No. 435 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 78-25920
Robert E. Wayman, Pittsburgh, for appellants.
Michael E. Hill, Pittsburgh, for appellee.
Cavanaugh, Montgomery and Hoffman, JJ.
[ 284 Pa. Super. Page 146]
In this appeal Janet Dobkin, the appellant, contends that the lower court erred in denying her Petition to Strike and/or Open a Judgment. The judgment in issue was a confessed judgment entered against the Appellant and her former husband. He was not a party to the Petition filed in the lower court and is not a participant in this appeal. The lower court considered the Appellant's Petition, and an answer filed by the Appellee. Further, the court held a hearing on the issues raised, considered the transcripts of depositions that were taken, and received briefs from the parties. Subsequently, the court issued an opinion and an order denying Appellant's Petition.
[ 284 Pa. Super. Page 147]
The Appellant's Petition consolidated all of her arguments in support of her effort to either have the judgment stricken or opened. It is clear that a court acting in such circumstances must distinguish between the two remedies sought in the evaluation of the arguments presented. A petition or motion to strike is proper only when the defect in the original judgment appears on the face of the record. Northway Village No. 3, Inc. v. Northway Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968); Triangle Building Supplies and Lumber Co. v. Zerman, 242 Pa. Super. 315, 320, 363 A.2d 1287, 1289 (1976). If the alleged defect in the confessed judgment is based upon a matter dehors the record, the proper approach is to seek to have the court open the judgment. Prestressed Structures, Inc. v. Bargain City, U.S.A., 413 Pa. 262, 196 A.2d 338 (1964); J. F. Realty Co. v. Yerkes, 263 Pa. Super. 436, 398 A.2d 215 (1979). The decision of the lower court as to whether or not a judgment should be opened is to be based upon equitable considerations, and we will not disturb that decision absent a clear and manifest abuse of discretion. Foerst v. Rotkis, 244 Pa. Super. 447, 368 A.2d 805 (1976); Triangle Building Supplies and Lumber Co. v. Zerman, supra. However, a proceeding to strike off a judgment concerns itself with the regularities of the record and may not be based upon the equities of the situation. Century Credit Co. v. Jones, 196 Pa. Super. 210, 173 A.2d 768 (1961). Where a confessed judgment in the full amount of the note is authorized by its terms, and the payee strictly follows procedures which have been set forth in the note, correctly utilizing the authority it has been granted in the provisions of the note, a denial of a petition to strike will be affirmed. See First Pennsylvania Bank N.A. v. Weber, 240 Pa. Super. 593, 360 A.2d 715 (1976). In the case of a petition to open a judgment, Pa.R.C.P. 2959(e) provides, in pertinent part: "If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment." It is held that in order to be successful, the party seeking to open a judgment must act promptly and set forth a meritorious defense. Tenreed Corp. v. Page 148} Philadelphia Folding Box Co., 256 Pa. Super. 49, 389 A.2d 594 (1978).*fn1
With those concepts in mind, we must now review the facts established in the record. It shows that on October 4, 1978, the Appellant and her husband executed a judgment note to the Appellee, Equibank, N.A., in the amount of $25,000.00, plus interest, with payment due within the next 180 days. The October 4, 1978 note, as originally drawn, provided that it was payable on "April 1, 197 8." The loan documents signed by the Appellee contained that date, rather than 197 9 which was the correct due date. Thereafter, one of Appellee's employees noticed this typographical error and corrected it prior to giving the loan proceeds to Mr. Dobkin, who initialed the change.
A judgment lien against property owned by the Dobkins was the security for the loan. There was evidence that at the time of the loan, Equibank was aware that the Dobkins were separated and soon to be divorced, and also that the loan was primarily to benefit the husband. It was to serve as a so-called "swing" loan to allow him to finance the purchase of a home until he received proceeds of the planned sale of the former marital residence which he and the Appellant owned. The full proceeds of the loan were disbursed by a check from Appellee payable to the order of Appellant and her husband. The Appellant did not deny that she signed the judgment note and endorsed the check. However, it is clear from the record that Ronald Dobkin alone negotiated the loan and was informed by the Appellee that he would not receive the loan without his wife's signature, indicating her agreement to be bound with her husband on the loan. Mr. Dobkin visited the Appellant at her separate residence with all of the loan documents provided by Appellee, and secured her signature. At no time prior to her execution of the note did any Equibank representative explain to Appellant her duties or rights in regard to the terms therein. Appellant and her then husband Ronald Dobkin endorsed the check for $25,000.00 received from the
[ 284 Pa. Super. Page 149]
Appellee, and the husband deposited it in his own bank account.
On November 1, 1978, one month after execution of the note, Equibank filed its Complaint in Confession of Judgment pursuant to the terms of the note, which authorized confession of judgment without default, pursuant to a warrant of attorney.*fn2 Judgment was entered against Appellant and Ronald Dobkin for $28,750.00, the face amount plus attorney's fees. A notice of the entry of judgment was mailed to the former marital home, which was no longer the residence of the Appellant. On January 30, 1979 Appellant and Ronald Dobkin were divorced. Appellant first learned of the entry of judgment against her on June 5, 1979. She filed her ...