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ARTHURS TRAVEL CENTER v. EUGENE J. ALTEN AND MARLENE K. ALTEN (08/03/79)

August 3, 1979

ARTHURS TRAVEL CENTER, INC.
v.
EUGENE J. ALTEN AND MARLENE K. ALTEN, H/W, APPELLANTS



No. 1854 October Term 1978, Appeal from Order of Common Pleas Court of Montgomery County, Civil Division - Law, No. 77-10318.

COUNSEL

Louis Podel, Philadelphia, for appellants.

Mark I. Slotkin, Philadelphia, for appellee.

Price, Spaeth and Watkins, JJ.

Author: Spaeth

[ 268 Pa. Super. Page 331]

This is an appeal from an order denying Eugene and Marlene Alten's petition to open a confessed judgment against them. The appeal is only by Marlene Alten.

On June 16, 1977, appellee confessed judgment against the Altens on the basis of a mortgage note executed in June 1974. The principal amount of the note was $60,000, and appellee alleged that no payments had been made on it. The only credit that appellee afforded the Altens was for $29,670,

[ 268 Pa. Super. Page 332]

    described as the "Net proceeds of sale of collateral." After interest and various costs, the judgment as entered was for $52,926.

On July 14, the Altens filed a petition to open and/or strike the judgment, alleging that "in full payment and satisfaction of this alleged debt, the property covered under a mortgage note was voluntarily conveyed to [appellee], said conveyance being made on the basis and complete understanding that the said transfer of title constituted payment in full of any obligation due and owing from your Petitioners to [appellee] herein." The petition also alleged two conflicts of interest: first, that the attorney listed in the confession judgment was associated with the attorney who represented petitioners at the time the property was conveyed; and second, that the latter attorney represented both parties when the mortgage note was executed. On August 5, appellee filed an answer to the petition. It denied that the parties had agreed that the conveyance would satisfy the underlying debt, and stated that "[o]n the contrary it is averred that the conveyance of the property covered under the mortgage note did not constitute payment in full of the obligation due and owing [appellee]." Appellee attached to the answer a copy of the deed accompanying the conveyance; it stated that the conveyance was subject to a pre-existing $50,000 mortgage and "(b) that certain mortgage in the face amount of $60,000 made by Eugene Jay Alten and Marlene Alten, his wife, to Arthurs Travel Center, Inc. dated June 11, 1974, recorded June 11, 1974 in Mortgage Book DCC 513, page 472; and it is intended that the lien of said mortgage dated June 11, 1974 shall remain in force and shall not merge into this Deed, but said mortgage shall remain in force as a lien against the premises described herein." Also attached to the answer was a "Form of Certification to be used as required by City of Philadelphia Real Estate Transfer Tax Ordinance," filed by an unidentified party and stating that the total consideration for the conveyance was $110,000, the assessed value of the property, $48,000, and the fair value, $90,000. The remaining paragraphs

[ 268 Pa. Super. Page 333]

    of the answer denied the petitioners' allegations of conflict of interest, stating that the petitioners consented to the representation of both parties by the same attorney.

On the same day the answer was filed, the lower court ordered the matter "on the Long Argument List after taking of depositions, if necessary, which are directed to be completed and filed within thirty (30) days of the date hereof, and the filing of a praecipe." No depositions were taken. In March, 1978, the court heard argument on the petition and answer and subsequently dismissed the petition. In its opinion the court stated that the Altens had not produced any evidence in support of their contention that the judgment should be opened; that the averments in their petition ...


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