Nos. 2309 and 2310 October Term, 1978 Appeal from the Order in the Court of Common Pleas of Lehigh County, Civil Action - Law, Nos. 77-7882 and 77-8230.
Anthony W. Novasitis, Jr., Philadelphia, for appellant.
Harry A. Dower, Allentown, for appellee.
Price, Watkins and Hoffman, JJ. Watkins, J., files a dissenting opinion.
[ 287 Pa. Super. Page 462]
This appeal is taken from an order in the trial court dismissing appellant's petitions to strike two judgments entered by confession. Finding one judgment to be invalid and the other to be excessive, we affirm in part and reverse in part.
On December 8, 1977, the Prothonotary of Lehigh County entered judgment in the amount of $306,365.50*fn1 against appellant in favor of appellee. Attached to the praecipe for confession of judgment were four promissory notes in the amount of $87,533.00 with one each maturing on December 28, 1977, 1978, 1979 and 1980. The notes specified that each was to be paid in four equal installments commencing on March 28 of the year in which the note was due.
On December 27, 1977, appellant filed a petition to open or strike the judgment, alleging numerous defects in the manner in which the December 8 judgment had been entered. In an attempt to correct several of the defects identified by appellant, appellee filed a complaint for confession of judgment on December 27, 1977, pursuant to Pa.R.C.P. No. 2951(b). Attached to this complaint were four additional
[ 287 Pa. Super. Page 463]
promissory notes, bearing the same dates, sums and terms of payment as the notes filed with the original confession of judgment on December 8, 1977.*fn2 A petition to open or strike this judgment was filed, the two cases were consolidated and execution was stayed pending resolution of appellant's petitions. Appellant now appeals from the order of the trial court refusing to strike the judgments, asserting numerous errors with respect to each judgment.
Appellant first contends, inter alia, that the judgment entered on December 8, 1977, was improper because the notes were subject to a condition precedent of default which was not ascertainable from the face of the instrument. In effecting confession of judgment appellee filed three sets of documents with the Prothonotary of Lehigh County: a praecipe directing entry of judgment pursuant to the Act of February 24, 1806, P.L. 334, 4 Sm.L. 270, § 28, 12 P.S. § 739; an affidavit of default; and a set of four promissory notes. Appellant contends that the prothonotary and the trial court erred in considering the affidavit of default in entering judgment and that because the default did not appear on the face of the instruments, the first judgment should have been stricken. We agree.
Generally, a warrant of attorney authorizing confession of judgment may be exercised at any time unless the warrant expressly limits the extent of the authority by, for example, subjecting the warrant to a condition precedent of default. See, e. g., Triangle Building Supplies & Lumber Co. v. Zerman, 242 Pa. Super. 315, 363 A.2d 1287 (1976). In the instant case, both parties readily concede that the notes were subject to such a condition precedent, as they provided that the warrant could be exercised only "after the above indebtedness becomes due."
Being subject to a condition precedent of default, we must resolve whether this condition ...