No. 1717 October Term, 1979, Appeal from the Order of the Court of Common Please of Philadelphia County, Civil Division, at No. 5646 February Term, 1979
Malcolm H. Waldron, Jr., Philadelphia, for appellant.
E. Harris Baum, Philadelphia, for Corson's, appellee.
Arthur S. Salus, Philadelphia, for Continental, appellee.
Spaeth, Brosky and Hoffman, JJ. Spaeth and Hoffman, JJ., concur in the result.
[ 290 Pa. Super. Page 530]
Perle Corson has appealed from the order entered by the court below opening the judgment by confession obtained by her against appellee in the amount of $4,200. The matter was heard on the petition to open judgment, appellant's answer and new matter, and appellee's reply to new matter. No depositions were taken. The central issue for our determination is whether the court below abused its discretion in opening the judgment. The court opened the judgment on the ground that appellee had produced sufficient evidence to justify submission of the case to a jury. We reverse.
Appellant argues that the lower court erred in opening the judgment on two grounds: first, that it should not have considered the matter on the basis of the pleadings alone because they contained disputed issues of fact and thus appellee should have, but did not, support its petition by depositions pursuant to Pa.R.C.P. 209; and second, that appellee's petition does not show a meritorious defense.
The facts are as follows. Appellee leased premises from appellant for a monthly rental of $4,000, under a written lease.*fn1
[ 290 Pa. Super. Page 531]
By letter dated February 23, 1979, appellee exercised its right to terminate the lease as of March 31, 1979.*fn2 In the letter, counsel for appellee also stated:
In addition, Pennamco is holding in escrow taxes in the amount of $5,059.09. We are authorizing them to forward to you a check in the amount of $4,000 from this escrow account to be used as payment for the last month's rental and are requesting them to return the amount of $1,059.09.
Appellant did not reply to the proposal set forth in the letter with regard to payment of March's rental from the escrowed tax funds, and on March 2, 1979, brought suit to ...