No. 1702 October Term 1975 Appeal from the Order Dated June 20, 1975, of the Court of Common Pleas of Lackawana County at No. 514 March Term 1973.
Paul A. Barrett, Scranton, for appellant.
Otto P. Robinson, Jr., Scranton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Cercone, J., files a concurring opinion. Van der Voort, J., files a concurring and dissenting opinion.
[ 247 Pa. Super. Page 233]
The question in this case is whether a proceeding to revive a judgment, if it is validly conducted and the revived judgment is duly entered, puts the original judgment beyond reach of a petition to strike or open.
On September 1, 1972, Richard M. Edwards, Jr., and John W. Edwards executed an installment note in the amount of $76,826.88, payable to one H. W. Persbacker. Persbacker and his wife endorsed the note to appellee, and on March 6, 1973, on appellee's direction, the Prothonotary of Lackawanna County confessed judgment on the note, as he was empowered to do under the Act of February 24, 1806, P.L. 334, 4 Sm.L. 270, § 28, 12 P.S. § 739. On January 14, 1974, appellee commenced a proceeding to revive the confessed judgment. On February 1, 1974, the Sheriff of Lackawanna County served a copy of the suit on Richard and John Edwards, endorsed with notice to plead. The Edwardses did not plead, and on February 24, 1974, on appellee's praecipe, the Prothonotary entered judgment of revival in the amount of $69,192.02 (credit being given for payments made). In
[ 247 Pa. Super. Page 234]
March of 1974, Richard Edwards died, and John Edwards became executor of his estate. On December 23, 1974, appellee obtained a rule on John Edwards to show cause why appellee should not be permitted to execute on the revived judgment against the assets of Richard Edwards's estate. On January 20, 1975 John Edwards, individually and as executor of the estate of Richard Edwards, filed a petition to strike, or in the alternative, to open.
The lower court in its opinion summarized the issues raised by the petition as follows:
Defendants [appellants] assign as reasons to strike the judgment the following: (1) the warrant of attorney contained in the note was conditioned upon the existence of a default of payment which was not alleged; (2) the Prothonotary had authority to enter judgment limited by an application by a person being the original holder or assignee of such holder, whereas the praecipe directing entry of the judgment contained no identification of plaintiff as either; (3) the Prothonotary had authority to enter judgment limited to an amount, which from the face of the instrument, may appear due, whereas judgment was entered without a factual basis for determining the amount due; (4) the Prothonotary includes interest in the judgment entered, whereas interest was only due in the event of default which was not alleged; (5) the judgment was entered without the appearance of an attorney pursuant to express provisions in the note; (6) the failure to identify the plaintiff as either the payee, assignee or holder of the note, and (7) the failure to provide a statement or affidavit of default showing that defendants did not make an installment payment when due.
Defendants assign as reasons to open the judgment the fact that the installment payments are not reflected to limit judgment to the amount "remaining unpaid;" that interest was included without a statement of default as a condition for the payment of interest, and that there was a failure of consideration in that work for which the note was delivered was not properly completed.
[ 247 Pa. Super. Page 235]
Plaintiff's [appellee's] response to the defendants' petition is that the installment note on which judgment was entered provided for a release of errors in the entry of judgment, and further, that the revival proceedings mentioned above preclude the defendants' petition under the circumstances of this case. At the time of argument plaintiff's counsel admitted that the confessed judgment was wanting in several respects, but that the revival ...