Central Pennsylvania Savings Ass'n v. Carpenters of Pennsylvania, Inc.

463 A.2d 414, 502 Pa. 17, 1983 Pa. LEXIS 644
CourtSupreme Court of Pennsylvania
DecidedJuly 8, 1983
DocketNo. 17 M.D. Appeal Docket 1982
StatusPublished
Cited by5 cases

This text of 463 A.2d 414 (Central Pennsylvania Savings Ass'n v. Carpenters of Pennsylvania, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central Pennsylvania Savings Ass'n v. Carpenters of Pennsylvania, Inc., 463 A.2d 414, 502 Pa. 17, 1983 Pa. LEXIS 644 (Pa. 1983).

Opinion

OPINION

ZAPPALA, Justice.

Appellant, Commonwealth National Bank, (hereafter Bank) and Appellee, Central Pennsylvania Savings Association, (hereafter Savings and Loan) both made loans to Carpenters of Pennsylvania (hereafter Carpenters) for the construction of dwelling units in the Borough of Steelton, Dauphin County. Savings and Loan agreed on November [20]*2030,1973,' to lend $1,289,500 for a fifty unit project. The loan was reduced to $1,221,500 at closing. It was secured by a construction mortgage against the land, which was recorded on December 3, 1973. The Savings and Loan advanced $1,211,103.87 on the mortgage. The Bank’s loan was for the construction of a twenty-eight unit project on an adjacent tract.

Carpenters defaulted on both loans. Both the Bank and the Savings and Loan entered judgments. The Bank entered judgment in the amount of $778,411.13 on November 6, 1974. The Savings and Loan entered judgment in the amount of $817,010.19 on January 6, 1976, approximately 14 months after the entry of the junior lien judgment of the Bank. The Savings and Loan issued a writ of execution directing a sheriff’s sale of the land covered by its mortgage. The Savings and Loan bid $812,000 at the sale. The Bank had previously brought a deficiency judgment proceeding in which the court credited it with $178,656.10. The sheriff’s schedule of distribution indicated that the Savings and Loan would receive all of the proceeds of the sale. The Bank filed exceptions to the schedule of distribution, claiming that its judgment lien took priority over that part of Savings and Loan’s mortgage lien that related to advances made after the November 6, 1974, the date of the entry of the Bank’s judgment. The Bank argued that as of November 6, 1974, Carpenters had been in default on its payments to the Savings and Loan, that as a result of the default, the Savings and Loan’s advances to Carpenters were voluntary, and that therefore, the Bank’s judgment lien took priority over the lien created by the Savings and Loan’s subsequent advances. The Court of Common Pleas of Dauphin County sustained the exceptions and ordered the Savings and Loan to^pay the Bank $149,220.32 with interest from the proceeds of the sheriffs sale.

The Savings and Loan appealed to the Superior Court. The Superior Court reversed the Court of Common Pleas and held that the Savings and Loan was contractually obligated to make the advances in question, that the ad[21]*21vanees related back to the date of the original mortgage, and further that the Savings and Loan’s lien took priority over the Bank’s judgment lien, 298 Pa.Super. 250, 444 A.2d 755 (1982). The court rejected the contention raised by the Bank in a cross-appeal that the Court of Common Pleas improperly reduced its judgment lien by $11,993.01. We granted a Petition for Allowance of Appeal to determine the question of the priority of the liens. The Bank continues to press the issue raised by its cross-appeal in the Superior Court.

The evidence indicates that pursuant to the mortgage contract, the Savings and Loan deposited the entire amount of the loan into an escrow account. Carpenters was required to pay interest on the money as it was advanced. The Savings and Loan was entitled to declare the balance due and payable and proceed to judgment and foreclosure whenever the balance was due and payable. Interest was paid in a timely fashion through April, 1975. No payments were made for May or June. Carpenters was, therefore, in default on July 1. On account of the default and pursuant to the terms of the agreement, the Savings and Loan notified Carpenters of the default on July 2, 1975 and became mortgagee in possession.

Construction was being done by the Draco Construction Company. The Savings and Loan was required to advance funds to Draco for construction as long as all work was satisfactorily completed. The Savings and Loan’s inspection showed that the work was satisfactorily completed and that Draco met all of its obligations.

It further appears that the Bank and the Savings and Loan engaged in a cooperative effort to minimize their losses. The Bank encouraged the Savings and Loan to complete the project and agreed to release the judgment lien against each unit as it was sold. The Savings and Loan/ continued to advance funds to complete and sell the units. The Bank released its liens as the units were sold until December 18, 1975, but would not continue to do so after that date. All of the units had been completed by then. As [22]*22to the ultimate commitment made by the Savings and Loan, all but $3,066.74 had been expended, but this amount was paid three days later for previously incurred expenses. The parties do not agree on how much money the Savings and Loan advanced after the November 6, 1974, attachment of the Bank’s judgment lien. The Court of Common Pleas determined that the amount was $167,213.33.

The Bank claims that its judgment lien takes priority over the lien created by Savings and Loan’s subsequent advances. It relies on a line of cases dating back to Terhoven v. Kerns, 2 Pa. 96 (1845). This Court held in that case that where the holder of a prior encumbrance makes additional advances on the basis of that encumbrance, the additional advances constitute a new debt, which is subordinate to an intervening encumbrance. For similar holdings, see, Bank of Montgomery County’s Appeal, 36 Pa. 170 (1860), Appeal of the Bank of Commerce, 44 Pa. 423 (1863).

In Housing Mortgage Corporation v. Allied Construction, Inc., 374 Pa. 312, 97 A.2d 802 (1953), this Court held that the Terhoven Rule applies when the senior mortgagee makes further advances after notice of the junior lien when not required to do so. However, when the senior mortgagee is required under the loan agreement to make the further advances, such advances relate back to the date of the original mortgage and take priority over the junior lien. The Savings and Loan was not required to make advances to Carpenters, as Carpenters was in default. However, the Savings and Loan was required, as noted supra, to make advances to Draco Construction as Draco was proceeding with construction in the proper manner. Draco had the right to compel payment, being an intended third party beneficiary of the loan agreement, Clardy v. Barco Construction Co., Inc., 205 Pa.Super. 218, 208 A.2d 793 (1965). The Savings and Loan made the advances for the purpose of completing construction. We find that these advances were obligatory in view of Draco’s interest.

[23]*23The Savings and Loan also argues that its advances should take priority because they were made to protect its interest. The advances were made in order to complete construction, as that would allow the housing units to be sold and provide the best chance for the Savings and Loan to recover on its mortgage. A mortgagee in possession of real property is entitled to take all reasonable measures to protect its lien, Most Excellent Assembly of the Artisans Order of Mutual Protection v. Superb Realty Co., 353 Pa. 256, 44 A.2d 584 (1945). A mortgagee in possession might be held liable for failure to maintain the property. See,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Comfed Savings Bank v. Newtown Commons Plaza Assoc.
719 F. Supp. 367 (E.D. Pennsylvania, 1989)
Burns v. City of Philadelphia
504 A.2d 1321 (Supreme Court of Pennsylvania, 1986)
CENT. PA. SAV. ASS'N v. Carpenters of Pa.
463 A.2d 414 (Supreme Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
463 A.2d 414, 502 Pa. 17, 1983 Pa. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-pennsylvania-savings-assn-v-carpenters-of-pennsylvania-inc-pa-1983.