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DANOVITZ v. PORTNOY (05/23/60)

May 23, 1960

DANOVITZ
v.
PORTNOY, APPELLANT.



Appeal, No. 151, Jan. T., 1960, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1959, No. 1208, inn case of Anna Danovitz v. A. Portnoy. Judgment affirmed.

COUNSEL

Lester H. Novack, with him Everett B. Dennis, and Dennis, Lichtenstein, Cohen & Dennis, for appellant.

John Rogers Carroll, with him McBride, von Moschzisker, Bradley and Carroll, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.

Author: Jones

[ 399 Pa. Page 600]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

On October 13, 1959 Anna Danovitz, through her counsel, petitioned Court of Common Pleas No. 1 of Philadelphia County for leave to enter a judgment in the amount of $10,000, with interest, against A. Portnoy, her brother, upon a judgment note admittedly executed by Portnoy which contained a warrant of attorney authorizing confession of judgment. Although undated, the note was executed in May, 1931, approximately 28 years prior to the presentation of this petition. Attached to the petition,, in addition to the note, was an affidavit by Mrs. Danovitz that Portnoy had executed the note, that, notwithstanding previous demands, no part of the note had been paid, that the note was in default and that the entire balance, with interest, was due.

[ 399 Pa. Page 601]

In accordance with Rule 907 of the Rules of the Court of Common Pleas of Philadelphia County, the court granted a rule upon Portnoy to show cause why judgment should not be entered on the note. Portnoy's answer admitted execution of the note but averred that the note was either, presumptively or actually, paid. After depositions were taken and argument had on the petition, answer and depositions, the court below made the rule absolute and directed the entry of judgment. From the entry of such judgment this appeal was taken.

Portnoy's contentions are three-fold: (1) that Mrs. Danovitz is guilty of laches and her right to enter judgment is barred by her unexplained failure to proceed upon the note during the twenty-eight year period; (2) that Mrs. Danovitz failed to sustain her burden of proof to overcome the presumption that this note containing a warrant of attorney more than twenty years old has been paid; (3) that the court below was unwarranted in finding that the testimony of one party was worthy of belief, despite its contradiction by the testimony of the other party, when such testimony was taken by depositions outside the presence of the hearing judge.

The defense of laches - an affirmative defense - was not raised in the pleadings nor at any time in the court below. Laches, not having been raised in the court below, cannot now be considered by this Court. In Gross v. Belmont Laboratories, Inc., 308 Pa. 358, 162 A. 818, we stated: "if appellant had any confidence in it [that is the contention as to laches], he should have raised it in the court below so that both sides might have presented such evidence as was then available on the subject." See also: Kweller, to use v. Becker, 338 Pa. 169, 172, 12 A.2d 567; Coral Gables v. Jones, 323 Pa. 425, 187 A. 434; Maguire v. Wheeler, 317 Pa. 193, 176 A. 441.

[ 399 Pa. Page 602]

Mrs. Danovitz had the burden of establishing a prima facie case in favor of the note and the warrant therein. Unlike a rule to open judgment, a petition seeking leave to enter judgment upon a note containing a warrant of attorney over twenty years in age requires that the petitioner submit proof sufficient in quantity and quality to overcome the presumption of payment which the lapse of time raises. The Superior Court in Keiber v. Keiber, 90 Pa. Superior Ct. 116, 118, well stated: "The purpose of these rules is not to fix and establish the exact amount due and payable on the instrument at the time it is presented for entry as a judgment note, as by proceedings to open the judgment, but to overcome the apparent laches in entering judgment and satisfy the court that the signature to the note is genuine, that it is a valid and subsisting obligation and that the maker is living; and also in the case of warrants, etc., over twenty years old, to rebut the presumption of payment arising from the lapse of time; as by showing a demand of payment, and acknowledgment of the debt: 1 Troubat & Haly's Paractice (Brightly's Ed.) Sec. 440, 6th Ed. (Bolles & Kirkpatrick) p. 602. The rule issued, as respects warrants over twenty years old, is not to determine the exact amount due on the note but to show ...


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