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YELLOW CAB COMPANY PHILADELPHIA v. CARPOL REALTY CO. (03/24/72)

decided: March 24, 1972.

YELLOW CAB COMPANY OF PHILADELPHIA, APPELLANT,
v.
CARPOL REALTY CO., INC.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, No. 1833, in case of Yellow Cab Company of Philadelphia v. Carpol Realty Co., Inc.

COUNSEL

Bernard J. Smolens, with him Michael Sklaroff, and Schnader, Harrison, Segal & Lewis, for appellant.

Oscar Spivack, for appellee.

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

Author: Jacobs

[ 221 Pa. Super. Page 133]

In this case a confessed judgment was opened by the court below. Plaintiff in the judgment appeals. We affirm.

Both parties are corporations. Appellant held appellee's judgment note in the principal amount of $52,500.00. The note called for monthly payments of $582.87 over a ten-year period. The note required monthly payments to be made on the first of each month and provided for acceleration of the principal and the entry of judgment at the option of appellant should any installment remain unpaid for ten days.

[ 221 Pa. Super. Page 134]

The installment due January 1, 1970, was not paid by January 10th. By letter dated January 15, 1970, appellant demanded payment of the principal balance of $39,514.51 by January 26, 1970. Appellee tendered its check dated January 22 for the January installment which was refused by appellant. Over the next several months unsuccessful efforts were made to settle the matter and on April 14, 1970, appellant confessed judgment against appellee for $39,514.51 plus attorney's commission and interest.

The lower court found that appellee had made thirty-seven consecutive monthly payments prior to January 1970. The court also found that appellant had accepted four late payments, to wit, the payments due on December 1, 1968, June 1, 1969, August 1, 1969, and December 1, 1969. On the basis of these facts the court concluded that the equities were with appellee and that appellee had averred a meritorious defense, the defense being that appellant had waived the right to declare a default for failure to pay by the 10th of the month unless and until prior notice or intent to do so was given.

A petition to open judgment is an appeal to the equitable powers of the court. The judge sits as a chancellor with wide discretion in the consideration of conflicting evidence and the determination of the correct conclusion to be reached therefrom. Universal Builders Supply, Inc. v. Shaler Highlands Corp., 409 Pa. 334, 186 A.2d 30 (1962). On appeal from the opening of a judgment by confession the court below should not be reversed unless a clear abuse of discretion is shown, Stark v. Breen, 435 Pa. 20, 255 A.2d 115 (1969); Balobeck v. Penthouse Club, Inc., 204 Pa. Superior Ct. 496, 205 A.2d 675 (1964), or the lower court has made an error of law. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967).

[ 221 Pa. Super. Page 135]

The tenor of appellant's argument is that appellee did not meet its burden of showing both a valid defense and some equitable grounds for relief. Particularly the appellant argues that there was no evidence of a waiver of the right to accelerate payment and enter ...


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