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GERALD B. ALDERFER v. THOMAS A. PENDERGRAFT AND CYNTHIA S. PENDERGRAFT (02/03/82)

submitted: February 3, 1982.

GERALD B. ALDERFER, APPELLANT,
v.
THOMAS A. PENDERGRAFT AND CYNTHIA S. PENDERGRAFT



No. 1663 Philadelphia, 1981, Appeal from an Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 80 - 20594

COUNSEL

Marc D. Jonas, Lansdale, for appellant.

Thomas A. Pendergraft, appellee, in pro. per.

Wickersham, Rowley and McEwen, JJ.

Author: Rowley

[ 302 Pa. Super. Page 212]

This is an appeal from an order denying the relief requested by appellant in a petition for a hearing to frame a final decree in equity pursuant to Pa.R.C.P. 1511(b).

[ 302 Pa. Super. Page 213]

On November 21, 1980, appellant filed a complaint in equity against Thomas A. Pendergraft and his wife, Cynthia, appellees, for reformation of a judgment note executed by only Thomas Pendergraft. The note was executed on August 18, 1978 and judgment was confessed on the note on September 14, 1978. The note was given to secure a $2,000.00 loan appellant made to the Pendergrafts in connection with their purchase of real estate. Appellant averred in his complaint that it was agreed among the parties that Mrs. Pendergraft was also to sign the note, but the appellees "willingly, knowingly, and maliciously failed" to do so. Appellant requested the trial court to order that the original note be cancelled and direct both appellees to execute a new note containing the same terms.

The Pendergrafts failed to file either preliminary objections or an answer to the complaint. As a result, appellant caused a default judgment to be entered against appellees on January 21, 1981, after notice to appellees, pursuant to Pa.R.C.P. 1511(a).*fn1

On February 3, 1981, appellant, pursuant to Pa.R.C.P. 1511(b),*fn2 petitioned the trial court for a hearing to frame "an appropriate Final Decree". In the petition, however, appellant averred that he was "entitled to a decree reforming . . . the judgment" entered by confession against Mr. Pendergraft and also to reasonable counsel fees and costs. A hearing date was set by the court and the Pendergrafts were notified of the time and place for the hearing. Appellees failed to appear either in person or by counsel.

At the hearing, the trial judge directed appellant's counsel to make a "judgment search" against the Pendergrafts. The search turned up a $2,000.00 judgment entered against

[ 302 Pa. Super. Page 214]

    appellees on December 5, 1978, in favor of the Pennsylvania ...


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