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PROVCO LEASING CORPORATION v. MICHAEL SAFIN (04/20/79)

decided: April 20, 1979.

PROVCO LEASING CORPORATION, A PENNSYLVANIA CORPORATION,
v.
MICHAEL SAFIN, JR., INDIVIDUALLY AND T/A POCONO SANITARY REFUSE, APPELLANT



No. 1589 October Term, 1977, Appeal from Order of the Court of Common Pleas of Monroe County, Civil Action-Law, at No. 361 April Term, 1976.

COUNSEL

Edwin Krawitz, East Stroudsburg, for appellant.

George W. Westervelt, Jr., Stroudsburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 265 Pa. Super. Page 424]

On April 1, 1975, the parties entered into a lease wherein appellee, Provco Leasing Corporation leased to the appellant, Michael Safin, Jr. several refuse containers and compactors to be used in appellant's refuse business. On the same day, appellant signed an "Acceptance Notice" certifying that he had received, inspected and accepted the equipment. The lease provided for payments of $512.52 per month extending over 60 months. Within several months, appellant became dissatisfied with the condition of the equipment. After making payments of $2,050.08, appellant orally notified the lessor that he refused to continue payments until the lessor repaired the equipment despite the contract provision placing the responsibility for repair upon appellant as the lessee.

[ 265 Pa. Super. Page 425]

Appellant was notified in October that lessor would not repair the equipment and that the equipment would be repossessed if payments were not forthcoming. In November of 1975, the lessor repossessed the equipment and sold it pursuant to the lease provision dealing with default. Also pursuant to the lease, the total rental payments of $30,751.20 were accelerated.*fn1 Appellant's account was credited with the proceeds from the sale of the equipment in the amount of $7,800.00 and the $2,050.08 previously paid and charged with the cost of repossession of $3,978.99 and an attorney's commission of $4,478.42 leaving an amount due and owing of $29,358.53. On May 20, 1976, the lessor confessed judgment for this amount under a warrant of attorney contained in the lease agreement.

In the complaint, lessor had inadvertently failed to attach the photocopy of the second side of the lease due to a clerical error in lessor's corporate offices. On June 8, 1976, appellant filed a motion to set aside the confessed judgment attacking, inter alia, the sufficiency of the "photostatic copy" of the lease agreement supporting the judgment. On the same day, the trial court issued a rule to show cause why the validity of the judgment should not be inquired into and the judgment set aside. On February 22, 1977, the lessor filed a petition for leave to amend the complaint so as to include the inadvertently omitted second page of the lease, a copy of which was attached to the petition to amend and served upon the appellant. Appellant was then granted 20 days in which to raise additional grounds of defense in the event that the court would permit the inclusion of the second page of the lease. Pursuant to this grant, appellant

[ 265 Pa. Super. Page 426]

    filed a second petition to strike the judgment wherein he asserted new defenses based upon the second page of the lease. On April 11, 1977, the Court of Common Pleas granted lessor's motion to amend the complaint by including the second page of the lease subject to proper verification. The trial court then went on to decide the case in favor of the lessor based upon the entire lease addressing itself at length to issues raised in both of appellant's petitions. The second page was formally verified on April 28, 1977, 17 days after the entry of judgment for the lessor. This appeal followed.

Appellant first contends that his defenses to the confession of judgment were prejudiced by the fact that the trial court based its decision on an amended exhibit, i. e., the second page of the lease, prior to the time that the amendment was made part of the official record. We find no prejudice in this situation. The amendment was properly in the record at the time of the decision subject only to verification under Pa.R.C.P. 1024. The fact that the actual verification was not entered until 17 days after the opinion was handed down is a purely technical objection which lacks merit in this case since no prejudice resulted therefrom to any of appellant's substantive defenses. Rule 126 of the Pa.R.C.P. provides:

"The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of ...


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