Appeals, Nos. 241 and 302, Jan. T., 1963, from orders of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1962, Nos. 4572, in case of Joseph DeRose v. Joseph Lombardi, Robert Lombardi, Dominic J. Lombardi et al. Orders reversed.
James J. DeMarco, for appellant.
Richard J. Gordon, with him Dilworth, Paxson, Kalish, Kohn & Dilks, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
Joseph DeRose is the payee on two judgment notes totaling $25,000. The notes are dated February 16, 1950, payable one year after date, and each is signed as follows:
"Joseph Lombardi & Sons by Joseph Lombardi"
Both notes contain a warrant of attorney to confess judgment, and, upon leave of court, judgment was confessed against Joseph Lombardi, Dominic J. Lombardi, Robert Lombardi, Joseph P. Lombardi, Jr., and Joseph Lombardi & Sons. The confession of judgment was supported by affidavits alleging that at the time of execution of the notes, Joseph Lombardi & Sons was a partnership consisting of the above named individuals and Horace N. Lombardi who had passed away prior to the entry of the notes of record. The affidavit further averred that Joseph Lombardi had executed the notes on behalf of the partnership and with the authority and knowledge of the individual partners.
Robert Lombardi filed a motion to strike the judgment in which he urged that it had been entered against persons not parties to the note and that the warrant
of attorney was insufficient in law to authorize the prothonotary to enter judgment against the persons named because of the absence on the face of the notes of any authority in the signer. The matter was heard in the Court of Common Pleas of Philadelphia County, and the motion to strike was granted. Hence, this appeal.
A subsequent motion to strike was filed by the other defendants who alleged the two grounds already stated, plus a third basis upon which to strike off the judgments, the Uniform Partnership Act, March 26, 1915, P.L. 18, 59 P.S. §§ 1-151. ...