Appeal from Order of the Court of Common Pleas, Civil Division, of Berks County, No. 267 August 1982.
Gary E. McCafferty, Philadelphia, for appellant.
M. Kevin Coffey, Wellsboro, for appellees.
Rowley, Wieand and Olszewski, JJ.
[ 370 Pa. Super. Page 572]
Shortly before a scheduled sheriff's sale of real estate pursuant to writ of execution issued to enforce a judgment obtained in mortgage foreclosure proceedings, the mortgagors paid the amount of the judgment and costs. The mortgagee thereupon petitioned the court to reassess damages to include taxes and carrying charges for the three year period in which the sale had been stayed by a bankruptcy court. The trial court dismissed the petition, and the mortgagee appealed. We affirm.
On July 26, 1979, Dean Good and Susan Good, husband and wife, executed and delivered a mortgage on their residence to Colonial Mortgage Service Company. The mortgage was subsequently assigned to Chase Home Mortgage Corporation (Chase). On August 18, 1982, Chase commenced an action of mortgage foreclosure against the Goods to recover a mortgage balance of $32,718.44. When the Goods failed to file an answer, a default judgment was entered against them, and damages were assessed at $33,625.17. A writ of execution was thereafter issued, and sale was set for November 5, 1982. On that date, however, the Goods filed a petition under Chapter 13 of the United States Bankruptcy Laws,*fn1 which had the effect of staying the sale.*fn2 Although they were required to make monthly payments and to pay any arrearages pursuant to the plan filed under Chapter 13, the Goods failed to do so. As a consequence, on September 4, 1985, the stay of foreclosure was lifted by the Bankruptcy Court. On June 10, 1986, a second writ of execution was issued; and a sheriff's sale was set for August 8, 1986. On the date of sale, however, the Goods tendered to the sheriff the sum of $34,131.50, which
[ 370 Pa. Super. Page 573]
represented the amount of the judgment and costs. The sheriff thereupon stayed the sale and issued a receipt evidencing payment of the judgment in full.
On August 21, 1986, Chase filed a petition in the Court of Common Pleas of Berks County to reassess its damages. It alleged that the amount paid by the Goods had not included interest*fn3 or the cost of taxes and insurance premiums which it had paid for almost three years while the sale was stayed. When these items were included, Chase alleged, the correct amount due was $51,033.42. Following an evidentiary hearing, the trial court dismissed the petition.
"Judgment in a mortgage foreclosure action must be entered for a sum certain or no execution could ever issue on it." Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 226, 282 A.2d 335, 340 (1971). In the instant case, a default judgment had been properly entered following the Goods' failure to file an answer to Chase's complaint, and damages were assessed on the basis of the following figures submitted by Chase:
Balance of Principal Due ...