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BARON v. BERNSTEIN (07/13/54)

July 13, 1954

BARON
v.
BERNSTEIN



COUNSEL

Harold M. Kominars, Maurice Pollon, Philadelphia, for appellant.

Herman Bloom, Philadelphia, for appellee.

Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 175 Pa. Super. Page 609]

ERVIN, Judge.

The question presented by this appeal is whether the court below abused its discretion in refusing to open a judgment.

In November, 1949, Morton Bernstein, appellant, and Martin Baron, appellee, formed a partnership to engage in the business of selling oil and burners, and repairing and servicing oil burners under the firm name 'Baron Co.' On June 11, 1952 judgment was entered against the appellant on behalf of the appellee based on a confession of judgment contained in a promissory note dated May 15, 1950 in the amount of $1, 593.50, payable two years after date. Appellant filed a petition for a rule to open judgment averring

[ 175 Pa. Super. Page 610]

    inter alia: (1) that the note had been given as collateral security in accordance with a prior agreement between the parties to the effect that appellant would not withdraw from or terminate his association with the partnership for the period of at least two years from May 15, 1950; (2) that the appellant had performed his obligation under the agreement; (3) that there has been a complete failure of consideration; (4) that the note on record was materially altered in that certain inkinscribed words on the face of the note at the time it was executed and delivered have been omitted. In the alternative, the appellant further averred in his petition that he did not sign the particular instrument entered of record, and that the signature appearing thereon was a forgery. The appellee denied the material allegations in the petition and in his answer averred (1) that the note was given in return for a loan from appellee to appellant; (2) that there was no material alteration of said note; and (3) that appellant has not performed the obligation of payment of the note. Depositions were taken at which time the appellant sought to amend the petition to show his admission that the signature on the note filed of record was not a forgery. After oral argument the court below dismissed the petition to open the judgment. This appeal followed.

Appellant contends the court below abused its discretion in dismissing the petition because of alternative pleading.

The court below in dismissing the petition stated that 'This petition is defective and confusing. It first admits the making and delivery of the said promissory note but avers there was no consideration therefor because it was only a collateral security. Then in paragraph 10, he avers that, '* * * he did not sign the particular instrument herein entered, and that the signature

[ 175 Pa. Super. Page 611]

    appearing on the said instrument is not his, and if intended to be, is a forgery.' The Court is most emphatic in its condemnation of this untrue and dishonest petition and ordinarily would of its own motion dismiss it.' Though it is apparent the averments in appellant's petition are inconsistent and conflicting there is no basis for holding that the petition is defective. Under Pa.R.C.P. 1020(c), 12 P.S.Appendix, pleading in the alternative is permissible. See Betta v. Smith, 368 Pa. 33, 35, 81 A.2d 538. And in Martin v. Wilson, 371 Pa. 529, 534, 92 A.2d 193, 195, it is stated by Mr. Chief Justice Horace Stern: 'But the objection to such inconsistency in pleading has now been overcome by Pa.R.C.P. 1020(c), which provides that 'Causes of action and defenses may be ...


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