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FIRST NATIONAL CONSUMER DISCOUNT COMPANY v. CLYDE F. FETHERMAN (05/22/87)

decided: May 22, 1987.

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



Appeal from the Order of the Superior Court, No. 01376 Philadelphia 1983 Entered January 25, 1985 Affirming in part and reversing in part the Order of the Court of Common Pleas of Bucks County, Civil Action No. 75-9796-08-6. 338 Pa. Super 323, Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Flaherty, J., did not participate in the consideration or decision of this case.

Author: Larsen

[ 515 Pa. Page 88]

OPINION OF THE COURT

Appellants, Clyde F. Fetherman and Veronica L. Fetherman (Fethermans) appeal from an order of a Superior Court panel (McEwen, Del Sole and Popovich, JJ.) reversing an

[ 515 Pa. Page 89]

    award of liquidated damages in the amount of $13,800.00 made by the Court of Common Pleas of Bucks County pursuant to the provisions of the Deficiency Judgment Act, 42 Pa.C.S. § 8104. In this appeal, the appellants raise two issues for our review:

FIRST. Where a judgment creditor (here a mortgagee who foreclosed the mortgage) purchases the debtor's real estate at a sheriff's sale and then fails to proceed within six months of the sale to petition the court to fix the fair market value of the real estate pursuant to 42 Pa.C.S. § 8103, in such a case, is the judgment against the debtor deemed to be fully satisfied as a matter of law, thus entitling the debtor to have the judgment marked satisfied of record?

SECOND. In a case where the judgment creditor is deemed, as a matter of law, to have received satisfaction and that judgment creditor fails, refuses or neglects to mark the judgment satisfied for more than thirty days after receiving written notice from the judgment debtor to do so, is the debtor entitled to liquidated damages pursuant to the provisions of 42 Pa.C.S. § 8104?

In considering the above questions, the Fethermans are debtors and the appellee, First National Consumer Discount Company is a mortgagee-judgment creditor.

Factual Background

On July 22, 1974, the Fethermans executed a mortgage and note for $31,416.00 as security for a loan. The mortgage created a lien against two separate parcels of real estate owned by the Fethermans. Subsequently, the Fethermans defaulted in payment of the note. Because of the default, appellee, First National Consumer Discount Company, on October 20, 1975, filed a complaint in mortgage foreclosure against Clyde and Veronica Fetherman. On December 3, 1976, a judgment in the sum of $27,600.00 was entered in the foreclosure action in favor of the appellee and against the Fethermans. On the same day a praecipe for a writ of execution as to one of the Fethermans' parcels was filed by the appellee.

[ 515 Pa. Page 90]

The property executed upon by the appellee came up for sale by the sheriff of Bucks County on January 14, 1977. The appellee was the successful bidder for the Fethermans' parcel, purchasing the property for the bid price of $28,500.00.

Following the sale, the sheriff prepared a proposed schedule of distribution of the proceeds. When the schedule was made known, two junior judgment creditors filed exceptions to the proposed distribution. By Order of Court dated August 4, 1978, the exceptions were dismissed and the sheriff was directed to proceed with distribution as proposed. The proceeds of the sale were distributed as follows: $91.52 to Warminister Municipal Authority to pay a water and sewage obligation; $640.24 for costs; $428.00 for state realty transfer taxes; $428.00 for local realty transfer taxes; and the balance of $26,912.24 to the appellee.

On or about September 19, 1978, approximately twenty-one months after the sheriff's sale, the Fethermans, through their counsel, made a written request of the appellee to satisfy the foreclosure judgment on the record. The appellee's attorney responded to this request by a letter dated September 25, 1978. In that letter, appellee's counsel informed the Fethermans' counsel that he had prepared an order to mark the judgment satisfied and was about to file it with the court. A copy of the order ready to be filed was enclosed with the letter. Several months later it came to the attention of the Fethermans that the appellee had taken no action with regard to the judgment in question. The judgment had not been marked satisfied as appellee's counsel represented it would be. The Fethermans made at least two additional written demands on the appellee that the judgment be marked satisfied, each to no avail. The appellee's continued failure to have the judgment marked satisfied moved ...


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