Appeals, Nos. 419 and 420, Oct. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1956, No. 9429, in case of Edward B. Bergman et al. v. Carmen P. Bonetti et al. Order affirmed.
Mitchell S. Lipschutz, for appellants.
Jerome M. Charen, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
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We are here concerned with appeals from an order of the court of common pleas making absolute a rule to open a judgment entered by confession on a note. This type of proceeding is equitable in nature, and we will reverse the determination of the court below only for clear and manifest abuse of discretion. See Frigidinners v. Branchtown Gun Club, 176 Pa. Superior Ct. 643, 109 A.2d 202; Small v. Small, 185 Pa. Superior Ct. 468, 137 A.2d 870; Budget Charge Accounts v. Mullaney, 187 Pa. Superior Ct. 190, 144 A.2d 438.
Carmen P. Bonetti, Fred Frankel and Alfred A. Bonetti were engaged in the construction business, trading as C. P. Bonetti & Brother. They were represented by Edward B. Bergman, Esquire, who acted as counsel for the individual partners and for the co-partnership, as well as for himself and his brother, David Bergman. On May 16, 1956, the partners executed a note in favor of Edward B. Bergman and David Bergman in the amount of $2,900.00. This note was allegedly given to secure the Bergmans in the event of default by the partnership on two negotiable notes to be guaranteed by Edward B. Bergman and David Bergman, one in the amount of $2,000.00 and the other in the amount of $900.00. The partners executed the two negotiable notes in total amount of $2,900.00, and these notes were in turn guaranteed by the Bergmans
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so as to be more readily acceptable to third parties. On May 22, 1956, judgment was entered on the $2,900.00 note. The partners were unsuccessful in their attempt to raise money on the two guaranteed notes. On June 8, 1956, the Bergmans personally advanced the sum of $2,900.00 to the partnership, and the two guaranteed notes were thereupon surrendered to the Bergmans. On April 17, 1959, Fred Frankel presented a petition for a rule to show cause why the judgment should not be opened, wherein it was averred that judgment was entered for an amount which was not due, and which did not take into account payments made and other credits granted equal to or in excess of the amount of the judgment. Following the filing of a responsive answer, depositions were taken by both petitioner and respondent. On June 30, 1959, the rule was made absolute.
Appellants first contend that a petition to open a judgment must set forth the facts upon which relief is requested, and that matters not pleaded may not be considered. It is appellants' position that the instant petition is based, not on facts, but on conclusions. However, appellants apparently felt that the averments of the petition were sufficiently definite, since they did not file preliminary objections but answered each allegation. We are in accord with the position of the court below that the petition and answer in the case at bar, viewed in the light of the depositions, Lloyd v. Jacoby, 156 Pa. Superior Ct. 105, 39 A.2d 525, delineate the issues with sufficient clarity. Briefly stated, petitioner contends that the loan of $2,900.00 was unconnected with the security judgment and that, under the terms of the written agreement, the judgment should be satisfied of record since the two guaranteed notes were surrendered; further, that payments on account and other credits were not considered. These items include credit for an over-estimation of fees for
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legal services rendered; credit for labor and materials supplied; credit for a cash payment made at the time the loan was granted; and ...