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TRIANGLE BUILDING SUPPLIES AND LUMBER COMPANY v. ERNEST R. ZERMAN AND EVELYN ZERMAN (09/27/76)

decided: September 27, 1976.

TRIANGLE BUILDING SUPPLIES AND LUMBER COMPANY
v.
ERNEST R. ZERMAN AND EVELYN ZERMAN, HIS WIFE, APPELLANTS



COUNSEL

Ernest R. Zerman, IPP, Evelyn Zerman, pro se.

Irwin S. Lasky, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result.

Author: Jacobs

[ 242 Pa. Super. Page 318]

This is an appeal from an order of the court below dismissing appellants' petition to set aside a confessed judgment.*fn1 We affirm.

On September 28, 1966, appellants executed a promissory note for $3,957.00 in favor of appellee. The note was consideration for materials supplied by appellee which were to be used in the commercial construction of residences by appellants. Several judgment notes were subsequently executed after the original note had come due, so that appellee would refrain from instituting legal action to collect on the original note.*fn2 A final judgment note for the amount of $4,500.00 was executed by appellants on September 6, 1968, once again in order that appellee would not institute legal action. That note, as had the preceding notes, contained a confession of judgment clause. The due date on the final note was three months after the date of execution.

[ 242 Pa. Super. Page 319]

On September 20, 1968, the attorney for appellee entered an appearance and confessed judgment for the full amount of the $4,500.00 note.

Appellants paid appellee $3,150.00 during 1969 and 1970, but did not make further payments on the balance of $1,350.00. On July 8, 1975, appellee, seeking to recover the balance due, filed a praecipe for writ of revival of the judgment entered in September 1968.*fn3 Appellants filed a pro se petition answering the writ of revival and seeking to set aside the confessed judgment.*fn4 This appeal followed.

Appellants do not separately address the various remedies which may be available to them. However, since a proceeding on a praecipe for writ of revival is very narrow in scope, and a petition to open and a motion to strike a confessed judgment are distinctly different remedies, this court will consider each remedy seriatum.

Appellants argue that the appellee, by seeking a writ of revival, has opened the door for attacks on the merits of the original judgment as it was entered in 1968. The law is well-established that in a scire facias proceeding to revive a judgment, no inquiry into the merits of the original judgment will be heard. 6A Standard Pennsylvania Practice 657 (1960).*fn5 Thus, a defendant in a proceeding to revive a judgment is limited to defenses

[ 242 Pa. Super. Page 320]

    such as denial of the existence of the judgment, or subsequent discharge, and may not defend on the basis that there were irregularities in the entry of the original judgment. Smith v. Bald Hill Coal Co., 343 Pa. 399, 23 A.2d 466 (1942). Since the appellants raised only defenses which go to the merits of the original judgment, and did not raise a defense cognizable in a proceeding to ...


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