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FIRST SENECA BANK v. GREENVILLE DISTRIBUTING COMPANY (11/04/87)

filed: November 4, 1987.

FIRST SENECA BANK, APPELLANT
v.
GREENVILLE DISTRIBUTING COMPANY, ROBERT M. WOODS, PATRICIA M. WOODS, WILLIAM A. BOYCE, AND MARY JANE BOYCE



Appeal from the Judgment entered March 27, 1985, in the Court of Common Pleas, Civil Division, of Mercer County, Nos. 1434 C.D. 1983, 46 E.D. 1984, and 588 D.S.B. 1984. Appeal from the Judgment entered July 1, 1985, in the Court of Common Pleas, Civil Division, of Mercer County, Nos. 1434 C.D. 1983, 46 E.D. 1984, 588 D.S.B. 1984, 407 D.S.B. 1985, 1947 D.S.B. 1977 and 463 D.S.B. 1983.

COUNSEL

Archie O. Wallace, Greenville, for appellant.

William L. Walker, Meadville, for appellees.

Rowley, Del Sole and Cercone, JJ.

Author: Rowley

[ 367 Pa. Super. Page 561]

On September 27, 1977, Greenville Distributing Company (Greenville), the corporate appellee, executed and delivered to First Seneca Bank (Bank), appellant, a mortgage in the amount of $140,000 covering Greenville's warehouse. The mortgage was executed on behalf of Greenville by Robert M. Woods who, at that time, was president of Greenville. On September 30, 1977, Greenville, by Robert Woods its president, as well as Robert and Patricia Woods and William and Mary Jane Boyce, individually, (also appellees herein) executed a corresponding note to the Bank for $140,000. A confession of judgment clause was included in the note. On October 19, 1977, the Bank confessed judgment on the note against the individual appellees only, in the amount of $249,995.28. The judgment against the individual appellees was revived in 1983.

Greenville ceased making payments on the mortgage and note as of April 30, 1983. On December 27, 1983, the Bank filed a two-count complaint. The first count of the complaint was in mortgage foreclosure against Greenville only. The second count of the complaint was in assumpsit against Greenville, Robert and Patricia Woods, and William and Mary Jane Boyce on the note.

By an order filed April 5, 1984, the trial court overruled Greenville's preliminary objection which requested that the second count in assumpsit be stricken or dismissed as improper in a mortgage foreclosure action, but granted what was apparently an oral motion by the Bank for severance

[ 367 Pa. Super. Page 562]

    of the count in mortgage foreclosure from the count in assumpsit. Shortly thereafter, by an order dated April 21, 1984, the trial court, in accordance with a stipulation of the parties, established the following procedure for the resolution of the case:

1) The Defendants or any of them must answer the first count of the Plaintiff's Complaint which is in Mortgage Foreclosure within twenty (20) days of the Court's Opinion filed April 5, 1985 or they shall be in default in the Mortgage Foreclosure action.

2) The time for filing an answer to the Plaintiff's Complaint in Assumpsit will be extended to a date which is twenty (20) days after any Sheriff's sale of the mortgaged property . . . .

On May 17, 1984, because no answer had been filed to the count in mortgage foreclosure, the trial court, finding that the amount of $93,016.42 plus interest was due, entered a default judgment against Greenville in the mortgage foreclosure action. Execution proceedings on the judgment in the mortgage foreclosure action were initiated and on July 2, 1984, the property was sold at sheriff's sale to the Bank for $60,000 following Greenville's unsuccessful bid of $50,000. The deed to the Bank was recorded on July 24, 1984. On the same day, the Bank filed, in the mortgage foreclosure action, a Petition to Fix Deficiency Judgment against Greenville and the individual appellees. On August 10, 1984, Greenville and the Woods filed a response to the Petition to Fix Deficiency Judgment. Meanwhile, on July 26, 1984, pursuant to the Court's order of April 21, 1984 adopting the parties' stipulations, all of the appellees had filed an answer to the Bank's action in assumpsit which had been severed from the action of mortgage foreclosure.

By a petition dated January 30, 1985, Greenville and the Woods sought to dismiss the deficiency judgment proceedings filed in the mortgage foreclosure action as well as to dismiss the assumpsit action because there was no in personam judgment and more than six months had elapsed since the sheriff's sale. By a separate petition also dated

[ 367 Pa. Super. Page 563]

January 30, 1985, appellees sought a release and discharge from the confessed judgment for the same reasons. The trial court signed an order dated February 2, 1985 issuing a Rule to Show Cause based on these two petitions. The Bank filed answers. On February 25, 1985, an evidentiary hearing was held. However, the two petitions of January 30, 1985, the order of February 2, 1985 issuing the rule, and the Bank's answer to the two petitions were not filed until March 15, 1985.

By an order dated March 12, 1985, and filed March 15, 1985, the trial court gave Greenville a credit against the judgment in the mortgage foreclosure action in the amount of $57,542.26 and found the deficiency in the mortgage foreclosure action to be $35,474.16. On March 27, 1985, judgment was entered on this order against not only Greenville but also Robert and Patricia Woods and William and Mary Jane Boyce. Appellant took its first appeal to this Court at No. 408 Pittsburgh, 1985, from this judgment claiming it was entitled to a deficiency judgment in the amount of $70,474.16 which is the difference between the balance due on the mortgage and the amount appellant claims to be the fair market value of the property.

After the appeal was taken at No. 408 Pittsburgh, 1985 by the Bank, the appellees filed a petition to strike off the deficiency judgment entered March 27, 1985. On June 11, 1985, the trial court filed an opinion and order which struck off the deficiency judgment entered against the appellees on March 27, 1985; dismissed the Bank's petition to fix a deficiency judgment; dismissed the count in assumpsit which had been filed by the Bank; and marked the confessed judgments against Robert and Patricia Woods and William and Mary Jane Boyce satisfied, discharged and released.

On July 1, 1985, the Bank entered judgment on the June 11, 1985 order, and filed therefrom its second appeal to this Court at No. 872 Pittsburgh, 1985. Because the appeal at No. 408 Pittsburgh, 1985 and the appeal at No. 872 Pittsburgh, 1985 involve the same parties and the same mortgage

[ 367 Pa. Super. Page 564]

    foreclosure proceedings, they have been ...


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