The opinion of the court was delivered by: KATZ
Defendant K. B. Weissman has moved for a new trial and for judgment n.o.v. against plaintiffs Bennett and Linda Levin and third-party defendants Harry Rutenberg and the law firm of Rutenberg, Rutenberg, Rutenberg & Rutenberg. Following a six-day trial, the jury awarded plaintiffs $200,000 on their claim under a Pennsylvania statute originally enacted in 1715 which imposes civil penalties for failure to satisfy mortgages in a timely manner. The jury also found that Harry Rutenberg, Weissman's lawyer at the crucial time, had committed malpractice, but awarded no damages on the malpractice claim. The Court then molded a verdict in favor of plaintiffs for $200,000, in favor of third-party defendants, and against defendant.
A trial judge may grant a new trial where the verdict is against the weight of the evidence, or is excessive, or where errors in rulings or the charge warrant it. A motion for judgment n.o.v. may only be granted if the court finds, as a matter of law, that the record "is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir.1969). The evidence must be viewed in the light most favorable to the prevailing party at trial, and every reasonable and fair inference must be drawn which supports the verdict. Vizzini v. Ford Motor Co., 569 F.2d 754, 757-758 (3d Cir.1977).
Viewed under these standards, the evidence supports the jury's verdict in all respects.
The statute on which plaintiffs base their claim provides that a mortgagor may recover a penalty up to the amount of the mortgage money if the mortgagee fails to mark the mortgages satisfied within forty-five days after:
-- receipt of full satisfaction and payment of all money due (principal and interest);
-- request by the mortgagor to mark the mortgages satisfied; and
-- tender by the mortgagor of the reasonable charges or costs of marking the mortgages satisfied.
Plaintiffs claimed the penalty based on Weissman's failure to mark satisfied two mortgages, one on the Levins' house and one on a business property. The mortgages were each for $200,000, securing a January 21, 1977 $200,000 loan to the Levins. The loan secured by the mortgages was to be repaid in three months, on April 21, 1977. The interest rate was 2% per month with a minimum of $13,000. (N.T. 5-7.)
The $200,000 loan was not repaid on April 21, 1977, and Weissman agreed to an extension for a $2,500 charge. (N.T. 74; 4.96; 4.212.) In 1977, Levin wrote a series of letters to Weissman requesting an accounting. In September, 1977, Levin sued Weissman and several other individuals, alleging fraud, misrepresentation, conversion and breach of fiduciary duties, and seeking an accounting for the proceeds of various transactions to offset Levin's liability to the defendants. The suit arose from a series of real estate ventures in which Levin participated with Howard Garfinkle, a defendant in that suit. Weissman counterclaimed against Levin on the $200,000 loan. Judge Luongo ruled that Levin's outstanding indebtedness to Weissman on the $200,000 loan was $128,000 in principal as of June 11, 1980, with 6% interest to the date of entry of judgment and the 2% per month rate in the note on unpaid balances after the date of judgment. Levin v. Garfinkle, 492 F. Supp. 781, 818 (E.D.Pa.1980). On October 16, 1980, Judge Luongo entered judgment against Levin in favor of Weissman for $162,407.00.
Weissman appealed Judge Luongo's ruling on November 17, 1980. Levin also appealed. The Court of Appeals granted Levin's motion to dismiss Weissman's appeal for failure to file briefs. Order of 9/18/81. Alleged malpractice leading to this dismissal forms the basis for Weissman's third-party claim against Harry Rutenberg and the Rutenberg law firm.
By letter of October 17, 1980 (Ex. P-14), counsel for Levin wrote to Harry Rutenberg, counsel for Weissman, stating:
I have been calling to tender you, on behalf of Bennett Levin, $162,407, in satisfaction of the judgment on your counterclaim entered by Judge Luongo yesterday. I am prepared to pay this amount immediately in return for appropriate satisfaction pieces (for the mortgages from Levin to Weissman).
Because we are prepared to pay this today, we are not prepared to pay any ...