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COMMONWEALTH v. BROTHERS VALLEY COMPANY (ET AL. (11/14/67)

decided: November 14, 1967.

COMMONWEALTH
v.
BROTHERS VALLEY COMPANY (ET AL., APPELLANT)



Appeals from orders of Court of Common Pleas of Dauphin County, Nos. 498, 564 and 652 Commonwealth Docket 1964, and Nos. 23, 28, 29, 38, 95, 285, 349, 350, 472, 475, 542, 581, 602 to 626, inclusive, 653 Commonwealth Docket 1965, in case of Commonwealth of Pennsylvania v. Brothers Valley Company and Resolute Insurance Company.

COUNSEL

Rod J. Pera, with him J. Thomas Menaker, and McNees, Wallace & Nurick, for appellant.

Leon Ehrlich, Deputy Attorney General, with him William C. Sennett, Attorney General, for Commonwealth, appellee.

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

Author: Per Curiam

[ 427 Pa. Page 500]

Forty-two separate judgments were entered against the Resolute Insurance Company on various bonds filed by it as surety under the terms of the Bituminous Coal Open Pit Mining Conservation Act (Act of May 31, 1945, P. L. 1198, as amended, 52 P.S. ยง 1396.4 et seq.), pursuant to a confession of judgment clause contained in the bond instrument. Petitions to strike the judgments off the record were filed in each of the cases in the Court of Common Pleas of Dauphin County at the Commonwealth Docket. They were dismissed. The issues involved in each of the forty-two cases being identical, all the cases were consolidated for appeal to, and argument before this Court.

The Resolute Insurance Company contends that the judgments confessed were defective on their face for several reasons. The company's principal argument in this respect is that neither the executed and attested original nor an executed and attested copy of the bond instrument containing the confession clause was filed

[ 427 Pa. Page 501]

    of record. The answer to this depends on what interpretation is to be given to the following language of that bond instrument: "And Further, the principal and surety above-named, upon the happening of any default on the conditions and obligations assumed under this bond and the declaration of a forfeiture by the Secretary of Mines and Mineral Industries, the period for appeal provided by the Act having expired, authorize and empower the Attorney General of the Commonwealth of Pennsylvania, or any other attorney of any Court of Record in Pennsylvania, or elsewhere, by him deputized for the purpose, to appear for and confess judgment against them in favor of the Commonwealth with or without defalcation, with costs of suit, release of errors, without stay of execution, and the principal and surety doth also hereby waive the holding of an inquisition of any real estate that may be levied on by virtue thereof. And for the doing of these acts, this instrument or a copy thereof, attested as aforesaid, shall be full warrant and authority."

The Commonwealth filed with the prothonotary and attached to the confession of judgment an electrostatic copy produced by the use of a Xerox copying machine. No attestation as to its being a true and correct copy was attached. Thus, the question arises: Was the filing of such an unattested copy authorized by the above-quoted language of the bond under which the confession of judgment was entered? The Insurance Company contends that the phrase "attested as aforesaid" applies to the copy authorized to be filed and that unless the copy is so attested compliance with the confession of judgment clause has not been made. In reply, the Commonwealth, argues that the term "Attested as Aforesaid" merely refers back to the instrument or bond itself, that is, the original, and that so long as it was attested to, then a true and correct copy thereof is sufficient to authorize the confession

[ 427 Pa. Page 502]

    of judgment. The lower court agreed. We find no reason for disagreement with this conclusion. A logical reading of the language shows that the term "attested as aforesaid" was not intended to qualify or condition the kind of copy to be filed but was intended to insure that the original bond itself should be attested, and that a true and correct copy of the bond so attested could be filed in place of the original. The Insurance Company sees much danger in this conclusion in that it foresees the possibility of simultaneous filing of the same bond in every county merely by filing a copy in each of the counties, and, in such a case, the debtor would have to petition in each of the counties involved. However, this effect would not be avoided merely by having an attestation to the authenticity of the filed copy because it also could be so simultaneously filed. Furthermore, as pointed out by the Commonwealth, even where only the original is permitted to be filed, the judgment can be certified to the other counties within the Commonwealth.

The Insurance Company also argues that the Commonwealth failed to allege in what manner the company or its principal had defaulted on the bond. The Commonwealth in its confession of judgment averred that "defendants have neglected and failed to comply with the requirements of the said Bituminous Coal Open Pit Mining Conservation Act, with respect to the lands affected by open pit mining operations for which the said bond was executed and delivered by the defendants. . .". The Insurance Company claims the Commonwealth should have stated the particular requirements of the Act which had not been met. In Park-Main Co. of Penn., Inc. v. Fayette National Bank & Trust Co., 397 Pa. 75, we pointed out ...


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