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STEWART V. HAGGERTY AND MARTHA HAGGERTY v. PHILIP JAY FETNER (08/10/84)

filed: August 10, 1984.

STEWART V. HAGGERTY AND MARTHA HAGGERTY
v.
PHILIP JAY FETNER, APPELLANT



No. 02584 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 81-010407-06.

COUNSEL

Paul R. Beckert, Jr., Fairless Hills, for appellant.

John T. Dooley, Lansdale, for appellees.

Cavanaugh, Wieand and Cirillo, JJ. Wieand, J., filed concurring statement.

Author: Cavanaugh

[ 332 Pa. Super. Page 337]

In this case, the appellees, Stewart V. Haggerty and his wife Martha Haggerty, sold a farm located in Bucks County, Pennsylvania to the appellant in 1974 for $180,000.00. A first mortgage was granted to the appellant by the Federal Land Bank of Baltimore and the appellees, Dr. and Mrs. Haggerty, took back a second mortgage in the amount of $50,400.00. The appellant executed a note and mortgage in favor of the Haggertys in connection with this financing arrangement. Subsequently, considerable litigation between the parties ensued. The appellant commenced an action against the appellees and others in equity claiming that the appellees, their real estate agents, the title insurance company and the Pennsylvania Department of Revenue had conspired to defraud him by failing to disclose the existence of an encumberance against the property. The appellees in turn commenced an action in mortgage foreclosure against the appellant as he allegedly had not made all of the payments due under the second mortgage. This picture was further complicated as the first mortgagee, Federal Land Bank of Baltimore, commenced mortgage foreclosure proceedings against the appellant on its first mortgage. The appellant defended the Federal Land Bank's legal action on the ground, inter alia, that the bank was guilty of fraud in the inducement in making the contract. The court below entered judgment in favor of Federal Land Bank and we affirmed. See Federal Land Bank v. Fetner, 269 Pa. Super. 455, 410 A.2d 344 (1979). Petition for allowance of appeal was denied by the Pennsylvania Supreme Court on December 10, 1979.

On October 24, 1979, the appellant and appellees entered into a settlement agreement, which was approved by the court below, designed to settle the litigation between the parties. The order provided that the appellees would satisfy the second mortgage upon payment by the appellant of $2,500.00 by January 31, 1980, subject to further extension, and payment by October 24, 1980 of $25,000.00. The agreement further provided that in the event the $25,000.00

[ 332 Pa. Super. Page 338]

    payment was not made when due, the obligation of Dr. and Mrs. Haggerty to satisfy the mortgage:

     shall become null and void and the Haggertys shall have the right to enforce their existing mortgage immediately in its full principal amount together with interest as stipulated in the said mortgage, less only such payments as they theretofore have been made by Fetner, or others on his behalf on account of such mortgage.

Appellant made the $2,500.00 payment when due. On July 11, 1980, the property was sold at sheriff's sale by the first mortgagee. Appellant made no payment toward the $25,000.00 due under the settlement agreement. On February 4, 1981, the appellees confessed judgment against the appellant on the basis of the note executed in connection with the second mortgage. The confessed judgment was in the amount of $77,995.32.*fn1 On that date written notice of the confession of judgment was given by the prothonotary to the appellant by ordinary mail in accordance with the requirements of Pa.R.C.P. 236. On May 15, 1981, the appellant filed his petition to open and/or strike the confessed judgment. Depositions of the parties were taken and on August 5, 1982, the court below through Ludwig, J. entered an order granting the appellant's petition to open "for the sole purpose of determining damages. In all other respects the petition is denied." It is from this order that an appeal has been taken to this court.

Initially, our attention must be directed to the appellees' Motion to Quash the appeal on the basis that the appeal is from an interlocutory order since damages were not finally determined. On February 17, 1983, we denied the Motion to Quash without prejudice to the right of the appellees to present the issue to the panel. It was so presented and we will ...


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