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

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 ...


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