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CARRIER v. WILLIAM PENN BROADCASTING COMPANY (09/26/67)

decided: September 26, 1967.

CARRIER
v.
WILLIAM PENN BROADCASTING COMPANY, APPELLANT



Appeal from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1965, No. 5291, in case of Paul V. Carrier and Maria L. Carrier v. William Penn Broadcasting Company.

COUNSEL

Michael H. Egnal, with him Egnal & Simons, for appellant.

Theodore R. Mann, with him Gerald Gornish, and Goodis, Greenfield, Narin & Mann, for appellees.

Bell, C. J., Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno and Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: O'brien

[ 426 Pa. Page 428]

In June of 1957, appellees entered into an agreement, as part of a sale of their drug business to Sun Ray Drug Company, which agreement provided that they would perform consultative services for Sun Ray for a period of 15 years at an annual compensation of $14,000. Payments under this agreement were to be made in quarterly installments of $3,500 each. No payments were made on this agreement subsequent to July of 1964, and in March of 1965, Sun Ray negotiated the sale of its assets to Marrud, Inc.

Appellees pressed for payment of their compensation under the agreement, and threatened to take legal action to enjoin the sale from Sun Ray to Marrud. They contended that they had not been given proper notice of the sale, in conformity with the provisions of the Uniform Commercial Code relative to bulk sales.

[ 426 Pa. Page 429]

Appellant is a corporation whose president, William Sylk, was also president of Sun Ray. A majority of appellant's directors are also on the Board of Sun Ray, and the corporations are closely related. Under pressure of appellees' prospective suit, appellant executed a note, payable to appellees, in the amount of $75,000. The note was signed by William Sylk, President, and Sidney Goldstein, Secretary. As consideration for the note, appellees assigned to appellant their rights in the consultative contract with Sun Ray. The note was payable on April 20, 1965, and on May 11, 1965, judgment was confessed on the note in the amount of $75,000 with interest and attorney's fees, for a total of $78,996.57.

Appellant filed a petition for a rule to show cause why the judgment should not be opened, and appellant admitted to a defense. The requested rule issued, and after completion of the pleadings and the taking and filing of depositions, the court below discharged the rule. This appeal followed.

A petition to open a judgment is an appeal to the equitable side of the court, and the petition must establish equitable considerations which convince the court that justice would best be served by opening the judgment. McDonald v. Allen, 416 Pa. 397, 206 A.2d 395 (1965); Kramer v. Phila., 425 Pa. 472, 229 A.2d 875 (1967); and the disposition of the petition will not be disturbed on appeal unless a clear abuse of discretion is shown. Good v. Sworob, 420 Pa. 435, 218 A.2d 240 (1966); Thomasik v. Thomasik, 413 Pa. 559, 198 A.2d 511 (1964), and cases cited therein.

In this appeal, appellant contends that the note executed by it, through its president and secretary, was unauthorized, and that the note was given under duress "for the sole purpose of forestalling the financial devastation of ...


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