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FIRST PENNSYLVANIA BANK N.A. v. WEBER (ET AL. (06/28/76)

decided: June 28, 1976.

FIRST PENNSYLVANIA BANK N.A.
v.
WEBER (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of Montgomery County, No. 74-12328, in case of First Pennsylvania Bank N.A. v. Joan M. Weber, Foerderer Tract Committee, Inc., Forward Lands, Inc., Eagson Corporation. Appeal of: Eagson Corporation.

COUNSEL

Manuel A. Spigler, with him Stassen, Kostos and Mason, for appellant.

Norman R. Bradley, with him Saul, Ewing, Remick & Saul, for appellee.

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

Author: Jacobs

[ 240 Pa. Super. Page 595]

This appeal arises from denial of defendant-appellant Eagson Corporation's petition to strike or open a confessed judgment entered against it and three others by plaintiff-appellee First Pennsylvania Bank N.A. We have concluded that the lower court properly denied appellant's petition to strike or open and therefore affirm the order of the court below.

Plaintiff-appellee First Pennsylvania Bank N.A. ("Bank") entered judgment by confession on August 23, 1974 against defendants Joan M. Weber, Foerderer Tract Committee, Inc. ("Committee"), Forward Lands, Inc. ("Forward"), and appellant Eagson Corporation ("Eagson"), jointly and severally, in the amount of $2,805,497.14. The aforementioned defendants were signers of a note in the principal amount of $3,295,000.00 which was dated November 6, 1972. The note was secured by a mortgage of the same date upon premises known as the "Foerderer Tract."

On September 6, 1974, Eagson filed a petition to open or strike the judgment. Depositions were taken and oral argument was heard before the court below en banc, which dismissed appellant's petition. Eagson's contentions below, as set forth in its petition and on oral argument, were that the confessed judgment was unauthorized and excessive as to it and that it had a meritorious defense to the judgment. The latter claim consisted of its allegation that it was an accommodation party to the note, having been assured that no action

[ 240 Pa. Super. Page 596]

    would be taken against it until remedies were exhausted against the principals, of a claim that it had been advised that it would be released when partial payment of the principal was made in the form of assignment of certain pledges and contributions, and of a claim that it was induced to sign the note based on the above representations. The lower court concluded that the judgment was neither unauthorized nor excessive as to Eagson. It further held that Eagson had failed to produce evidence of a meritorious defense "which in a jury trial would require the issues to be submitted to a jury." See, Pa.R.C.P. 2959(e).

On appeal to this Court appellant first advances two arguments relative to denial of its motion to strike. It claims that the court below erred in refusing to strike the judgment because the terms of the note are inconsistent with a loan agreement which was contemporaneously signed by the other defendants but not by Eagson. We observe initially that this argument does not appear from the record to have been made below. We may not, therefore, consider it on appeal to this Court. See, e.g., Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Moreover, even if the loan agreement was inconsistent, that fact would not provide a proper basis for granting a motion to strike on the facts of this case. In determining the validity of a confessed judgment which is attacked by a petition to strike we are limited in our review to matters appearing on the face of the record. Northway Village No. 3, Inc. v. Northway Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968). On the face of the record of judgment before us we cannot conclude that the judgment should have been stricken on the basis set forth by appellant, since the judgment was regularly entered on the note and not on the loan agreement.

Eagson also claims here, as it did below, that the judgment should have been stricken because unauthorized and excessive as to it. Appellant is correct in its ...


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