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RITCHEY v. MARS ET UX. (04/03/74)

decided: April 3, 1974.

RITCHEY
v.
MARS ET UX., APPELLANTS



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1969, No. DSB 6586, in case of Joseph F. Ritchey v. James F. Mars and Elizabeth Mars.

COUNSEL

Samuel M. Rosenzweig, with him Rosenzweig & Rosenzweig, for appellants.

Donald S. Little, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J. Jacobs, J., concurs in the result.

Author: Hoffman

[ 227 Pa. Super. Page 34]

This is an appeal from an order denying appellants' petition to open a judgment, which they contend was entered on a note unsupported by any consideration and obtained by an unauthorized signature thereon.*fn1

[ 227 Pa. Super. Page 35]

On June 7, 1966, the appellee (hereinafter Ritchey) sold a property (Colwyn Road) to the appellants for $35,000.00. The Mellon National Bank provided mortgage financing of $25,000.00, leaving an indebtedness of $10,000.00.*fn2 On December 12, 1967, Mr. Mars signed a note, containing a cognovit clause, payable to Ritchey in the amount of $7,620.00.*fn3 Mr. Mars and another witness stated that he signed the note at Ritchey's behest so that the latter could show a bookkeeping loss. They further testified that Mr. Mars signed his wife's name to the note when Ritchey presented it to him.

In order to open a judgment by confession the judgment debtor must act promptly and produce evidence in support of a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967). There is no contention that appellants failed to act promptly by petitioning to open the judgment within a month of learning that the judgment had been confessed.

As to the requirement of a meritorious defense, a judgment debtor does "not have to prove its case conclusively. All it [must] do [is] produce such evidence as would persuade the court that, upon submission of

[ 227 Pa. Super. Page 36]

    the issue to a jury, a verdict in its favor could be upheld."*fn4 Yellow Cab Company of Philadelphia v. Carpol Realty Co., Inc., 221 Pa. Superior Ct. 132, 136, 289 A.2d 241 (1972).

In the instant case, if appellants' version of the real estate transaction and the signing of the note is accepted,*fn5 there was no consideration for the alleged debt, and this would be a complete and meritorious defense. Act of Oct. 2, 1959, ...


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