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BROWN v. MCCLURE NEWSPAPER SYNDICATE (04/09/57)

April 9, 1957

BROWN
v.
MCCLURE NEWSPAPER SYNDICATE, APPELLANT.



Appeal, No. 14, Feb. T., 1957, from order of Court of Common Pleas of Luzerne County, Oct. T., 1952, No. 1904, in case of James L. Brown v. McClure Newspaper Syndicate. Order affirmed.

COUNSEL

Martin D. Cohn, with him Theodore R. Laputka, and Laputka, Bayless, Ecker & Cohn, for appellant.

Daniel J. Flood and Frank McGuigan, with them James Lenahan Brown and Flood & Brown, for appellee.

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

[ 183 Pa. Super. Page 317]

OPINION PER CURIAM

This is an appeal by defendant, McClure Newspaper Syndicate, from the refusal of the Court of Common Pleas of Luzerne County to open a judgment confessed on a sealed promissory note. A petition to open a judgment, being equitable in nature, is addressed to the sound discretion of the court of common pleas, and the disposition by that court will not be disturbed unless a clear abuse of discretion is shown. Stein v. Greene, 178 Pa. Superior Ct. 464, 467, 116 A.2d 308; Gregory v. Fassett, 178 Pa. Superior Ct. 599, 606,

[ 183 Pa. Super. Page 318116]

A.2d 304. The opinion of Judge FLANNERY for the court in banc thoroughly disposes of the contentions of defendant, and our review of the record indicates that there has not been any abuse of discretion in refusing to open the judgment. The order is affirmed, at appellant's costs, on the following excerpts from the opinion of Judge FLANNERY:

"The note was issued in connection with a contemporaneous tripartite agreement made on September 1, 1949, by the plaintiff, the defendant corporation, and one James L. Lenahan. The agreement, inter alia, provided that the plaintiff was to receive a note of the corporation for ten thousand ($10,000.00) dollars in satisfaction of any claim the plaintiff had against Lenahan for money advanced to buy into the corporation or for any interest in the common stock of the corporation arising out of that purchase. By the agreement Lenahan was to release the corporation from monies it then owed him. The judgment note was to be paid in fifty (50) monthly payments to be made thereafter by the corporation. The plaintiff was also given an option, exercisable on default, allowing him to retake his interest in the corporation and to retain any payments already made as liquidated damages. ...

"We come now to what appears to be the defendant's principal contention, i.e., that the note was unenforceable since the plaintiff, a director and officer of the corporation, accepted the corporate note in payment of a personal obligation owed him by James L. Lenahan, its president. Even conceding that the defendant has established these facts, it is our opinion that the note was nevertheless enforceable. We so conclude on the basis that James L. Lenahan was a 'one man corporation.' In that connection we find:

"1. That in July, 1946, Lenahan purchased all the stock of the defendant corporation from Adelaide

[ 183 Pa. Super. Page 319]

Waldo; however, this stock was retained by the seller as security for the payment of ...


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