Harry R. Kozart, Philadelphia, Arthur E. Ricchiuti, Pottsville, for appellant.
David Berger, Philadelphia, Isadore Krasno, Pottsville, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 645]
On May 31, 1951, judgment was entered against the Branchtown Gun Club, appellee, on behalf of Frigidinners, Inc., appellant, based on a warrant of attorney contained in a judgment note dated July 7, 1950 in the amount of $730.
The note had been executed by the appellee as collateral security for the payment of the purchase price of a Carrier Freezer purchased by appellee under a conditional sales contract dated July 7, 1950. On June 12, 1951 appellee filed a petition for a rule to open judgment. Subsequently, depositions were taken and James T. Harvey, the president of the Club, testified on behalf of appellee. No testimony was offered on behalf of appellant. After argument the court below issued an order on May 17, 1954 opening the judgment. This appeal followed.
In the petition to open judgment the appellee averred inter alia: (1) that the parties had agreed that Frigidinners were to be placed upon the premises of appellee for thirty days but if not satisfactory they were to be removed and all the papers executed, including the conditional sales contract and the judgment note, were to be null and void; (2) that the Frigidinners had not performed properly and were not satisfactory; (3) that the food served with the Frigidinners was not merchantable. The appellant denied the allegations in the petition and in its answer averred, inter alia, that the conditional sales agreement executed July 7, 1950 constituted the entire contract
[ 176 Pa. Super. Page 646]
between the parties, and that the contract in no was provided for food to be served with the Frigidinner appliance.
It was established by depositions that the conditional sales agreement and the Judgment note were signed by James T. Harvey, the president of the Club. Mr. Harvey also testified that as an inducement to enter into the contract $25 worth of food was placed in the freezer, for which there was to be no charge if the Club did not keep the freezer. It was further testified that no payments were made on the note, that the food platters furnished by appellant, used in connection with the freezer, were unsatisfactory and not salable, and that notice was given to the appellant that the Club did not want the freezer.
The question presented by this appeal is whether the court below abused its discretion in opening the judgment.
It is well established that an application to open a confessed judgment is addressed to the sound discretion of the court which, in the exercise thereof, is governed by equitable principles; and on appeal the court's dispositive order will not be reversed except for a clear abuse of discretion. Baron v. Bernstein, 175 Pa. Super. 608, 106 A.2d 668. In passing upon a rule to open a judgment both the pleadings and the testimony may be taken into consideration in determining whether or not a meritorious ...