Nos. 816 AND 817 OCTOBER TERM, 1978, Appeal from Order of Court of Common Pleas, Civil Action, Law, of Chester County, at Nos. 1137 & 1138, 1976.
William J. Litvin, West Chester, for appellant.
Lawrence A. Goldberg, West Chester, submitted a brief on behalf of all appellees.
Van der Voort, Wieand and Lipez, JJ.
[ 266 Pa. Super. Page 66]
These are appeals by a creditor from orders of the lower court, on petitions filed in two companion cases, opening judgments confessed against defendants and permitting defendants to defend.
The plaintiff in each case is a supplier to the corporate defendant, Sure Way Oil Co., Inc. at No. 816. The individual defendants at No. 817 are the President of Sure Way, his wife, and the secretary of Sure Way. Davis and Sure Way had done business with each other since October, 1972.
On May 4, 1976 Sure Way was indebted to Davis in the approximate sum of $33,000.00 on an open account. Barry L. Hadley, as President, and Luther Smith, as Secretary signed a corporate judgment note dated May 4, 1976 for $33,000.00 payable to M. H. Davis Estate Oil Co.
Barry L. Hadley, his wife Evelyn S. Hadley and Luther Smith signed individually a second judgment note dated May 4, 1976 for $33,000.00 payable to M. H. Davis Estate Oil Co.
On May 7, 1976 plaintiff filed a complaint on each of the notes and took confessed judgments, the first against defendant corporation and the second against the three individual defendants.
On July 7, 1976 defendants filed "Petition(s) for Relief from Judgment by Confession" (considered by the lower court as petitions to open judgment).
[ 266 Pa. Super. Page 67]
The petitions for relief recite that plaintiff represented that if the notes were signed, plaintiff would take them to its bank "and would obtain money for the Petitioners from said bank."; and that defendants executed the notes "based upon the aforesaid representations."
The petitions also recite that when the notes were executed the "demand date was excluded", meaning that the date of payment at the beginning of the note form was not filled in.
Petitioners then claimed (para. 6) that their signatures were "obtained through fraud and deceit by the creditor."
Plaintiff filed answers to the petitions, denying the representations; denying that the demand date was not filled in; and denying any fraud.
Defendants and plaintiff then took depositions in support of their respective positions; and on December 21, 1977 Judge Sugerman entered orders opening the judgments. From these orders plaintiff has filed these two appeals to this Court.
Judge Sugerman has filed a Memorandum Opinion which is very helpful to us in the consideration of these cases.
The lower court has stated correctly that a petition of this kind is an appeal to the court's equitable powers, and is addressed to the sound discretion of the court; Triangle Building Supplies and Lumber Co. v. Zerman, 242 Pa. Super. 315, 320, 363 A.2d 1287 (1976).*fn1
The court then stated correctly that Pa.R.C.P. No. 2959(e), as amended, states in pertinent part, that
". . . If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment."
As the lower court then pointed out, citing Greenwood v. Kadoich, 239 Pa. Super. 372, 357 A.2d 604 (1976), in testing the sufficiency of the evidence,
[ 266 Pa. Super. Page 68]
". . . the facts must be viewed in the light most favorable to [Petitioners] and we must accept as true all evidence and proper inferences therefrom supporting [Petitioner's] defense of fraud . . ." Greenwood, supra, 239 Pa. Super. 376, 357 A.2d 606. (Emphasis supplied).
Thus, the test in evaluating the petitioners' evidence is not whether the evidence will probably win a verdict from a jury, but only whether there is sufficient evidence to allow the disputed issue to go to the jury: Wolgin v. Mickman, 233 Pa. Super. 218, 335 A.2d 824 (1975).
In this present case, as in Greenwood, supra the essential issue is whether there was fraud on the part of plaintiffs inducing the execution of the judgment notes.
Greenwood, and many other cases, defines fraud as the misrepresentation of a material fact upon which the other party ...