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GIRARD TRUST BANK v. REMICK ET UX. (11/12/69)

decided: November 12, 1969.

GIRARD TRUST BANK, TO USE,
v.
REMICK ET UX., APPELLANTS



Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1966, No. 1048, in case of Girard Trust Bank to use of Adal Corporation v. Benjamin Remick et ux.

COUNSEL

Leonard S. Wissow, with him Wissow and Odza, for appellants.

James R. Mathewson, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 215 Pa. Super. Page 376]

In this case appellants, Benjamin and Rose Remick, husband and wife, appeal the denial of their petition to strike off or in the alternative to open a judgment

[ 215 Pa. Super. Page 377]

    entered in the amount of $6192. On March 21, 1966, after receiving a loan in the principal amount of $4993.54 from appellee bank, Mr. and Mrs. Remick executed and delivered their note under seal for $6192. Eighteen months later the bank averred default, and assessed damages to the extent of $2996.94. Execution on that judgment has been stayed pending this appeal.

The court below ordered the case to be decided on the basis of petition and answer as appellants failed to file depositions supplementing their pleadings. All the facts alleged in the bank's answer responsive to the petition must be taken as true. Rule 209 Pa. Rules of Civil Procedure.

Appellee stated in its answer that the judgment was entered in accordance with usual banking practices. The charge of $1198.46 was not for one day's interest as claimed by appellants, but represented interest charges at the rate of 6% per annum computed on a discount basis for the thirty-six month period of the debt. Appellants were to repay the debt at the rate of $172 per month.

Appellate review of lower court decisions in this area lies only where the lower court has abused its discretion. The lower court abuses its discretion when it misapplies the law or when a manifestly unreasonable, biased, or prejudiced result is reached. Mielcuszny et ux. v. Rosol, 317 Pa. 91, 176 Atl. 236 (1934).

Appellants cite Bauer v. Hill, 267 Pa. 559, 110 Atl. 346 (1920), for the position that the reviewing court should consider the petition de novo when the facts are undisputed. That case as well as the instant case was decided on assumed or given facts. However, Bauer was an action in Equity and involved the construction of the word "sale" in a lease leaseback situation. This case is an action at law and is factually distinguishable. ...


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