No. 1164 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 78-0625.
John M. Silvestri, Pittsburgh, for appellants.
Thomas J. Jackson, Pittsburgh, for appellee.
Cercone, President Judge, and Brosky and Hoffman, JJ.
[ 291 Pa. Super. Page 397]
Appellants contend that the lower court abused its discretion in denying their petition to open a judgment confessed upon a mortgage note. We disagree and, accordingly, affirm the order of the court below.
On January 4, 1966, appellants borrowed $570,000 from appellee's predecessor in interest to finance a bowling alley
[ 291 Pa. Super. Page 398]
and restaurant and signed a mortgage note containing standard acceleration and confession of judgment clauses. Four years later, on October 2, 1970, appellants went into a prolonged receivership. During the receivership appellee unsuccessfully attempted to collect its mortgage. On January 19, 1976, appellee accelerated the balance due on the mortgage, demanded full payment, and refused to accept any lesser amounts in accord and satisfaction. Nine months later, in March, 1977, a fire partially destroyed the mortgaged premises. The insurer, suspecting arson by appellants, refused to pay any claim on behalf of the parties or the receiver. On July 1, 1977, the receivership terminated without prejudice to appellee's efforts to collect the indebtedness. On November 18, 1977, appellants filed suit against the insurer and appellee, alleging that both had defamed appellants by inducing an arson investigation and that both had breached contractual duties to insure the mortgaged premises. On January 10, 1978, appellee confessed the judgment which has prompted this appeal.
Appellants timely filed a petition to strike or open the judgment, alleging that such relief was justified for a number of reasons. On April 18, 1979, the lower court, reserving the petition to open, denied the petition to strike. This court affirmed in an unpublished opinion. Bell Federal Savings & Loan Association of Bellevue v. Lanes, 271 Pa. Super. 593, 419 A.2d 185 (1979). Subsequently, the lower court denied appellants' petition to open the judgment. This appeal followed.
To open a confessed judgment, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. First National Bank of Pennsylvania v. Cole, 291 Pa. Super. 391, 393, 435 A.2d 1283, 1284 (1981); Fidelity Bank v. Act of America, Inc., 258 Pa. Super. 261, 392 A.2d 784 (1978); Pa.R.Civ.P. 2959. "[E]quitable considerations are generally no longer relevant" unless related to a particular defense asserted. Kardos v. Morris, 470 Pa. 337, 341, 368 A.2d 657, 660 (1977). The petitioning party has the
[ 291 Pa. Super. Page 399]
burden of producing sufficient evidence to substantiate its alleged defenses. See Pa.R.Civ.P. 2959(e); America Corp. v. Cascerceri, 255 Pa. Super. 574, 580 n.6, 389 A.2d 126, 129 n.6 (1978); Instapak Corp. v. S. Weisbrod Lamp & Shade Co., 248 Pa. Super. 176, 181, 374 A.2d 1376, 1381 (1977). The defenses asserted must be "valid." Kardos v. Morris, supra, 470 Pa. at 341, 368 A.2d at 660; Fidelity Bank v. Act of America, Inc., supra, 258 Pa. Super. at 264, 392 A.2d at 785; First Pennsylvania Bank N. A. v. Weber, 240 Pa. Super. 593, 603, 360 A.2d 715, 721 (1976). For the reasons that follow, we ...