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ASSOCIATES DISCOUNT CORP. v. KELLY (07/19/51)

July 19, 1951

ASSOCIATES DISCOUNT CORP.
v.
KELLY



COUNSEL

Myron E. Rowley, Rowley & Smith, Aliquippa, for appellant.

Joseph A. Rieser, Beaver Falls, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Reno

[ 169 Pa. Super. Page 75]

RENO, Judge.

On March 31, 1948, appellant leased a second-hand dump truck from Bauder Motors, and agreed to pay $3,000, of which $1,000 was paid in cash, and the balance

[ 169 Pa. Super. Page 76]

    was to be paid in 24 monthly instalments. In general the terms of the bailment lease followed those considered in Associates Discount Corporation v. Wise, 156 Pa. Super. 659, 41 A.2d 418. The lease was assigned to appellee. By January 25, 1949, appellant had become delinquent in his payments and appellee replevied the truck, filing the required bond and averring that its value was $1,800. Appellant did not file a counter bond; possession was delivered to appellee; and there were no further proceedings in the replevin action. In May 1949 appellee sold the truck for $1,300, and thereafter entered judgment upon the confession contained in the bailment-lease for $442.31.*fn1 Appellant petitioned the court below to open the judgment; depositions were taken; the court, after argument, refused the petition; and this appeal followed. The depositions were not printed; instead counsel have agreed upon the facts pursuant to our Rule No. 41.

Appellant averred these grounds in his petition to open the judgment; (1) That appellee was not entitled to rent after the date of repossession; (2) That the value of the truck was greater than the sum for which it was resold; and (3) That prior to appellee's repossession, appellant proposed payment in full of all

[ 169 Pa. Super. Page 77]

    arrears by producing a prospective purchaser for appellant's rights under the lease, which offer appellee refused. The first ground was not covered by appellant's statement of the questions to be argued under our Rule No. 22, was not briefed or argued here, and is taken to have been abandoned.

I. On appeal from the refusal of a petition to open a judgment appellate review is limited to an examination of the exercise of the court below of the discretion vested in it, and it will be reversed only for an abuse of that discretion. Associates Discount Corporation v. Wise, supra. The review is generally limited to a consideration of the questions raised by the petition and answer. Sprenger for use of Stoecker v. Litten, 142 Pa. Super. 194, 15 A.2d 527. However, where a petition to open is promptly filed after the entry of a confessed judgment the basic legality of the judgment will be examined on appeal even though the question was not presented in the pleadings. Richey v. Gibboney, 154 Pa. Super. 1, 34 A.2d 913.

II. To sustain the second ground appellant points to appellee's affidavit of value in the replevin action and argues that thereby it was estopped from asserting a value less than $1,800 in its further dealings with appellant. The affidavit bound appellee in the replevin action, Gaspero v. Gentile, 160 Pa. Super. 276, 50 A.2d 754, but it did not estop it in subsequent proceedings and other forms of action. The general rule is that averments in pleadings in an undetermined prior case do not operate in a subsequent case as an estoppel by record against the party making them. 31 C.J.S., Estoppel, ยง 7. The averment, however, is admissible in the subsequent proceeding as an admission against the party ...


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