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PHILADELPHIA GAS HEATING CO. v. SANDERS. (07/17/56)

July 17, 1956

PHILADELPHIA GAS HEATING CO., APPELLANT,
v.
SANDERS.



Appeal, No. 84, Oct. T., 1956, from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1955, No. 526, in case of Philadelphia Gas Heating Co. v. Webster Sanders and Aner Sanders. Order affirmed.

COUNSEL

Daniel Marcu, with him Howard Saul Marcu, for appellant.

Mervin J. Hartman, with him Busser & Bendiner, for appellees.

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

Author: Woodside

[ 181 Pa. Super. Page 511]

OPINION BY WOODSIDE, J.

This is an appeal from an order opening a judgment confessed by the prothonotary on a warrant of attorney contained in a note.

Webster Sanders and Aner Sanders his wife, signed a contract with the Philadelphia Gas Heating Co. for the installation of heating equipment in their home. The contract price was $820.80 of which amount $400 was

[ 181 Pa. Super. Page 512]

    to be paid upon delivery of the equipment and the balance over a period of 36 months. A blank judgment note was signed by the Sanders as security for the performance of the contract by them.

Before the heating company had attempted to install the equipment the Sanders notified it that Mr. Sanders had lost his job and that they desired to cancel the contract. The heating company thereupon had judgment entered by the prothonotary on the note in which it had inserted the contract price of $820.80. It directed the prothonotary to deduct a credit of $426.65 and add, as provided in the note, a 15% attorney's collection fee of $56.71 making a total of $450.86 for which amount the judgment was entered.

The Sanders then petitioned to both open and strike off the judgment. The appellant filed an answer. The lower court opened, but did not strike, the judgment stating as follows:

"The defendants' counsel, at the time of argument of this matter, elected to proceed on petition and answer without taking depositions. We must therefore accept the facts properly set forth in the plaintiff-respondent's answer: Pa. R.C.P. 209; Adelman v. McShain, Inc., 148 Pa. Superior Ct. 138 (1942). Despite the fact that the answer purports to set forth the calculation of damages, we are of the opinion that neither the judgment note itself or the contract between the parties confers upon the plaintiff the power, right or authority to make a unilateral assertion as to the extent of its damages. There is nothing in the contract or the judgment note which supports or authorizes a unilateral ...


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