Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 4411, in case of Bert V. James v. Louis Silverstein.
Gordon W. Gerber, with him Frank J. Eisenhart, Jr., and Dechert, Price & Rhoads, for appellant.
Kimber E. Vought, with him William M. Barnes, and Schnader, Harrison, Segal & Lewis, for appellee.
Wright, P. J., Watkins, Jacobs, Spaulding, Cercone, and Spaeth, JJ. (Hoffman, J., absent.) Opinion by Spaeth, J. Hoffman, J., took no part in the decision of this case.
[ 224 Pa. Super. Page 490]
This is an appeal from an order granting a petition to open a confessed judgment.
A race horse was owned by seven persons. Three of the seven agreed to buy the interest of the other four, appellant being one of the four. Part of the agreement was that the three would pay appellant some $247,000, payment to be by judgment notes, to be given appellant by May 5, 1972, one note from each buyer. As security, bonds with a market value of $300,000 were to be deposited in escrow, and if appellant was not paid as agreed, he could confess judgment against the bonds. Appellee, who is the husband of one of the three buyers, posted the bonds. However, the three buyers did not give appellant the judgment notes. Instead, on May 8, which was one business day after May 5, appellee gave appellant his note, in the same amount as the combined total of the three notes agreed upon. On May 22 appellant confessed judgment. On September 28 appellee petitioned the lower court to open the judgment. On November 14 the court granted the petition.
A petition to open judgment is an appeal to the equitable side of the court, and the lower court's decision
[ 224 Pa. Super. Page 491]
will not be disturbed absent a manifest abuse of discretion. Thomasik v. Thomasik, 413 Pa. 559, 198 A.2d 511 (1964). In deciding whether there has been such an abuse, it must be determined whether the petitioner has a defense on the merits, and whether he was reasonably prompt in seeking to have the judgment opened. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970).
Appellee's defense on the merits is that the deviations from the agreement were so immaterial as not to constitute a breach. Appellant acknowledges that appellee's note is as secure as the three notes specified in the agreement would have been. However, he contends that the circumstances in which the agreement was negotiated were such that appellee was on notice that literal compliance would be required.
Perhaps appellant is right. However, he is not so clearly right that it can be said that the lower court abused its discretion in letting appellee into a defense. "Where . . . there is serious doubt as to whether there was any default, . . . the matter should be threshed out before a jury." Arata v. Wright, 101 Pa. Superior Ct. 575, 578 (1931). At least on the present record it appears immaterial that one note was given instead of three; and as regards the fact that the note was given on May 8 instead of May 5, as a general rule the time of performance is not strictly limited to that specified in a contract unless it is stated in the contract, or circumstances show, that time is of the essence. Bogojavlensky v. Logan, 181 Pa. Superior Ct. 312, 124 A.2d 412 (1956). "It is a recognized principle that where time is ...