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JOSEPH A. PULEO & SONS v. ROSSI ET UX. (06/24/75)

decided: June 24, 1975.

JOSEPH A. PULEO & SONS, INC. ET AL.
v.
ROSSI ET UX., APPELLANTS



Appeal from order of Court of Common Pleas of Montgomery County, No. 73-15133, in case of Joseph A. Puleo & Sons, Inc., t/a Joseph A. Puleo Real Estate and Gary D. Bowden and Susanne Bowden, his wife v. Frank T. Rossi and Suellen R. Rossi, his wife.

COUNSEL

Steven R. Sosnov, with him Sosnov & Sosnov, for appellants.

Ronald J. Examitas, and Weiss, Freeman & Goldberg, submitted a brief for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 234 Pa. Super. Page 613]

Appellants contend that the lower court erred in denying their petition to "open, strike, or otherwise set aside a confessed judgment."

On June 1, 1973, appellants Frank and Suellen Rossi signed a real estate sales agreement to purchase the home of the appellees, Gary and Susanne Bowden, located in Phoenixville, Montgomery County, for $19,000. This transaction took place at the offices of Joseph A. Puleo & Sons, Inc., the real estate broker hired by the appellees. The broker accepted a check in the amount of $500 as a

[ 234 Pa. Super. Page 614]

    down payment. In addition, appellants executed a judgment note for $1500 payable to "Joseph A. Puleo Real Estate." The note was due June 5, 1973, and contained a clause authorizing judgment to be confessed "as of any term." The contemplated sale between the parties was never consummated, and appellees confessed judgment on December 11, 1973. On January 15, 1974, appellants filed a petition to open, strike or set aside the confessed judgment, and appellees filed an answer on February 6, 1974. The lower court ordered that a hearing be held on February 14, 1974, and denied the petition on August 24, 1974.

The record reveals conflicting accounts of the events following appellants' offer to purchase the Bowden home. According to the appellants, Mr. Rossi contacted Mr. Puleo on Saturday, June 2, 1973, at 9:45 a.m., informed him that the offer was withdrawn and demanded that his deposit be returned. Appellants claim that Mr. Puleo called Mrs. Bowden, that Mrs. Rossi also contacted Mrs. Bowden by telephone, and that Mrs. Bowden told them that she could not make a definite statement until her husband returned home. Most importantly, appellants allege that the Bowdens did not sign the agreement of sale and thus did not accept the offer tendered by appellants until the afternoon of June 2, 1973.

Appellees gave an entirely different account. They claim that the Rossis called Puleo on the morning of June 2, 1973, and asked for an appointment to see the property. Puleo and the Bowdens allege that the agreement of sale was signed by appellees at 12:30 that afternoon, prior to any attempt by appellants to withdraw their offer.

In order to open a confessed judgment, 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); Wolgin v. Mickman, 233 Pa. ...


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