Arthur H. Stroyd, Jr., Pittsburgh, for appellant.
Samuel J. Goldstein, Pittsburgh, for appellee.
Hester, Montgomery and Lipez, JJ.
[ 281 Pa. Super. Page 157]
The appellant, Richard F. Cody, on April 25, 1958 executed a $10,000 note with a confession of judgment clause, due one year after date, to appellee Ernest J. Nigrelli. In 1977 Nigrelli filed a complaint in confession of judgment, and obtained a judgment for $21,700, including the $10,000 face amount and $11,700 interest. Cody petitioned the court to open or strike the confessed judgment, alleging several defenses. The court below issued a rule on Nigrelli to show cause why the judgment should not be opened or stricken.
Cody took Nigrelli's deposition in order to provide evidence in support of his defenses. Nigrelli refused to answer certain questions relating to whether he had made demand for payment of the note, and whether he had received payment for the note through an arrangement whereby he received regular checks from one of Cody's business ventures, Sunset Memorial Parks, Inc. Cody filed a motion to compel Nigrelli to answer the questions. The administrative judge of the court below entered the following order:
[ 281 Pa. Super. Page 158]
"AND NOW, to wit, this 5th day of October, 1978, it is hereby
Ordered, ADJUDGED and DECREED
that any further testimony by deposition must be taken within fifteen (15) days of this Order, and the interrogation shall be confined to the judgment which is the subject of this case."
On October 20, 1978, Cody again took Nigrelli's deposition, but Nigrelli refused to answer the same questions. Cody filed a "DEFENDANT'S MOTION TO OPEN JUDGMENT AND TO COMPEL DEPOSITION TESTIMONY," contending in the alternative that Nigrelli's refusal to answer these questions constituted sufficient grounds to open the judgment, or that Nigrelli should be ordered to respond to the questions. In support of the motion, Cody attached his own affidavit describing how he hoped to supply evidence for his defenses through the answers to these questions. During the following weeks, Cody's counsel also filed with the court below the two incomplete Nigrelli depositions, the deposition of another witness, an affidavit by the bookkeeper for Sunset Memorial Parks, Inc. during the period 1958-60, and a letter from a certified questioned document examiner, stating his opinion that the word "(SEAL)" had been typed onto the judgment note after it had been signed by Cody.
After these documents, the next item appearing in the record is the following order signed by the administrative judge:
"AND NOW, to wit, this 13th day of March, 1979, it appearing that affidavits are not admissible as deposition testimony by virtue of Rule 2959(c) for the purpose of determining whether a Rule to Show Cause whether a judgment should be opened and/or stricken should be made absolute or ...