Apex Financial Corp. v. Decker

• Decision Date: 22 November 1976
• Citation: 369 A.2d 483,245 Pa.Super. 439
• Parties: APEX FINANCIAL CORP., a Pennsylvania Corporation, Appellant, v. William J. DECKER et al., Appellees.
• Court: Pennsylvania Superior Court

369 A.2d 483

245 Pa.Super. 439

APEX FINANCIAL CORP., a Pennsylvania Corporation, Appellant, v. William J. DECKER et al., Appellees.

Superior Court of Pennsylvania.

November 22, 1976

Argued June 16, 1975.

Donald L. Toner, Doylestown, for appellant.

Allan B. Goodman, Bethlehem, for appellees.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

WATKINS President Judge.

This case comes to us as a result of an appeal taken by Apex Financial Corporation from an order of the Court of Common Pleas of Northampton County, Civil Division, which refused to change a sheriff's schedule of distribution of the proceeds of a sheriff's sale.

Apex had instituted an action in mortgage foreclosure against William J. Decker and Judith A. Decker, his wife, in August of 1973 had obtained judgment, and then proceeded to execution upon a premises located at 3816 Patterson Drive, Bethlehem Pennsylvania. The sheriff's sale was held on February 21, 1974. At the sale Apex's attorney was the successful bidder purchasing the premises for the sum of $6,678.48. The sheriff's schedule of distribution of the proceeds of sale was as follows:

                1. Sheriff's costs, taxes, etc. $2,257.36
                2. Bethlehem Consumer Discount (BAC)
                 Company, Inc., in satisfaction of its
                 judgment note 3,999.18
                3. Balance of proceeds to Apex 421.94
                 _________
                 Total $6,678.48
                

Apex filed exceptions to the proposed distribution to Bethlehem Consumer Discount Company ('BAC'), contending that its mortgage lien had priority over BAC's judgment lien because the manager of BAC had promised to subordinate BAC's lien to its lien in a letter sent to Apex on September 7, 1972. There is no question about the fact that BAC's lien was prior to the lien of Apex. Therefore the only issue is whether the letter sent to Apex by BAC's manager on September 7, 1972 was sufficient to subordinate BAC's lien to Apex'.

The letter in question was signed by BAC's manager, Robert E. Luhrs, was addressed to Apex, and provided as follows:

'To whom it may concern:

'Please accept this letter as our agreement to subordinate judgment on Mr. William Decker of Bethlehem, Pennsylvania, to your judgment.

'Please have your attornies (sic) draw up the necessary subordination agreement and mail to this office for signature.'

Apex then insured its mortgage with the Chelsea Title and Abstract Company of Pennsylvania, Inc., which removed the BAC judgment as an exception upon presentation to it by Apex of the above letter of September 7, 1972. On September 6, 1973 Chelsea sent BAC a subordination agreement which BAC refused to execute. Apex claims that the BAC lien should have been subordinated to its lien because of the September 7, 1972 letter to Apex. To support its position Apex contends that Luhrs, BAC's manager, was clothed with the authority to make such an agreement, that Apex relied to its detriment on the September 7, 1972 letter from Luhrs to Appex, and that therefore BAC should be bound by Luhrs' agreement to subordinate the BAC line. BAC contends that Luhrs did not have the authority to subordinate BAC's lien. BAC contends that Luhrs did not because it was gratuitous since BAC received nothing in return for a subordination of its lien and that Apex has suffered no detriment as a result of the letter anyhow.

The liability of a principal to third parties for the act of an agent must rest on (1) express authority, or that which is directly granted; (2) implied authority, to do all that is proper, usual and necessary to the exercise of the authority actually granted; (3) apparent authority, as where the principal holds one out as agent by words or conduct, and (4) agency by estoppel. Passarelli v. Shields, 191 Pa.Super. 194, 156 A.2d 343 (1959). The burden of establishing an agency relationship rests with the party asserting it. Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967). The evidence adduced at the hearing below failed to establish any express or implied authority on the part of Luhrs to subordinate BAC's lien. Therefore the sole issue for determination is whether BAC had clothed Luhrs with the apparent authority or authority by estoppel by designating him as 'manager' of one of its offices.

' Apparent authority' is the power to bind a principal which the principal has not actually granted out which he leads persons with whom his agent deals to believe that he has granted to the agent. Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968). The test for such is whether a man of ordinary prudence, diligence and discretion would have a right to believe and would actually believe that the agent possessed the authority he purported to exercise. Murphy v. Beverly Hills Realty Corporation, 98 Pa.Super. 183 (1930). The only evidence tending to indicate the authority of Luhrs was that he was a 'manager'. No testimony was adduced indicating any prior dealings between the parties wherein Luhrs exercised the power to subordinate a lien without consideration or exercised the power to do any other act of a similar nature. In fact Luhrs' authority was limited to the making and collecting of loans. The subordination of a lien is a somewhat extraordinary act and is even more so when it is done without consideration. Therefore Apex should have been placed on notice as to the extent of a 'manager's' authority to perform such an act. It must also be noted that the Luhrs letter of September 7, 1972 was not acted upon by BAC or anyone else until September 6, 1973 when Chelsea sent BAC the subordination agreement to be executed. It would be unreasonable indeed to hold that Luhrs' unauthorized promise to subordinate BAC's lien without consideration should bind BAC for a full year in the absence of any other relevant factors.

The cases cited by Apex wherein courts have found that a manager's actions bound his principal are not controlling in this situation because in each of those cases certain facts were adduced which would provide a person with a reasonable basis for assuming the authority of the manager to do the act. In East Girard Savings and Loan Association v. Houlihan, 373 Pa. 578, 97 A.2d 23 (1953), the manager had agreed to spread additional collateral provided by the defendant to secure his loans over several of his accounts. However, in that case the manager's name had appeared on the lending institution's letterhead and the defendant had received several letters from the lending institution threatening foreclosure, one of which suggested that he call and see the manager personally. The court held that those additional factors clothed the manager with the apparent authority to do what he did. In our case no such additional factors were shown.

Since Luhrs, as manager, was not clothed with the apparent authority to execute a gratuitous subordination of a lien merely by his position, we hold that the court below was correct in its decision refusing to alter the sheriff's schedule of distribution.

Apex' other contention is that the principal of authority by estoppel should be applied to the instant situation....