NO. 369 Pittsburgh, 1982, Appeal from the Order of February 8, 1982, In the Court of Common Pleas of Somerset County, Civil, No. 372 Execution, 1979 & 372 Judgment 1979.
James R. Cooney, Pittsburgh, for appellant.
Thomas E. Reilly, Pittsburgh, for appellee.
Cavanaugh, McEwen and Beck, JJ.
[ 324 Pa. Super. Page 354]
Appellant, Laurel Mountain Development Corporation [hereinafter referred to as Laurel Mountain], seeks review of an order dismissing its petition to open the judgment confessed against it by the Keystone Bank, of which appellee First Seneca Bank & Trust Company [hereinafter referred to as First Seneca] is the successor in interest. The distinguished Judge Norman A. Shaulis dismissed the petition finding that the appellant did not promptly seek the requested relief. We affirm.
It is not necessary or purposeful to recount the detailed history of this appeal since a synopsis will enable a meaningful study. Appellant Laurel Mountain was the owner and developer of a tract of land in Somerset County, Pennsylvania. On August 25, 1975, Laurel Mountain obtained a mortgage loan from the Keystone Bank in the amount of $600,000.00 to be secured by this tract of ground. The agreement provided that $225,000.00 was to be disbursed immediately and the remaining $375,000.00 would be forthcoming after participation by other lenders in the venture was obtained. The parties executed a mortgage note, containing a confession of judgment clause, as evidence of the transaction. Laurel Mountain actually received $244,000.00 of the loan. The appellant fell behind in its payment schedule but the parties were able to resolve this initial default satisfactorily. In March of 1979, however, three and one-half years after the loan agreement, Laurel Mountain was again in default and Keystone proceeded to confess
[ 324 Pa. Super. Page 355]
judgment against it. The docket entries reflect that notice of the entry of this judgment was duly mailed to the appellant and the testimony of the president of Laurel Mountain, given at his deposition, indicates that the notice was received.
Laurel Mountain asserts that it was the failure of Keystone Bank to disburse the balance of the loan monies which was responsible for the financial difficulties which eventually resulted in this default. Representatives of the appellant contend that they contacted Keystone personnel many times after the initial disbursement seeking distribution of the remaining funds and were assured by Keystone that the monies would be forthcoming and, therefore, litigation to compel distribution was unwarranted. The attorney who confessed judgment against Laurel Mountain also represented Alan Patterson, the President and principal shareholder of Laurel Mountain and allegedly advised Patterson not to be concerned about the entry of judgment and that he [the attorney] would continue to protect the interests of Laurel Mountain.
When Keystone subsequently sought to execute upon the real property of appellant in March of 1980, Laurel Mountain, which had by this time secured different counsel, petitioned the Court of Common Pleas for a stay of the execution and received a stay of 120 days. When this stay had expired and the appellant remained in default, Keystone again ordered that execution issue. After Laurel Mountain petitioned for another stay, the court, persuaded by the representation of appellant that it would undertake an aggressive real estate campaign to sell the individual lots and obtain money with which to pay off its creditors, granted, on October 15, 1980, a further stay until March 31, 1981.
Prior to the expiration of this stay, appellant instituted, on February 11, 1981, a separate action in equity against the bank seeking to compel a disbursement of the remaining funds provided for in the agreement and to ...