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JAMES GARDNER v. KENNETH CLARK & ANN CLARK (01/03/86)

filed: January 3, 1986.

JAMES GARDNER, APPELLANT,
v.
KENNETH CLARK & ANN CLARK, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 5735 June Term, 1980.

COUNSEL

Jerome M. Feinberg, Philadelphia, for appellant.

Alan M. White, Philadelphia, for appellees.

Wieand, Cercone and Roberts, JJ. Cercone, J., did not participate in the consideration or decision of this appeal.

Author: Wieand

[ 349 Pa. Super. Page 298]

The issue in this appeal is whether a court may award reasonable counsel fees where homeowners, represented by

[ 349 Pa. Super. Page 299]

Community Legal Services, Inc., have prevailed in protracted proceedings to enforce a confessed judgment against their residential real estate. The trial court held that counsel fees were recoverable and made an award of $1,830.00. We affirm.

In June, 1966, Public Acceptance Corporation confessed judgment against Kenneth and Ann Clark for the unpaid balance of an automobile loan. In 1971, the judgment was assigned to Phillip Palmer, a straw party for Dennis Weismer and Stephen Greenstein, trading as Commonwealth Mortgage Company. The judgment was revived in 1971, 1976 and 1979. On December 6, 1979, a writ of execution was issued on the judgment; and on January 7, 1980, the residence of Kenneth and Ann Clark at 2952 Stillman Street, Philadelphia, was sold by the sheriff to James Gardner. He, too, was a straw party for Dennis Weismer and Stephen Greenstein, trading as Commonwealth Mortgage Company.

After the sheriff's sale, the Clarks remained in possession of their home. On July 3, 1980, Gardner commenced an action against the Clarks to quiet title to the Stillman Street property. The Clarks defended the action by using the services of Community Legal Services, Inc. They contended that the execution had been void because it had been based upon a confessed judgment, without an original action as required by Section 407(a) of the Act of January 30, 1974, P.L. 13, No. 6, 41 P.S. ยง 407(a).*fn1 Before the action

[ 349 Pa. Super. Page 300]

    had proceeded to trial, Gardner voluntarily discontinued the action. He contended that the discontinuance had been prompted by a settlement which he was able to effect with his title insurance company. The Clarks argued that the discontinuance had been compelled by the merits of their defense. In any event, it appears that the residential real estate was conveyed to Gardner's title insurance company, which, in turn, returned the title to the Clarks.

The Clarks next filed a petition requesting the court to award counsel fees. They contended that the recovery of reasonable counsel fees had been authorized by Sections 407(b) and 503 of the ...


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