No. 80-3-727, Appeal from the Order dated July 3, 1980 of the Superior Court (October Term, 1978, No. 2227) and the Order dated July 11, 1978 of the Court of Common Pleas Civil Action, Law of Montgomery County, No. 76-1041.
David J. Ackerman, Philadelphia, for appellants.
Jess Leventhal, Philadelphia, Roger B. Reynolds, Jr., Norristown, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This is an appeal from an Order of the Superior Court affirming the Order of the Court of Common Pleas of Montgomery County, refusing to release collateral posted for a bond. We reverse.
In 1975 appellee, Alexander & Alexander, sued appellant Berg and eleven other defendants. The gist of the complaint is that the defendants "jointly and severally" requested the appellee to issue certain bonds, policies of insurance and endorsements, and that these instruments were issued pursuant to the requests of the defendants, but the premiums were not paid. Alexander sued for payment and won a default judgment in Philadelphia County in the amount of $18,254.19. The judgment was transferred to Montgomery County and Alexander obtained a writ of execution. Thereafter, Berg, the appellant herein, petitioned for and was granted a stay of execution pursuant to Pa.R.C.P. 3121, which provides that execution shall be stayed upon entry of bond, with security approved by the Prothonotary. Berg submitted a stock certificate with a value of $37,500.00 as security on the bond. Following unsuccessful appeals to the Superior Court and this Court challenging the default judgment, Berg petitioned for and was granted a modification of the judgment against him personally, fixing his liability at $502.00 plus interest. Berg paid this sum to Alexander, who
then petitioned the court to vacate the stay of execution. The court vacated the stay and pursuant to the terms of his bond Berg petitioned for return of his $37,500.00 stock certificate. Berg's petition was denied and this appeal followed.
Alexander argues that Berg is liable on the bond for the entire amount of the judgment which is unpaid. Berg argues that the bond, by its terms, released him from liability when the court vacated the stay of execution. The bond provides:
KNOW ALL MEN BY THESE PRESENTS, that I, John G. Berg, Esquire, hereinafter called "Obligor," am held and firmly bound unto the Commonwealth of Pennsylvania and/or Alexander & Alexander, Inc. in the just and full sum of Twelve Thousand Dollars ($12,000), lawful money of the United States to be paid to the said Obligee; to which payment, will and truly to be made and done, I hereby bind myself, my heirs and personal representatives, and every one of them, jointly and severally, firmly by these presents. Sealed with my seal this 19th day of March 1976.
The condition of this obligation is such, that, whereas, in and by a certain writ of execution issued in the above-captioned action, the sheriff of Montgomery County did levy upon and attach certain property located in Suite 100, Plymouth Plaza, Plymouth Meeting, Pennsylvania, for the satisfaction of a judgment in ...