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HELLAM TOWNSHIP v. NICHOLAS DICICCO (05/15/81)

filed: May 15, 1981.

HELLAM TOWNSHIP
v.
NICHOLAS DICICCO, SARA P. GANCARZ, COLNA, INC., AND REPUBLIC INSURANCE COMPANY. APPEAL OF REPUBLIC INSURANCE COMPANY



No. 209 March Term, 1979, Appeal from the Order of the Court of Common Pleas of York County, Civil Action, at No. 77-N-1847.

COUNSEL

Frank J. Goldenberg, York, for appellant.

Donald L. Reihart, York, for appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ.

Author: Watkins

[ 287 Pa. Super. Page 228]

This is an appeal from the Court of Common Pleas of York County, Civil Division and involves appellant's appeal from an order of the court below which refused to open a

[ 287 Pa. Super. Page 229]

    judgment that Hellam Township, the appellee, had confessed against the appellant.

On April 16, 1974, the defendants, Nicholas DiCicco, Sara P. Gancarz and Colna, Inc., as principals, and the defendant Republic Insurance Company, as surety, entered into a written agreement which included a surety bond, provided to Colna, Inc. by the appellant. The agreement called for Colna, Inc., to complete certain municipal improvements upon the grant of subdivision approval. The improvements were to be completed within two years of the date of the agreement. Appellant's surety bond was in the amount of $100,000.

Colna failed to complete the improvements and on April 16, 1976 appellee gave Colna written notice to complete same within 180 days. Colna failed to do so and on March 30, 1977 appellee confessed judgment against DiCicco, Gancarz, and Colna, Inc. as principals, in the amount of $250,504 (which sum represented the estimated cost to complete the public improvements at the time of the default) and appellant, as surety, in the amount of $100,000 (its limit of liability).

Colna had also defaulted on its mortgage and on December 22, 1975 Fidelity Bond and Mortgage Company, the mortgagee, became the owner of the subdivision pursuant to a mortgage foreclosure sale of the real estate involved in the subdivision. Fidelity continued to develop the subdivision, several homes were built in the subdivision, and lots were transferred.

On July 7, 1977, the appellant filed a Petition requesting that the judgment entered against it by appellee be opened or stricken. Appellant also filed an interpleader regarding Fidelity. On October 2, 1978, the court entered an order forever barring Fidelity from asserting any claims against the appellant relative to the bond attached to appellee's complaint. On September 26, 1979 the court below denied appellant's ...


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