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PROVIDENT TRADESMENS BANK AND TRUST COMPANY v. PEMBERTON. (09/12/61)

THE SUPERIOR COURT OF PENNSYLVANIA


September 12, 1961

PROVIDENT TRADESMENS BANK AND TRUST COMPANY, APPELLANT,
v.
PEMBERTON.

Appeal, No. 143, Oct. T., 1961, from order of Municipal Court of Philadelphia County, Dec. T., 1959, No. 3398-C, in case of Provident Tradesmens Bank and Trust Company v. Mary L. Pemberton et al. Order affirmed.

COUNSEL

George F. Baer Appel, with him James J. Prendergast, Francis J. Carey, Jr., and Townsend, Elliott & Munson, for appellant.

Howard Saul Marcu, with him Daniel Marcu, and Marcu, Marcu & Marcu, for Prusky, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

[ 196 Pa. Super. Page 182]

OPINION PER CURIAM

The order is affirmed upon the opinion of Judge BURCH of the County Court of Philadelphia.

ING OPINION BY FLOOD, J.:

In the note signed by the defendant Prusky he waived "all notices to which [he] might be entitled". This clearly includes notices to which he might be entitled by custom of the trade as well as those to which he might have been entitled under the terms of the note or the security agreement signed by him. This waiver is reinforced by his waiver in the security agreement "of all notices whatsoever in respect of this agreement".

I see no justification for not giving to this explicit language its literal meaning in the case of this defendant who was an agent experienced in automobile sales transactions. Despite the contrary opinion of the majority of my colleagues and of the able and experienced trial judge, I feel obliged to dissent because I believe the language of this waiver is clear and capable of only one construction in this context.

ERVIN, J., joins in this dissent.

19610912

© 1998 VersusLaw Inc.



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