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CITIZENS NATIONAL BANK EVANS CITY v. ROSE HILL CEMETERY ASSOCIATION BUTLER (06/22/71)

decided: June 22, 1971.

CITIZENS NATIONAL BANK OF EVANS CITY
v.
ROSE HILL CEMETERY ASSOCIATION OF BUTLER, APPELLANT



Appeal from order of Court of Common Pleas of Butler County, June T., 1970, No. 405, in case of The Citizens National Bank of Evans City v. Rose Hill Cemetery Association of Butler.

COUNSEL

William C. Robinson, with him D. B. Tobe, and Henninger & Robinson, for appellant.

G. Helwig, with him Leo M. Stepanian, Steven A. Stepanian, II, Brydon & Stepanian, and Reed, Smith, Shaw & McClay, for appellee.

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

Author: Hoffman

[ 218 Pa. Super. Page 367]

In 1968 appellant executed a mortgage note to appellee in the amount of $44,000. In May of 1970 appellee confessed judgment against appellant by virtue of a warrant of attorney contained in the mortgage note, and execution was issued on the judgment. Appellant thereafter filed a petition to open or strike the judgment, alleging, inter alia, that appellee had failed to follow the applicable procedures enunciated in Pennsylvania Rule of Civil Procedure 2950 et seq., with respect to confessions of judgment.*fn1

[ 218 Pa. Super. Page 368]

Subsequently,*fn2 appellee filed a petition for leave to file a complaint nunc pro tunc. The lower court in its opinion noted that "for reasons unknown to this court" appellee had failed to follow the procedures mandated by the Pennsylvania Rules of Civil Procedure in obtaining the first confession of judgment. The trial judge then said: "The affidavit of default in this case is similar in some respects to the 'new' Complaint now required under the rules. Like Alice in Wonderland I can dub this affidavit a Complaint, and get around counsel's argument that since there is no Complaint filed, there is nothing to amend."

We believe that the lower court has no such power. While our courts will allow amendment of strictly formal defects, West Penn Sand & Gravel Co. v. Shippingsport Sand Co., 367 Pa. 218, 80 A.2d 84 (1951), "[t]he entry of a valid judgment can only be accomplished if such entry is accomplished in rigid adherence to the provisions of the warrant of attorney." Scott Factors, Inc. v. Hartley, 425 Pa. 290, 293, 228 A.2d 887, 888 (1967). The Pennsylvania Rules of Civil Procedure

[ 218 Pa. Super. Page 369]

    must also be strictly followed if a valid confession of judgment is to be entered.

The Court below maintains that Pennsylvania Rule of Civil Procedure 126 gives the court "a wide latitude of discretion" to allow appellee to file a complaint nunc pro tunc. Rule 126 states: "The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties."

Both the lower court and appellee overlook the fact that a confession of judgment may well affect "the substantial rights of the parties." "The burdens of establishing a defense imposed upon a defaulting debtor who has signed a contract containing a confession of judgment clause and against whom judgment has been entered are greater than those faced by the typical debtor." Swarb v. Lennox, 314 F. Supp. 1091, 1094 (E.D. Pa. 1970), certiorari granted, 401 U.S. 991, 91 S. Ct. 1220 (1971). For example, if a debtor seeks to open judgment, the burden of proof is shifted and it is the debtor who must convince the court that he is ...


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