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MCDOWELL NATIONAL BANK SHARON v. VASCONI (04/24/62)

April 24, 1962

MCDOWELL NATIONAL BANK OF SHARON
v.
VASCONI, APPELLANT.



Appeal, No. 36, March T., 1962, from judgment of Court of Common Pleas of Mercer County, March T., 1960, No. 565, in case of McDowell National Bank of Sharon v. Herman F. Vasconi, trading as L. Vasconi and Sons, by William Vasconi, attorney in fact, and Ethel G. Vasconi. Judgment affirmed.

COUNSEL

Philip E. Brockway, with him Brockway & Brockway, for appellant.

William J. Joyce, with him Martin E. Cusick, and Wiesen, Cusick, Madden, Joyce, Acker and McKay, for appellee.

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

Author: Musmanno

[ 407 Pa. Page 234]

OPINION BY MR. JUSTICE MUSMANNO

On April 19, 1960, Herman F. Vasconi, trading as Vasconi and Sons, executed a judgment note in the sum of $17,100, payable May 19, 1960, to the McDowell National Bank. On April 22, 1960, he executed another note in the sum of $2,500 payable May 22, 1960, to the same payee, both notes authorizing confession of judgment prior to maturity and providing for a 5% attorney's commission for collection. Neither note mentioned interest.

When the McDowell National Bank confessed judgment on the notes on April 29, 1960, it added to the face amounts the sum of $32.53 as interest so that, plus the 5% attorney's commission, the total amount of the judgment was recorded as $20,612.53, instead of $20,580, which it would have been, had interest not been included. It is conceded that the interest should not

[ 407 Pa. Page 235]

    have been added since the notes were silent on this matter.

The defendants filed a motion in the Court of Common Pleas of Mercer County to strike off the judgment on the basis that this erroneous inclusion of interest vitiated and voided the entire confession of judgment. The court overruled the motion, but did correct the judgment to reflect the proper amount of the debt. The defendants appealed.

They maintain that an improper item in a confessed judgment voids the entire judgment. This statement would seem to find justification in the case of Park-Main Co. v. Fayette National Bank and Trust Co., 397 Pa. 75, where this Court said: "The inclusion of an improper item is a proper basis for striking off a judgment."

This, however, is one of those general statements which must be read and interpreted in the light of the particular circumstances which gave it expression. In the Park-Main case the judgment erroneously included the item of taxes whereas the warrant of attorney in the lease involved authorized only the entry of judgment for rentals due by the tenant. We thus held that the addition of this improper item voided the entire judgment. However, in no case has that ruling been applied where the improper additional item was interest. As early as 1855, in Hummel v. Brown, 24 Pa. 310, this Court described interest as being as much a substantive part of the debt as the principal and thus could not be considered as a ...


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