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COLONY FEDERAL SAVINGS AND LOAN ASSOCIATION v. BEAVER VALLEY ENGINEERING SUPPLIES COMPANY (ET AL. (03/29/76)

decided: March 29, 1976.

COLONY FEDERAL SAVINGS AND LOAN ASSOCIATION
v.
BEAVER VALLEY ENGINEERING SUPPLIES COMPANY (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of Beaver County, No. 760 of 1974, in case of Colony Federal Savings and Loan Association, formerly Monaca Savings and Loan Association v. Beaver Valley Engineering Supplies Company, and Michael Baker, Jr., and Myrtle Baker, his wife, and Penn-Beaver Hotel Corporation, intervening defendant.

COUNSEL

Kenneth W. Behrend, with him Mark B. Aronson, and Behrend and Aronson, for appellant.

James C. Tosh, with him R. C. Riethmuller, John B. Prather, and Luce, Good, Tosh and Associates, and Markus, Riethmuller & Smith, for appellees.

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

Author: Jacobs

[ 238 Pa. Super. Page 542]

This appeal is brought from refusal of the lower court to strike off a judgment entered by confession upon a note. Appellant's claim is that the court below should not have amended the judgment by striking therefrom a provision for attorney's fees and interest and a provision to pay in installments, but should have stricken the entire judgment. We agree with the court below that the judgment was properly amended and we therefore affirm.

Plaintiff-appellee, Colony Federal Savings and Loan Association (hereinafter Colony) entered judgment by confession against defendants Beaver Valley Engineering

[ 238 Pa. Super. Page 543]

Supplies Company (hereinafter Beaver Valley) and Michael Baker, Jr. and Myrtle Baker, on June 4, 1974. Judgment was entered pursuant to a warrant of attorney contained in a mortgage note dated September 5, 1967. This note was given from Beaver Valley and the Bakers to Colony. On June 19, 1974, Penn-Beaver Hotel Corporation (hereinafter Penn-Beaver) filed a petition to intervene, alleging, inter alia, that it was owner of the premises covered by the mortgage which accompanied the mortgage note. Penn-Beaver's petition to intervene was granted and it filed petitions to strike and to open the judgment.

After argument, Penn-Beaver's petition to open was denied and its petition to strike was denied in part and granted in part and the judgment was amended by striking therefrom provisions for attorney's fees, interest and the provision to pay in installments, on January 15, 1975. Penn-Beaver thereafter appealed to this Court, raising only the propriety of the lower court's ruling on its motion to strike.

The warrant of attorney pursuant to which the June 4, 1974 judgment was entered was contained in the September 5, 1967 mortgage note from Beaver Valley and the Bakers to Colony, and provides, inter alia, as follows: "AND the said Obligor do hereby empower any attorney of any Court of Record within the Commonwealth of Pennsylvania or elsewhere to appear for it and with or without a declaration filed, confess judgment against it in favor of the Obligee, its successors or assigns, as of any term, for the sum of Five Hundred Sixty Thousand ($560,000.00) Dollars, which sum shall include and cover all payments required to be made by the Obligor in and by the terms and conditions of this Note as hereinafter set forth, including also an attorney's commission for collection of five per centum of the total of all such payments, together with costs of suit; . . . and for the confession and entry of such judgment, this shall be

[ 238 Pa. Super. Page 544]

    sufficient warrant and authority." The judgment entered by counsel for Colony reads as follows: "By virtue of the power of attorney above recited I do hereby appear for said defendants Beaver Valley Engineering Supplies Company and Michael Baker, Jr. and Myrtle Baker, his wife, and confess judgment against it and them and in favor of the said Plaintiff Colony Federal Savings & Loan Association for the sum of Five Hundred Sixty Thousand ($560,000.00) Dollars debt, and Six Thousand ($6,000.00) Dollars Attorney's Commission in all ...


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