No. 2665 October Term, 1978, Appeal from the Order entered by the Court of Common Pleas of Philadelphia County at No. 2696 January Term, 1975.
Michael Minkin, Philadelphia, for appellant.
Richard D. Malmed, Philadelphia, for appellee.
Price, Van der Voort and Wieand,*fn* JJ. Van der Voort, J., concurs in the result.
[ 277 Pa. Super. Page 137]
Germantown-Stevens Academy has appealed from an order which dismissed its petition to strike a judgment confessed against it by Centennial Bank.
The judgment was entered on January 20, 1975 and was based on two separate notes containing warrants to confess judgments in favor of appellee bank. The first note was in the amount of $10,000, was dated June 8, 1972, and was executed in the name of Germantown Lutheran Association, Inc. The second note was for $5,000, was dated July 6, 1973, and was executed by and on behalf of Germantown Lutheran Academy. Appellee's complaint, filed pursuant to Pa.R.C.P. No. 2951 (b), averred that Germantown Lutheran Academy had merged with the Stevens School on May 1, 1974 and thereafter was known as Germantown-Stevens Academy. The total amount of the judgment, including unpaid interest, was $23,826.09.
On March 9, 1978, a motion to strike the judgment was filed on the grounds that the earlier note for $10,000 had been executed by Germantown Lutheran Association, Inc., a separate entity, and not by appellant's immediate predecessor, Germantown Lutheran Academy. The complaint, it was alleged, failed to aver any relationship between Germantown Lutheran Association, Inc. and Germantown-Stevens Academy. Appellee bank filed an answer asserting that Germantown Lutheran Academy and Germantown Lutheran Association, Inc. were one and the same entity and requesting permission to file an amendment to the complaint which alleged that fact. Appellee's answer also averred that it had been prejudiced by appellant's delay in moving to strike the judgment. The lower court held that appellant had been guilty of laches and refused to strike the judgment.
A warrant of attorney to confess judgment must be self-sustaining. It must be in writing and must be signed by the person to be bound by it. It is not to be foisted upon anyone by implication or by a non-specific reference. Frantz Tractor Co., Inc. v. Wyoming Valley Nursery, 384 Pa. 213,
[ 277 Pa. Super. Page 138120]
A.2d 303 (1956); Solebury National Bank of New Hope v. Cairns, 252 Pa. Super. 45, 380 A.2d 1273 (1977). The entry of a valid judgment by confession can be accomplished only by strict adherence to the provisions of the warrant of attorney. Any doubt as to the validity of such a judgment must be resolved against the party entering the judgment. Scott Factors, Inc. v. Hartley, 425 Pa. 290, 293, 228 A.2d 887, 888 (1967); Florida Crab House, Inc. v. Hake, 259 Pa. Super. 230, 232, 393 A.2d 801, 803 (1978); Solebury National Bank of New Hope v. Cairns, supra, 252 Pa. Super. at 48, 380 A.2d at 1275.
Appellant argues with considerable merit that the instant record discloses the entry of a judgment against it which, at least in part, has not been authorized by its predecessor corporation. The warrant to confess judgment was executed by one corporation, but judgment appears to have been entered against another, unrelated entity. The record offers no explanation for this inconsistency.
It has been held that where a second corporation has become invested with the rights and has assumed the burdens of the first corporation, whether by means of charter amendment, merger, consolidation or duly authorized succession, the "successor" corporation stands in place of the first corporation and is bound by a warrant of attorney to confess judgment executed by said first corporation. Bankers Allied Mutual Insurance Company v. Lincoln Plan Corporation, 42 D. & C.2d 241 (Adams Co. 1966). See also and compare: Pittsburgh Terminal Coal Corporation v. Potts, 92 Pa. Super. 1 (1927). The fact of succession, however, must be set forth in the complaint filed under Pa.R.C.P. No. 2951(b) or otherwise appear ...