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WEINBERG v. MORGAN. (06/11/58)

June 11, 1958

WEINBERG, APPELLANT,
v.
MORGAN.



Appeal, No. 14, Feb. T., 1958, from order of Court of Common Pleas of Luzerne County, July T., 1956, No. 312, in case of Bertie J. Weinberg, trading as The Enterprise Company, v. Sheldon Morgan et ux. Order affirmed.

COUNSEL

Arthur Silverblatt, with him James, McLean, Silverblatt, & Miner, for appellant.

John J. McDonald, for appellees.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Rhodes

[ 186 Pa. Super. Page 323]

OPINION BY RHODES, P.J.

This is an appeal from an order of the Court of Common Pleas of Luzerne County making absolute a rule to open a judgment entered by confession upon a warrant of attorney.

On June 18, 1955, defendants entered into a written contract with plaintiff covering the installation of a heating plant in defendants' residence. The contract provided for installation of a Weil McLean used boiler together with five steam radiators at a total price of $623.17; it also contained a clause confessing judgment in favor of plaintiff.

Plaintiff entered judgment which was confessed in the contract in favor of plaintiff and against defendants and issued execution thereon. Defendants filed a petition to open the judgment alleging that the heating plant as installed was defective and inadequate, and that it failed to provide proper heat. Plaintiff filed an answer and depositions were taken. Following

[ 186 Pa. Super. Page 324]

    argument the court made the rule absolute and opened the judgment.

"A petition to open a judgment is equitable in nature and is addressed to the judicial discretion of the trial court, and its action will not be reversed in the absence of an abuse of discretion. Gettier v. Friday, 375 Pa. 206, 208, 99 A.2d 899; Brown & Bigelow, Inc. v. Borish, 165 Pa. Superior Ct. 308, 310, 67 A.2d 823." Stein v. Greene, 178 Pa. Superior Ct. 464, 467, 116 A.2d 308, 310. This rule of appellate review has often been reiterated. Brown v. McClure Newspaper Syndicate, 183 Pa. Superior Ct. 316, 130 A.2d 721; Berger v. Pittsburgh Auto Equipment Company, 387 Pa. 61, 62, 127 A.2d 334; Fogel Refrigerator Company v. Oteri, 391 Pa. 188, 137 A.2d 225.

In the depositions defendants testified that the boiler as finally installed had been used and was over twelve years od, and that it did not work satisfactorily. It appears that the parties had considerable discussion concerning the type and performance of the installation; and that defendants insisted it was defective and should be removed. The carbon copy of the contract, the blanks having been filled in by plaintiff in his own handwriting, apparently called for a Weil McLean "used" boiler. ...


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