Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BUSY BEAVER BUILDING CENTERS v. HARRY J. TUECHE AND CARMEN TUECHE (12/04/81)

filed: December 4, 1981.

BUSY BEAVER BUILDING CENTERS, INC.
v.
HARRY J. TUECHE AND CARMEN TUECHE, HIS WIFE, APPELLANTS



No. 858 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Westmoreland County, at No. 2578 of 1975, Civil Action--Law. Sur. No. 535 July 1970.

COUNSEL

Bernard S. Shire, Monessen, for appellants.

Stephen J. Laidhold, Pittsburgh, for appellee.

Price, Brosky and Montemuro, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Brosky

[ 295 Pa. Super. Page 505]

This appeal concerns an action brought under 42 Pa.C.S. ยง 8104*fn1 by appellant-debtors to have a judgment record marked satisfied and to recover liquidated damages from appellee-creditor for its failure to satisfy same. The lower court entered an order based upon the entire record, consisting of the pleadings and deposition of Harry Tueche. There was no testimony taken. It found that "[t]he mortgage was intended to take the place of the judgment note and secure

[ 295 Pa. Super. Page 506]

    the obligation," and ordered satisfaction of the Westmoreland County judgment because it believed "that the receipt of a mortgage by the [appellee] in place of the judgment note which it satisfied in Washington County nullifies that judgment and as well . . . the [judgment] in Westmoreland County."

However, the court held that appellants were not entitled to liquidated damages under the statute on the ground that the prerequisite for entitlement to liquidated damages is that the creditor must have received satisfaction of the judgment; and that mere satisfaction of the docket (in Washington County) did not satisfy the underlying debt obligation. The court found that "there remains unpaid on [appellants'] indebtedness to Busy Beaver one thousand, eight hundred nine dollars and eighty-seven cents." Thus, it denied appellants request for liquidated damages. It is from this portion of the order that appellants have taken this appeal.

We affirm the order of the lower court.

The central issue for our determination is whether appellants are entitled to recover liquidated damages under the statute. Appellants contend that the court below erred in denying their claim for liquidated damages, arguing that once the court entered an order directing that the Westmoreland County judgment be satisfied, that it was bound by the statute to award appellants liquidated damages.

The facts are as follows. Appellee sold materials on credit to appellant, a home builder. In connection therewith, as a security measure, appellee required appellant to execute a judgment note in its favor, which appellant executed March 10, 1970, in the amount of $6,660. Appellants did not comply with the payment schedule set out in the note. On August 5, 1970, appellee recorded the note in the Court of Common Pleas of Washington County, Pennsylvania, in the amount of $6,930, representing the face amount of the note plus attorney fees. On August 10, 1970, appellee filed a Certification of Docket Entries and Judgment, executed by the Prothonotary of Washington County, with the Prothonotary of Westmoreland

[ 295 Pa. Super. Page 507]

County, thereby effecting a transfer of the Washington County judgment under Pa.R.C.P. 3002.*fn2

On October 29, 1970, appellants executed a mortgage in favor of appellee in the amount of $5,200, secured by three lots. The mortgage provided in part:

BUSY BEAVER BUILDING CENTERS, INC. agrees to release any of the lots secured in this mortgage upon receipt of the sum of $1,700.00, plus all interest to date.

The record shows that two of the lots were released.*fn3 One was released November 4, 1970; the other was not released until April 21, 1978. The third lot was sold at sheriff's sale. Neither the date of the sale nor the sale price is disclosed by the record.

On November 24, 1970, the judgment entered in Washington County on August 5, 1970 was marked "satisfied ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.