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FIRST NATIONAL CONSUMER DISCOUNT COMPANY v. CLYDE F. FETHERMAN A/K/A CLYDE FETHERMAN AND VERONICA L. FETHERMAN (01/25/85)

filed: January 25, 1985.

FIRST NATIONAL CONSUMER DISCOUNT COMPANY, APPELLANT,
v.
CLYDE F. FETHERMAN A/K/A CLYDE FETHERMAN AND VERONICA L. FETHERMAN, APPELLEES



NO. 01376 Philadelphia, 1983, Appeal from the Order entered April 21, 1983, in the Court of Common Pleas of Bucks County, Civil, No. 75-9796-08-6.

COUNSEL

Howard M. Holmes, Philadelphia, for appellant.

George M. Painter, III, King of Prussia, for appellees.

McEwen, Del Sole and Popovich, JJ.

Author: Mcewen

[ 338 Pa. Super. Page 324]

This is an appeal from a judgment in the sum of $13,800 in favor of appellees and against appellant, which represented liquidated damages awarded pursuant to 42 Pa.C.S. § 8104 and from an order directing that a 1976 judgment against appellees be marked satisfied. Appellant raises three issues for our review:

Whether appellees failed to tender the requisite filing fee under 42 Pa.C.S. § 8104(a)?

Whether appellees failed to request from appellant satisfaction of judgment?

[ 338 Pa. Super. Page 325]

Whether the judgment in question was satisfied by being paid in full, as required by 42 Pa.C.S. § 8104(a)?

We affirm the order directing that the judgment against appellees be marked satisfied but conclude that we must reverse the award of liquidated damages.

In December, 1976, judgment in foreclosure was entered against appellees in the sum of $27,600 plus costs. One of two mortgaged parcels of land was sold at sheriff's sale for $28,500 in January of 1977. Exceptions to the sheriff's distribution were filed by two creditors but were subsequently denied. After costs and taxes, the net proceeds from the sale were $26,912.24. No deficiency judgment was sought and appellant did not undertake execution proceedings against the second mortgaged premises.

Appellees sent appellant's counsel of record a demand for satisfaction of the judgment by letter dated September 19, 1978. Counsel for appellant responded by letter dated September 25, 1978, indicating that an order to mark the judgment satisfied was being filed with the court and also provided appellees with a copy of the order. Judgment was not, however, marked satisfied and after several further demands were made, appellees petitioned the Court of Common Pleas to have the judgment marked satisfied and to be awarded liquidated damages. The parties presented, at a hearing on the petition, evidence in the form of ...


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