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PENN STATE MUTUAL INSURANCE COMPANY v. BURGLAR'S ENEMY (01/24/79)

decided: January 24, 1979.

PENN STATE MUTUAL INSURANCE COMPANY
v.
THE BURGLAR'S ENEMY, INC., BERNARD WEISS, JUDITH WEISS, THOMAS F. FRANKLIN, CORRINE FRANKLIN. APPEAL OF BERNARD WEISS AND JUDITH WEISS



No. 401 April Term 1978, Appeal from the Order dated November 1, 1977 Dismissing Appellants' Petition to Strike/Open Judgment in the Court of Common Pleas of Fayette County, Pennsylvania, at No. 326 March Term 1976

COUNSEL

Robert E. Tucker, Pittsburgh, for appellants.

Albert J. Strohecker, III, Harrisburg, for appellees.

John R. Orie, Jr., Pittsburgh, for amicus curiae Housing Authority of the City of Pittsburgh.

Van der Voort, Spaeth and Montgomery, JJ.

Author: Montgomery

[ 263 Pa. Super. Page 91]

This is an appeal by Bernard Weiss and Judith Weiss, his wife, two of the defendants, from an order denying their petition to strike or open a confessed judgment entered in Fayette County against them in plaintiff's favor on March 30, 1976. Plaintiff insurance company was dissolved on January 18, 1977, subsequent to the entry of the judgment, and its affairs turned over to the Insurance Commissioner of the Commonwealth of Pennsylvania.

The instrument by virtue of which the aforesaid judgment was entered is described as a "Special indemnifying agreement" being part of an "Application for Contractor's Bond" made by The Burglar's Enemy, Inc. (Burglar, Inc.) to Penn State Mutual Insurance Company (Penn State). Appellant Bernard Weiss was president of the applicant and Thomas P. Franklin its vice president. The "Special indemnifying agreement" was executed by Bernard Weiss and Judith Weiss, his wife, and Thomas P. Franklin and Corrine Franklin. This agreement read.

In consideration of Penn State Mutual Insurance Company of South Fork, Pennsylvania, executing the Bond(s) herein applied for, we the undersigned, hereby binding ourselves and each of us, over respective heirs, legal representatives, successors and assigns, jointly and severally, join in the foregoing agreements, and the undersigned if a corporation admits that it is financially interested in the performance of the obligation(s) which the bond(s) applied for are given to secure and asserts that it is legally and fully empowered to obligate itself hereby.

The application for the bond, of which a special section identified as a "Premium and Indemnifying Agreement" contained the confession of judgment clause with which we are concerned, was executed in the name of Burglar, Inc. by Bernard Weiss as president.

The bond in question was conditioned on the faithful performance by Burglar, Inc. of a contract it had entered

[ 263 Pa. Super. Page 92]

    into with the Housing Authority of the City of Pittsburgh (Housing) to install certain security equipment in the nature of closed circuit cameras, the ...


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