Appeal from order of Court of Common Pleas of Bucks County, Sept. T., 1968, No. 1663, May T., 1969, No. 161, in case of Bucks County Bank & Trust Company v. Cornelius DeGroot and Helena DeGroot.
Jonathan D. Dunn, for appellants.
Allan K. Grim, Jr., with him Grim and Grim, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Jacobs, J.
[ 226 Pa. Super. Page 420]
The issue before us is whether the lower court abused its discretion in refusing to open two judgments entered by confession against appellants. After a review of the record and the law, we find no abuse of discretion and affirm.
On November 9, 1967, appellants, Cornelius and Helena DeGroot, signed two judgment notes totaling $16,900 in favor of appellee, Bucks County Bank & Trust Company [hereinafter referred to as "Bank"]. The proceeds of the notes were used to benefit Elizabeth DiMiglio, a personal friend of the DeGroots. Although
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several interest payments were made, nothing was paid on the principal of the notes and the Bank confessed judgment against the DeGroots. On April 14, 1971, the DeGroots petitioned the lower court to open the judgments, alleging fraud by the Bank and Mrs. DiMiglio in inducing them to sign the notes and in disposing of the funds. In its answer the Bank denied the allegations and asserted that the DeGroots knew that they were signing judgment notes and had authorized the disposition of the funds.
Depositions were taken of Mrs. DeGroot, Mr. DeGroot, and Ernest S. Moyer, the manager of the Bank, who had handled the transaction. The depositions reveal the following facts: After being approached for financial help by Mrs. DiMiglio, the DeGroots agreed to take out loans so she could improve her house and pay off certain obligations. Mrs. DiMiglio notified the Bank of this, and Mr. Moyer called the DeGroots for confirmation. The DeGroots were told to come to the Bank since the papers were ready to be signed. At the Bank, the DeGroots signed two judgment notes in a matter of minutes without reading them. They admitted that they were in a hurry to return home. Mrs. DiMiglio's name did not appear on the notes, nor did she sign them. However, the DeGroots thought they had cosigned the notes with Mrs. DiMiglio, although they admitted that Mr. Moyer had never told them that and had not prevented them from reading the notes. Moreover, Mr. Moyer stated that he had informed the DeGroots that the Bank would not take Mrs. DiMiglio's name on any note because of her marital status.*fn1 The DeGroots alleged that Mr. Moyer had told them that their loans were safe since they had Mrs. DiMiglio's
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house to fall back on when in fact they had no security. However, Mr. Moyer denied making those statements.
When the proceeds of the loans were ready to be disbursed, Mr. Moyer said that he telephoned the DeGroots and Mr. DeGroot told him to distribute the proceeds as directed by Mrs. DiMiglio. Mr. DeGroot denied making such an authorization, but said he expected the proceeds to be distributed for Mrs. DiMiglio's benefit by her attorneys. Mr. Moyer testified that the proceeds were distributed in the specific way Mrs. DiMiglio requested. The Bank never informed the DeGroots of the itemized distribution, and the DeGroots never inquired into it. The DeGroots believed that part of the money would pay off the mortgage on Mrs. DiMiglio's house, but they never told this to the Bank. On the other hand, the Bank understood from Mrs. DiMiglio that the mortgage was to be "caught up." Apparently, ...