Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No. AD85-00646
Gary M. Davis, Pittsburgh, for appellant.
Charles W. Hergenroeder, III, Pittsburgh, for appellee.
Rowley, McEwen and Tamilia, JJ.
[ 356 Pa. Super. Page 277]
Plaintiff/appellant, Richard Pryor, appeals a summary judgment granted in favor of defendant/appellee, Landmark
[ 356 Pa. Super. Page 278]
Savings Association.*fn1 Appellant brought suit against Landmark seeking to recover money paid to Landmark by Erie Insurance Exchange.
In 1975, Landmark (then Second Federal Savings & Loan Association) obtained a mortgage on appellant's residential property to secure a loan to appellant. On June 2, 1981, Landmark commenced a mortgage foreclosure proceeding against appellant and on July 6, 1981, appellant filed for relief under Chapter 13 of the Bankruptcy Code. On July 7, 1981, a default judgment was entered in the mortgage foreclosure action and on July 13, 1981 Landmark commenced execution proceedings.*fn2
On February 21, 1982, while the execution proceedings were pending, the premises were destroyed by fire. On February 26, 1982, Landmark was granted relief from the stay in the bankruptcy proceedings and on April 5, 1982, Landmark purchased the mortgaged premises at a Sheriff's sale held pursuant to the execution proceedings. Landmark never pursued any claim for a deficiency judgment.
The insurance policy in question was issued to appellant by Erie Insurance Exchange. According to the mortgage agreement between Landmark as mortgagee and appellant as mortgagor, a foreclosure of the mortgage would give Landmark all right, title and interest of appellant in any insurance policy and would also give Landmark full power to settle or compromise all claims under such policies and to demand and receive all monies becoming payable thereunder. Pursuant to the mortgage agreement, Landmark filed
[ 356 Pa. Super. Page 279]
a claim under the insurance policy issued to appellant, and on April 13, 1983, Erie Insurance ...