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IRWIN STEIN T/A STONY CREEK ASSOCIATES v. PENNCREST CONSTRUCTION CORPORATION (08/29/80)

filed: August 29, 1980.

IRWIN STEIN T/A STONY CREEK ASSOCIATES
v.
PENNCREST CONSTRUCTION CORPORATION, JULIUS GOLDFARB AND VICTOR L. RENDIANA, JR., APPELLANTS



No. 3009 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Chester County, Civil Division, at No. BS 4383 of 1977.

COUNSEL

Michael D. Bull, Lancaster, for appellants.

George C. Zumbano, Paoli, for appellee.

Cercone, President Judge, and Watkins and Lipez, JJ.

Author: Cercone

[ 280 Pa. Super. Page 561]

This is an appeal from the order of the court below refusing to strike a confessed judgment. Finding no error of law, we affirm.

[ 280 Pa. Super. Page 562]

The record reveals that on December 14, 1977, pursuant to a warrant of attorney contained in a contractor's bond, judgment by confession was entered against defendants, Penncrest Construction Corp., Julius Goldfarb and Victor L. Rendiana, Jr., (hereinafter appellants) in the amount of $258,075.00. On December 21, 1977, appellants filed a petition to open and/or strike the confessed judgment. Appellee filed an answer to the petition and depositions were taken thereafter. The case was then assigned to the lower court for disposition on briefs. On November 13, 1978, the lower court opened the judgment pursuant to appellee's stipulation, but denied appellants' request to strike the judgment. This appeal, challenging the validity of the manner utilized to confess judgment, followed.

Rule 2951 of the Pennsylvania Rules of Civil Procedure recognizes two methods of confessing judgment for a sum of money. The first is accomplished by having the prothonotary enter judgment by confession without the agency of an attorney or any complaint.*fn1 The second way of proceeding, under Rule 2951(b), to confess judgment for a sum of money is to file a complaint with the prothonotary substantially in the form provided by Rule 2952. Rule 2952 lists what information the complaint shall contain. Instantly, judgment was confessed by the second method, namely, by complaint under Rule 2951(b).*fn2 When proceeding by complaint

[ 280 Pa. Super. Page 563]

    under Rule 2951(b), "the plaintiff shall file with the complaint a confession of judgment substantially in the form provided by Rule 2962." Pa.R.C.P. No. 2955(a). In addition, Rule 2955(b) states that "[t]he attorney for the plaintiff may sign the confession as attorney for the defendant unless an Act of Assembly or the instrument provides otherwise."

As previously indicated, this appeal calls into question the manner in which judgment was confessed against appellants. Although appellants raise no objection to the actual complaint filed against them by appellee, they contend that the judgment should be stricken because the confession of judgment referred to in Rule ...


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