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T. DALE STEWART AND LETITIA STEWART v. TOMIS DEVELOPMENT COMPANY (06/10/83)

filed: June 10, 1983.

T. DALE STEWART AND LETITIA STEWART, HIS WIFE; JOHN F. KANE, JR., AND M. RUTH KANE, HIS WIFE; HAZEL E. KYLE, A WIDOW; AND CHARLES W. STEWART AND ANNA M. STEWART, HIS WIFE,
v.
TOMIS DEVELOPMENT COMPANY, APPELLANT



COUNSEL

David M. Priselac, Pittsburgh, for appellant.

Dennis N. Persin, Greensburg, for appellees.

Rowley, Montemuro and Van der Voort, JJ. Montemuro, J., concurs in the result.

Author: Van Der Voort

[ 315 Pa. Super. Page 64]

Appellees sold a 187.062 acre tract of undeveloped land in Westmoreland County to appellant for $250,000; $50,000 was paid in cash and the balance of $200,000 by a purchase money mortgage with interest at 6%. The principal of the mortgage was to be paid in fifteen (15) yearly installments of $13,333.33.*fn1

The original agreement of sale dated April 27, 1972, provides that the:

[p]urchase money mortgage will provide for the release of the lien of the mortgage as acreage is sold and proceeds are paid over to Sellers on a pro-rata basis.

The purchase money mortgage and the accompanying bond provide for payment in the following manner.

The sum of $13,333.33 on October 1 of each year, commencing with the year 1973, reduced on a pro rata basis

[ 315 Pa. Super. Page 65]

    by principal payments representing the proceeds from the sale of acreage released from the lien of the within mortgage, together with the amount of accelerated principal payments after January 1, 1973 in such increments as party of the first part [mortgagor-appellant] elects . . . .

At the end of the first year the mortgagors paid to the mortgagees $12,000. There have been no further payments on account of principal or interest. By a "Complaint in Confessions of Judgment", filed August 18, 1977, plaintiff-appellees took judgment on the bond for the principal sum of $200,000, plus interest and attorney's commission in the total sum of $275,838.73, and issued execution against the property. The appellant filed a petition to strike or open the judgment and to stay execution. Paragraph four of such petition reads as follows.

4. The Defendant does not owe the Plaintiffs the amount claimed, if it owes the Plaintiffs anything at all, because the Plaintiffs materially and substantially and practically totally breached their agreement with the Defendant underlying the bond by failing and refusing to act in accordance with said agreement by releasing the subject property from the lien of their mortgage when the Defendant offered accelerated principal payments, thus destroying the Defendant's financing plans and arrangements and making the further ...


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