.

[ 288 Pa. Super. Page 213]

By demurring to the appellants' complaint, the appellee has admitted every well pled fact contained in that complaint for purposes of this appeal. Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971).

Those facts are as follows: Sometime in August of 1975, Gerard and Kathleen Toolan entered into a residential mortgage agreement with The Trevose Federal Savings and Loan Association (hereinafter Trevose). That agreement contained a prepayment penalty clause.

On July 7, 1977, the Toolans paid in full the outstanding balance on their mortgage. In paying off their mortgage at that time, the Toolans prepaid a substantial portion of that mortgage. Trevose charged the Toolans a prepayment penalty of $1,335.83 for doing so. The Toolans paid that penalty.

On December 16, 1977, the Toolans filed a class action suit against Trevose.*fn1 In their complaint, the Toolans alleged that Trevose violated section 405 of The Act of January 30, 1974, P.L. 13, No. 6, sec. 101 et seq. by imposing and collecting a penalty for prepayment of a residential mortgage.*fn2

Trevose filed a preliminary objection in the nature of a demurrer to that complaint. Trevose asserted that, as a Federal savings and loan association, it was subject to the rules and regulations promulgated by the Federal Home Loan Bank Board.*fn3 The Federal Home Loan Bank Board, pursuant to the rule making power ...


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