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BETTER LIVING v. FILOSA. (09/13/62)

September 13, 1962

BETTER LIVING, INC., APPELLANT,
v.
FILOSA.



Appeal, No. 169, Oct. T., 1962, from order of County Court of Philadelphia, June T., 1961, No. 308-C, in case of Better Living, Inc. v. Andrew Filosa et al. Order affirmed.

COUNSEL

Ronald Ziegler, with him Snyder & Lowenschuss, for appellant.

Ray E. Machen, for appellees.

Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).

Author: Wright

[ 199 Pa. Super. Page 111]

OPINION BY WRIGHT, J.

We are here concerned with an appeal from an order of the County Court of Philadelphia making absolute

[ 199 Pa. Super. Page 112]

    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: Bergman v. Bonetti, 192 Pa. Superior Ct. 170, 159 A.2d 571; Alliance Discount Corp. v. Shaw, 195 Pa. Superior Ct. 601, 171 A.2d 548. And see Duquesne Light Co. v. Pittsburgh Railways Co., 400 Pa. 565, 162 A.2d 350.

The record discloses that, on April 17, 1961, appellant entered into a contract with Andrew Filosa and Anna Filosa, his wife, under the terms of which appellant agreed to furnish certain materials and to perform certain work upon premises at 465 Cosgrove Street in the City of Philadelphia, for the price of $931.00. This contract contained, inter alia, the following provision: "All terms are cash on delivery unless financing is to be provided at seller's option". On May 15, 1961, the Filosas executed a note in amount of $1,350.00, payable in sixty monthly installments of $22.50 each, the first of which was due May 19, 1961. This note provided that failure to pay any installment when due would cause the full amount to become immediately payable and authorized confession of judgment therefor. It also provided for an attorney's commission of fifteen percent for collection and a "late charge" of five cents for each one dollar overdue. On June 6, 1961, appellant entered judgment on this note in the face amount of $1,350.00. No averment of default was filed at the time the judgment was entered.

The instant proceeding had its inception on August 2, 1961, when the Filosas filed a petition upon which the court below granted a rule to show cause why the judgment should not be stricken or opened. It was averred in this petition that only part of the work was completed, that the work which had been done was not performed in a proper manner, that the materials used

[ 199 Pa. Super. Page 113]

    were defective, and that no averment of default had been filed. On October 16, 1961, appellant belatedly filed an averment of default and, on October 18, 1961, an answer to the petition. In the answer it was averred that a substantial portion of the work had been completed in proper manner, and with proper materials, and that the Filosas had refused ...


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