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DONALD L. MEYER v. JOSEPH A. CASTELLUCCI AND LOUISE CASTELLUCCI (08/29/88)

filed: August 29, 1988.

DONALD L. MEYER, APPELLANT,
v.
JOSEPH A. CASTELLUCCI AND LOUISE CASTELLUCCI, APPELLEES



Appeal from the Order dated September 8, 1987 in the Court of Common Pleas of Beaver County, Civil Division, at No. 195 of 1987 DSB

COUNSEL

Craig E. Wymn, Aliquippa, for appellant.

Dennis P. Craig, Pittsburgh, for appellees.

Rowley, Del Sole and Montgomery, JJ.

Author: Montgomery

[ 378 Pa. Super. Page 166]

The instant appeal arises from an Order of the trial court which granted a motion to strike a judgment which had previously been entered against the Defendant-Appellees Joseph A. and Louise Castellucci, at Beaver County Civil Action No. 195 of 1987 DSB. The judgment had been entered in connection with a transaction in which the Appellees had provided a note and bond as collateral security for an obligation of ORCT Corporation (hereinafter "ORCT"), which obligation was secured by a mortgage covering real estate.

The record shows that on November 6, 1978, ORCT executed and delivered a mortgage to the Plaintiff-Appellant, Donald L. Meyer, and others, covering certain property in Beaver County. The mortgage was in the face amount of $315,000.00. Originally, it was secured by a bond in that amount, which was payable in installments. This bond was executed by Appellee Joseph A. Castellucci, and two other individuals. It appears that subsequently, the other individuals

[ 378 Pa. Super. Page 167]

    agreed to sell their interest in ORCT to Mr. Castellucci, if they were released from personal liability on the mortgage and bond. Thereafter, the Appellees executed and delivered their bond in substitution for the personal obligations of the other two individuals selling their interest in the corporation. The Appellees' bond, in the amount of $150,000.00, was provided as a collateral security, covering the obligation of ORCT. This bond was thereafter assigned to the Plaintiff-Appellant.

ORCT defaulted in its payments on the debt, and the Plaintiff and other mortgagees instituted a mortgage foreclosure action against the mortgaged property, at Beaver County Civil Action No. 85 of 1983. Judgment was entered in that foreclosure action, in the amount of $358,818.11. On December 8, 1986, the property was sold to the Appellant at a sheriff's sale, in that civil action, for the amount of $16,272.33, which was apparently the amount of costs in the case. At the time of the sale, the amount due on the debt, considering principal, interest, and costs, was $405,115.01.

On February 27, 1987, in the instant case, which was filed as a separate proceeding, the Plaintiff-Appellant confessed judgment against the Defendant-Appellees, on the bond which they had provided as collateral security for the obligations of ORCT. Approximately two weeks later, in the present case, the Appellant filed a Petition to Set Value as to the property of ORCT which had been sold to him at the sheriff's sale in December, 1986. As noted, the sheriff's sale arose in the prior action. In May, 1987, leave was granted to the Plaintiff to amend the Petition to Set Value to add ORCT as a co-respondent. However, in July, 1987, leave was granted to the Plaintiff to discontinue the proceedings as to ORCT, after ORCT filed Preliminary Objections to the Petition to Set Value.

The Appellant had never sought a deficiency judgment against ORCT in the earlier mortgage foreclosure action. On August 18, 1987, an Order of Court was entered in that case, upon the petition of ORCT, directing that ...


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