Norman M. Abrams, Jenkintown, for appellants.
James L. Price, Philadelphia, for appellee.
Wickersham, Montemuro and Watkins, JJ.
[ 292 Pa. Super. Page 456]
This case is before the court on appeal from an Order denying appellants' petition to Open Judgment. Appellee,
[ 292 Pa. Super. Page 457]
Anne S. Price, confessed judgment pursuant to a warrant of attorney contained in a bond against appellants, Morris B. Geller and Joel S. Geller.
After the taking of depositions, and after oral argument, the lower court denied the Petition.*fn1 On appeal, appellants contend that sufficient evidence had been produced to raise issues of fact which should have been decided by a jury. We agree and reverse for the following reasons.
The facts of the case are as follows:
In September of 1972, Somerton Manor Apartments was sold by Sorenson Associates, Inc., the principals of which were James L. Price and his wife, Anne S. Price, to Somerton Manor Apartments, Inc., the principals of which were Morris B. Geller, Joel S. Geller, George Green, and a corporation, Rosenthal and Rosenthal, Inc. Before the sale, a first mortgage was held by Fidelity Bond and Mortgage Company. At the time of the sale, a second mortgage was created with Rosenthal and Rosenthal, Inc., as mortgagee, and a third mortgage for $60,000 with Sorenson Associates, Inc., as mortgagee. The Gellers executed a collateral bond for $60,000 to the Prices in connection with the third mortgage. Sometime thereafter, Somerton Manor Apartments, Inc. transferred title to the property to Somerton Manor Apartments, a limited partnership, comprised of the same principals as the corporation. On November 8, 1976, the Gellers transferred their interest in the partnership to Stephen Rosenthal, one of the principals of Rosenthal and Rosenthal. Stephen Rosenthal agreed to indemnify the Gellers against any liability which they might incur on the collateral bond.
In the Spring of 1975, the Prices stopped receiving mortgage payments from Somerton Manor Apartments. At the time of the cessation of payments, the outstanding balance was approximately $31,600.
[ 292 Pa. Super. Page 458]
On March 25, 1975, Rosenthal and Rosenthal instituted mortgage foreclosure proceedings on its second mortgage. When the Prices learned of this they contacted Rosenthal and Rosenthal to work out a settlement on the third mortgage. They were referred to Ed Fitzgerald, the attorney for the partnership. On October 24, 1977, as a result of the negotiations, the Prices sold the third mortgage to Rosenthal and Rosenthal for $15,000 and executed a mortgage ...