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FOGEL REFRIGERATOR COMPANY v. OTERI. (12/31/59)

December 31, 1959

FOGEL REFRIGERATOR COMPANY, APPELLANT,
v.
OTERI.



Appeal, No. 343, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1955, No. 3232, in case of Fogel Refrigerator Company v. Nuncie Oteri et al. Order affirmed. Proceedings on petition to open judgment. Adjudication filed allowing judgment to be opened, and order entered, opinion by REIMEL, J. Plaintiff appealed.

COUNSEL

Max A. Daroff, for appellant.

Philip P. Kaloder, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 398 Pa. Page 83]

OPINION BY MR. JUSTICE BOK

The question is whether a second petition to open a judgment entered by confession can be considered after a first has been denied and the denial affirmed on appeal.

The dispute arises from an agreement to install refrigerating equipment, with a judgment note given as collateral for the sale of the material by bailment lease. The lease, providing for first payment on November 30, 1955, was dated June 29, 1955, and judgment was taken on July 1, 1955, pursuant to authority in the lease that this might be done before delivery or default. The equipment was not completely delivered until months later, probably in late September, 1956.

Defendants filed their first petition to open the judgment on January 28, 1957, alleging forgery and unfitness of the apparatus. While depositions were being taken on both points, the parties appeared in court and entered into a stipulation with the apparent purpose of limiting and directing the depositions. Defendants' counsel thus stated the subject of stipulation: "The defendants agree that the Petition to open up Judgment shall turn only on the issue of whether or not forgery has been committed by the plaintiff. If it is resolved in favor of the defendants, then the other issues of failure of consideration should be allowed to go to the Jury."

Opposing counsel did not understand, and said so, and defendants' counsel rested on forgery, saying: "I

[ 398 Pa. Page 84]

    am relying now on forgery." This appears, under the particular facts, to have been a question of law.

The court below filed its opinion, saying, among else: "Defendants alleged forgery and failure of consideration as the defenses to be offered ... the parties stipulated and agreed that the court's consideration of the controversy be limited to defendants' allegation of forgery." It refused to open the judgment, and we affirmed, eo sub nomine, at 391 Pa. 188 (1958), ...


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