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WOLGIN v. MICKMAN (ET UX. (03/31/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 31, 1975.

WOLGIN
v.
MICKMAN (ET UX., APPELLANT)

Appeals from order of Court of Common Pleas of Montgomery County, Nos. 72-2674, 72-4301, and 72-8781, in case of Sidney Wolgin v. Mark Mickman and Sylvia Mickman; Louise and Gilbert Cooper Foundation v. Mark Mickman and Sylvia Mickman; Sidney Wolgin v. Mark Mickman and Sylvia Mickman.

COUNSEL

Victor J. Roberts, with him High, Swartz, Roberts & Seidel, for appellant.

Emanuel A. Bertin, with him Pechner, Sacks, Dorfman, Rosen & Richardson, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 233 Pa. Super. Page 220]

Appellant contends that the court below erred in refusing to open the judgments confessed against appellant on three judgment notes, allegedly signed by appellant's husband without her authority.

In the early part of 1972, appellant's husband, Mark Mickman, signed both his name and that of appellant, Sylvia Mickman, to three judgment notes.*fn1 The appellees lent Mark Mickman $33,500, apparently for use in one or another of Mr. Mickman's businesses. The notes were given to secure those loans. On March 9, 1972, appellee Wolgin confessed judgment for $18,500 on the note dated January 19, 1972. Appellee Louise and Gilbert Cooper Foundation confessed judgment on April 20, 1972, for $10,000 on the note dated March 30, 1972. On August 8, 1972, a second judgment was entered in favor of appellee Sidney Wolgin in the amount of $5,000 on the note dated February 2, 1972. The appellant filed petitions to open all three judgments. On September 12, 1973, the three cases were consolidated for hearing and argument by stipulation of counsel and order of the lower court. Depositions were taken by both appellant and appellees. After oral argument, the lower court en banc entered an order, dated

[ 233 Pa. Super. Page 221]

June 20, 1974, denying the petitions to open judgment. This appeal followed.

In order to open a confessed judgment, a party must act promptly*fn2 and aver a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Cheltenham National Bank v. Snelling, 230 Pa. Superior Ct. 498, 326 A.2d 557 (1974). Appellant alleges that her husband had no authority to affix her signature to the notes. The only question at issue in this appeal, therefore, is whether the lower court properly determined that appellant failed to establish this defense. A petition to open a judgment by confession is an appeal to the discretion of the lower court. Bucks County Bank & Trust Co. v. DeGroot, 226 Pa. Superior Ct. 419, 313 A.2d 357 (1973). Nevertheless, the lower court may be reversed for an abuse of that discretion. Ritchey v. Mars, 227 Pa. Superior Ct. 33, 324 A.2d 513 (1974). Indeed, Pennsylvania appellate courts have often reversed lower courts which refused to open confessed judgments entered against wives who averred that their husbands had affixed their signatures to notes without their authority. Funds for Business Growth, Inc. v. Maraldo, 443 Pa. 281, 278 A.2d 922 (1971); Yank v. Eisenberg, 408 Pa. 36, 182 A.2d 505 (1962); Ritchey v. Mars, supra.

In a proceeding to open a confessed judgment, "[i]f evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment." Rule 2959(e), Pa. R.C.P., effective December

[ 233 Pa. Super. Page 2221]

, 1973. (Emphasis supplied).*fn3 "Thus, a court can no longer weigh the evidence in support of the defense, but must only determine whether there is sufficient evidence to allow the issue to go to the jury." Ritchey v. Mars, supra, 227 Pa. Superior Ct. at 36, n. 4, 324 A.2d at 515, n. 4. Therefore, in order to retain their confessed judgments, the appellees must demonstrate as a matter of law that appellant's signature on the three notes, affixed by her husband, was genuine and authorized, and not forged.*fn4

The appellees produced no evidence that appellant either signed the notes or expressly authorized her husband to sign them for her. Appellees argue, however, that appellant had implicitly authorized her husband to sign her name on the notes because she had previously authorized him to sign her name on other documents.*fn5 Alternatively, appellees argue that if the husband's initial signature was without authority, it was subsequently ratified by appellant.

[ 233 Pa. Super. Page 223]

"Where the authority of an agent is to be implied from the conduct of the parties, the fact and scope of agency are for the jury," Biedenbach v. Teague, 22 D. & C. 2d 588, 593 (C.P. Butler Co. 1960), aff'd per curiam on the opinion of the lower court, 194 Pa. Superior Ct. 245, 166 A.2d 320 (1960), citing Brock v. Real Estate Land Title and Trust Co., 318 Pa. 49, 178 A. 146 (1935). Here, appellees attempted to show that because appellant's husband had signed her name to some of their joint income tax returns in the past, and had signed her name to an earlier series of judgment notes, appellant had implicity authorized her husband to sign her name to the three judgment notes in question. Appellant, on the other hand, testified that she had in no way authorized her husband to affix her signature. Her husband refused to answer any questions about his authority to sign the notes or his possible forgery of her signature on the grounds that any answer might tend to incriminate him. It appeared that he had brought the notes to the lenders with his wife's signature affixed, and had represented it to be her genuine signature. Under the circumstances, the question of Mark Mickman's authority to sign appellant's name on the notes presents a question of fact which should be resolved by a jury.

The evidence of ratification presented by appellees is also equivocal. Appellees point to the fact that appellant apparently endorsed both her own name and her husband's name on one $2,000 check from appellee Wolgin, dated January 19, 1972, which was deposited in their joint bank account.*fn6 Nevertheless, as other testimony indicated that appellant's husband used funds from the joint bank account for his personal business purposes, the lower court could not infer as a matter of law that appellant

[ 233 Pa. Super. Page 224]

    received personal benefits from these checks.*fn7 Nor is there any clear evidence that appellant even knew that the check had been received in exchange for a judgment note.*fn8 Thus, appellees' evidence of ratification would at best present a jury issue.

Moreover, the only judgment note which could have been ratified by appellant's receipt of this check was the $18,500 note from appellee Wolgin of the same date. This judgment note allowed judgment to be entered "as of any term," that is, at any time, and was therefore non-negotiable under the Uniform Commercial Code, § 3-112(1)(d), 12 P.S. § 3-112(1)(d), Act of April 6, 1953, P.L. 3, § 3-112(1)(d), as reenacted and amended. Smith v. Lenchner, 204 Pa. Superior Ct. 500, 205 A.2d 626 (1964). See also Cheltenham National Bank v. Snelling, supra. The Pennsylvania Supreme Court has held that, as a matter of public policy, a forged signature of a non-negotiable note cannot be ratified.*fn9 Funds for Business Growth, Inc. v. Maraldo, supra. Appellant has presented evidence on the basis of which a jury could find that appellant's husband had committed forgery by signing this note. Should a jury make such a finding, appellant would prevail despite appellees' evidence of ratification.

The judgment holders have not proved as a matter of law that appellant's signature on the judgment notes was authorized. Nor have they proved as a matter of law that the signature, although unauthorized, was subsequently

[ 233 Pa. Super. Page 225]

    ratified by appellant. Therefore, the judgments should be opened and appellant allowed to present a defense.*fn10

The order of the court below is reversed and the case remanded for further proceedings consistent with this opinion.

Disposition

Order reversed and case remanded for further proceedings.


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