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LAVERNE G. GITT v. RICHARD E. MYERS AND JEAN ANN MYERS (12/21/79)

filed: December 21, 1979.

LAVERNE G. GITT, EXECUTRIX OF THE ESTATE OF CHARLES M. GITT, DECEASED
v.
RICHARD E. MYERS AND JEAN ANN MYERS, APPELLANTS



COUNSEL

Morrison Williams, York, for appellants.

Timothy Paul Ruth, York, for appellee.

Wieand, Robinson, and Louik, JJ.*fn* Wieand, J., files a concurring statement. This decision was reached prior to the death of Robinson, J.

Author: Robinson

[ 273 Pa. Super. Page 313]

This is an appeal from the refusal of the lower court to open a judgment by confession entered upon a promissory note containing a cognovit clause against the appellants, Richard E. Myers and Jean Ann Myers, his wife. The note, in the amount of $10,749.00, was executed and delivered by appellants to the appellee, Laverne G. Gitt, Executrix of the Estate of Charles M. Gitt, deceased, on May 16, 1973 in payment for 3,580 shares of the capital stock of Color Systems, Incorporated, which had been sold and delivered by the appellee to appellants on May 14, 1973. The note was payable in twenty-four (24) successive monthly installments of $50.00 each and a final installment of $9,549.00. Appellants made installment payments of $250.00, but defaulted on the other payments. Judgment was entered on the note on May 24, 1973.

In order to successfully petition to open a confessed judgment, a defendant must act promptly and aver a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Greenwood v. Kadoich, 239 Pa. Super. 372, 357 A.2d 604 (1976); Cheltenham National Bank v. Snelling, 230 Pa. Super. 498, 326 A.2d 557 (1974).

The lower court held that the appellants could not prove the defense alleged by parol evidence and refused to open the judgment. We agree and affirm.

The appellants allege that the transaction was a sale and purchase of the stock, except that it was agreed that the source of the payments was to be from funds received by Richard E. Myers from Color Systems, Inc. because that was the only way Myers could get money and if Color Systems,

[ 273 Pa. Super. Page 314]

Inc. failed the stock was to be transferred back to the Estate of Charles M. Gitt and all payments would cease. The appellants allege that under the agreement no more payments are due on the note, that the stock should be returned to the Gitt Estate, and that the judgment is not a lien on appellants' property except the stock. They contend that the note on which the judgment was entered has terminated and that the rights of the parties have ceased, except the right of Gitt's Estate to get the stock back. The answer denied the allegations of the petition that any such contract was made and alleges specifically that no such contract was even discussed or entered into, and that the only contract was the promissory note on which the judgment was entered. The petition to open does not state whether the alleged agreement relied on by the petitioners was oral or written but it is apparent from appellants' depositions that it was not in writing.

It is well settled in this Commonwealth that the parol evidence rule applies to the obligations set forth in a promissory note. See Scott v. Bryn Mawr Arms, 454 Pa. 304, 312 A.2d 592 (1973); Dunn v. Orloff, 420 Pa. 492, 218 A.2d 314 (1966); United Refining Co. v. Jenkins, 410 Pa. 126, 189 A.2d 574 (1963); Speier v. Michelson, 303 Pa. 66, 154 A. 127 (1931); Manley v. Manley, 238 Pa. Super. 296, 357 A.2d 641 (1976). The promissory note in this case is clear, comprehensive and complete on its face. What was stated of the note in Speier v. Michelson, supra, 303 Pa. 60, 72, 154 A. 127, 128, describes the note upon which judgment was entered here: The note in suit presents an unqualified promise to pay to a designated person, at a particular time, a given amount of money. The contract is absolute and complete on its face, and sufficiently comprehensive to embody the aim and object of the parties. They selected a negotiable note as the means best adapted to express their respective relations to each other. When they did this, they intended it to embrace all the essential features that enter into such writing, otherwise they would have resorted to a different form of instrument."

[ 273 Pa. Super. Page 315]

It is the contract expressed by the promissory note on which judgment was entered here that is the agreement of the parties. The limitation or enlargement of any of its provisions by an alleged oral agreement which varies, modifies, or destroys the terms of the instrument is prohibited by the parol evidence rule. Second National Bank of Reading v. Yeager, 268 Pa. 167, 111 A. 159. The landmark decision in Pennsylvania on the parol evidence ...


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