NO. 378 Pittsburgh, 1982, Appeal from the Order of March 9, 1982 in the Court of Common Pleas of Beaver County, Civil Division, No. 432 of 1981
H. Klein, Aliquippa, for appellants.
George A. Verlihay, Beaver Falls, for appellees.
Wieand, Tamilia and Popovich, JJ.
[ 329 Pa. Super. Page 261]
This appeal arises from an Order of the Court of Common Pleas of Beaver County, dated March 9, 1982, that sustained appellee's preliminary objections and dismissed appellant's complaint in assumpsit and trespass. The issues presented on appeal primarily concern the res judicata effect of a judgment suffered by appellants, Anthony and Rita Del Turco, in a mortgage foreclosure action brought by appellee, Peoples Home Savings and Loan Association, upon a subsequent suit brought by appellants against appellee. After thoroughly examining appellants' arguments, we affirm.
On February 28, 1974, appellants obtained a loan of $475,000 from Peoples Home Savings and Loan Association*fn1 [hereinafter Peoples Home] to finance the construction of an office building. Pursuant therewith, appellants executed a mortgage covering two parcels of land situated in Beaver County, Pennsylvania and a mortgage note in the
[ 329 Pa. Super. Page 262]
amount of the loan. In May 1975, Peoples Home initiated a mortgage foreclosure action against appellants (No. 883 of 1975, Beaver County) since appellants had failed to make the monthly payments required by the terms of the mortgage and mortgage note. Appellants failed to respond to the complaint filed by Peoples Home. See Pa.R.C.P. 1141, 1148. On June 26, 1975, Peoples Home took a judgment against appellants in the amount of $537,784 and caused a writ of execution to be issued upon the subject realty. On August 15, 1975, the two parcels of land securing the loan obligation were sold at sheriff's sale and a schedule of distribution was made. Appellants neither took exception to the issuance of the writ of execution nor petitioned to set aside the sheriff's sale. See Pa.R.C.P. 3181, 3183(e), and 3132. On June 5, 1981, appellants caused to be filed a complaint in trespass and assumpsit against Peoples Home.*fn2 Counts I-IV of the complaint set forth the following averments:
"11. In December, 1974, there remained a $6,987.15 balance available from the proceeds of said $475,000 loan for purposes of paying obligations incurred by plaintiffs in connection with the construction of the office building mentioned above.
"12. At that time, plaintiffs requested defendant Home Pro to use said sum of $6,987.15 to pay Rawding Electric for certain necessary electrical work, and Home Pro, through its President, Earl F. Klear, promised to do so but
[ 329 Pa. Super. Page 263]
subsequently failed and refused to do so despite repeated requests.
"13. Nor did defendant Home Pro ever credit plaintiffs' mortgage loan account in said amount of $6,987.15 up to and including August 15, 1975, the date on which mortgage foreclosure proceedings on said $475,000 mortgage was completed.
"WHEREFORE, plaintiffs request that a judgment be entered in their favor and against defendant, Peoples Home Savings Association, in the amount of $6,987.15, together with interest from August 15, 1975.
"15. For the period March 1, 1975 through August 15, 1975, defendant Home Pro, as mortgagee in possession, received rentals from tenants in plaintiffs' premise totaling $21,938.93 but Home Pro credited only $11,733 to plaintiffs' loan account.
"16. On or about May 27, 1975, defendant Home Pro received $5,000 from the other defendant herein, Intermediate Unit, for "excess electricity used", under terms of the Lease between plaintiffs, as Lessor, and the Intermediate Unit as Tenant. A copy of said Lease is attached hereto, marked Exhibit "B" and made part hereof.
"17. Said Lease provides, in pertinent part, as follows:
"'. . . It is understood and agreed that should the total cost for electrical power furnished to the premises exceed Three Thousand ($3,000.00) Dollars for the twelve (12) month period beginning with the anniversary date of Lessee's taking possession, then Lessee shall reimburse Lessor in full for that amount by which the cost for electrical power exceeds Three Thousand ($3,000.00) Dollars for such twelve (12) month period . . . .'
"18. Defendant Intermediate Unit took possession of the premises on March 1, 1974.
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"19. Billing for electrical power used on said premises leased by the Intermediate Unit reached $3,000 on or about August 1, 1974 and reached $8,000 on or about November 15, 1975, all of which billings were paid to Duquesne Light Company by the plaintiffs.
"20. On or about May 3, 1975, defendant Home Pro charged plaintiffs' loan account with $4,500 for electricity billed by Duquesne Light but said defendant paid only $3,500 to Duquesne Light for the credit of plaintiffs' account.
"WHEREFORE, plaintiffs request that a judgment be entered in their favor and against defendant, Peoples Home Savings Association, in the amount of $16,205.53, ...