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R. KREVOLIN & CO. v. THARP (07/21/55)

July 21, 1955

R. KREVOLIN & CO., INC.
v.
THARP, APPELLANT.



Appeal, No. 52, Oct. T., 1955, from order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1954, No. 4726, in case of R. Krevolin & Co., Inc. v. Hayward Tharp and Theora Tharp. Order affirmed.

COUNSEL

I. Finkelstein, with him Herman Blumenthal, for appellants.

Thomas F. Devine, with him Robert K. Greenfield and Folz, Bard, Kamsler, Goodis & Greenfield, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ervin

[ 178 Pa. Super. Page 237]

OPINION BY ERVIN, J.

This is an appeal from the refusal of the court below to strike off a judgment entered by the prothonotary on an instrument containing a warrant of attorney to confess judgment.

Judgment was entered against defendants in the amount of $4,950.00 on April 8, 1954, pursuant to a warrant of attorney contained in a judgment note. The judgment note contains an unconditional promise to pay to the order of plaintiff the sum of $4,950.00. It authorizes the prothonotary to enter judgment against defendants "for the above sum or at the option of said clerk, prothonotary or attorney for 20 per cent of said sum as liquidated damages...." Appellants contend the prothonotary did not have the power to enter a valid judgment by confession on a warrant of attorney which authorizes the prothonotary arbitrarily at his option, to enter one of two alternative judgments because the prothonotary would be required to go outside

[ 178 Pa. Super. Page 238]

    the record in order to determine the amount which may appear to be due.

The power of the prothonotary to confess judgment is derived from the Act of February 24, 1806, P.L. 334, 4 Sm. L. 270, § 28, 12 PS § 739, which reads as follows: "It shall be the duty of the prothonotary of any court of record, within this commonwealth, on the application of any person, being the original holder (or assignee of such holder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount which from the face of the instrument may appear to be due...."

An authority to confess judgment must be clear and explicit. Solazo v. Boyle, 365 Pa. 586, 76 A.2d 179; Griffin Oil Company v. Toms, 170 Pa. Superior Ct. 203, 85 A.2d 595. Also, the judgment must be entered for a sum, which, from the face of the instrument, appears to be due.*fn1 As stated by Judge HIRT in Better Bilt Door Co. v. Oates, 165 Pa. Superior Ct. 465, 468, 69 A.2d 425: "It is settled law under the 1806 Act that 'if the amount due is not stated in the instrument and cannot be ascertained by calculation from information which it itself furnishes, the prothonotary is not vested by the act with either the duty or the power to enter judgment': Noonan, Inc. v. Hoff, 350 Pa. 295, 38 A.2d 53. Justification for the entry of a judgment by ...


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