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TIME SALES FINANCE CORP. v. PARKS ET AL. (06/13/62)

June 13, 1962

TIME SALES FINANCE CORP.
v.
PARKS ET AL., APPELLANTS.



Appeal, No. 2, Oct. T., 1962, from decree of Court of Common Pleas of Delaware County, June T., 1960, No. 2194, in case of Time Sales Finance Corp. v. Vertell Parks et al. Decree discharging rule to strike off or open judgment of possession vacated and record remanded; decree discharging rule to strike off assessment of damages reversed and judgment stricken.

COUNSEL

Maurice M. Green, for appellants.

Edward Kassab, with him Kassab, Cherry & Curran, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 198 Pa. Super. Page 581]

OPINION BY FLOOD, J.

This appeal raises two legal questions: (1) the right to enter a judgment for possession by confession in a replevin action and (2) the right to enter a money judgment in the same action for the unpaid balance due on the purchase price of the property replevied. There is also a factual question as to whether blanks in the installment sales contract were improperly filled in by the plaintiff.

Certain luncheonette equipment purchased by the defendants was financed by the plaintiff under a security agreement. Judgments were entered by confession under warrants contained in the agreement (a) for possession of the equipment and (b) for the amount claimed to be due under the agreement. The court below refused to strike off or open these judgments.

The authority relied upon for the entry of the judgments is contained in paragraph 14 of the security agreement originally executed by the parties in blank but subsequently filled in by the plaintiff. By the terms of this agreement, as filled in by the plaintiff, the defendants, as "Borrower", under date of December 4, 1959, assigned to the plaintiff, "Lender", their title to certain restaurant equipments as security for a loan in the sum of $3,209.60, which they agreed to repay in seventy-one semi-monthly installments of $45 each, plus a final installment of $14.60, the first installment to be payable January 4, 1960.

Paragraph 14 of the security agreement provides, in part, as follows: "14. In the event of default by Borrower, Lender shall have the following rights ... (a) the right to enter judgment in replevin for immediate

[ 198 Pa. Super. Page 582]

    possession of the property. For this purpose Borrower hereby authorizes the Prothonotary or any Attorney of any Court of Record to appear for and confess judgment against Borrower in favor of Lender in any action of replevin instituted by Lender to recover possession of the property for which this agreement shall be his sufficient warrant. ... (c) the right to enter judgment for the full amount of the total indebtedness then unpaid, plus interest and costs. For this purpose Borrower hereby authorizes the Prothonotary or any Attorney of any Court of Record to appear for and confess judgment ... for the whole amount of the total indebtedness unpaid plus interest and costs, with 10% ... added for attorney's fees. ..."

The plaintiff, by its attorney, instituted this action on August 18, 1960, by filing of record the following documents: a praecipe for a writ of replevin with bond covering the equipment described in the security agreement; an affidavit stating that such equipment had a value of $1500; an averment of default alleging that the defendants had failed to make the payments required by the security agreement and that the full amount of the loan was then overdue and unpaid; and a praecipe for judgment, signed only by the plaintiff's attorney, as "Attorney for Plaintiff", directing the prothonotary to enter in favor of the plaintiff and against the defendants ...


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