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ALL AMERICAN HOMES v. ALBERT J. VASKO (02/05/82)

February 5, 1982

ALL AMERICAN HOMES, INC.
v.
ALBERT J. VASKO, APPELLANT



No. 495 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Pike County, No. 68 Nov. Term, 1977.

Before Hester, Cavanaugh and Van Der Voort, JJ. Cavanaugh, J., files a Memorandum Dissenting Statement.

MEMORANDUM

Presently before the court is appellant's appeal from the order of the lower court dated January 29, 1980, denying his petition to open a confessed judgment.

The relevant facts may briefly be summarized as follows: The parties entered into a building contract on March 5, 1977 for the construction of a home on appellant's property located in Pike County, Pennsylvania. The residence was allegedly completed and delivered to the appellant on October 14, 1977, at which time, following inspection (T.94a), appellant executed a Closing Statement and completed a "Punch List" wherein he scheduled eleven (11) items needing either repair or completion (the Closing Statement appears as Exhibit "A" and the Punch List appears as Exhibit "G" appended to appellant's petition to open).

On November 7, 1977, appellant executed a promissory note in favor of the appellee in the total amount of $8,361.60 (representing a $7,000 balance and interest at the rate of 9% in the sum of $1,361.60). Pursuant to the confession of judgment provisions contained therein, the note was recorded and indexed in the Pike County Prothonotary's Office on December 5, 1977.

On December 8, 1978, appellant filed a petition to open judgment alleging that (1) during the course of construction, appellee performed unauthorized "extra work" (exhibits "C", "D" and "E") for which the appellant was charged; (2) that in consideration of the execution of the promissory note on November 7, 1977, appellee's agent agreed to complete and/or correct within a reasonable time, the eleven (11) items which appellant listed on the Punch List, which appellee has failed to do; (3) that following the closing on October 14, 1977, appellant subsequently discovered additional construction defects; and (4) appellee committed certain violations of the Unfair Trade Practices and Consumer Protection Act. A rule issued; appellee filed its answer and new matter, to which appellant filed his reply. Following a hearing on October 15, 1979, the lower court issued its order dated January 29, 1980, denying appellant's petition to open confessed judgment. Hence, this appeal.

We affirm.

Our scope of review on appeal from either the opening or the denial of opening a judgment taken by confession has been clearly delineated over numerous years. We reiterate as we have done on numerous occasions, our scope of review on appeals from the lower court's grant or denial of a petition to open judgment is very narrow. A petition to open judgment is first an appeal to the equitable and discretionary powers of the lower court and as such, the exercise of the lower court's discretion in either opening or refusing to open a judgment taken by confession, will not be disturbed on appeal unless the lower court has committed a manifest abuse of discretion or an error of law. M. H. Davis Estate Oil v. Sure Way Oil, Pa. Super. , 403 A.2d 95 (1979); Fidelity Bank v. Act of America, Inc., Pa. Super. , 392 A.2d 784 (1978); Christie v. Open Pantry Marts, 237 Pa. Super. 243, 352 A.2d 165 (1975).

It is well settled that "(o)ne who petitions to open a confessed judgment must act promptly and aver a meritorious defense," Wenger v. Ziegler, 424 Pa. 268, 272, 226 A.2d 653 (1967). The court below concluded that the prompt filing requirement was excused. Since this issue was not preserved on appeal, we will not address ourselves thereto; thus the sole issue is whether appellant set forth a meritorious defense.

The standard to be applied by a court in determining whether a moving party has properly averred a meritorious defense so as to require that a confessed judgment be opened and the moving party let into a defense is succinctly set forth at Pa. R.C.P. 2959(e) effective December 1, 1973, which provides in relevant part:

"... If evidence is produced which in a jury trial would require the issues to be submitted to a jury the court shall open the judgment." (Emphasis added).

Moreover, in testing the sufficiency of the evidence, the facts as alleged must be viewed by the court in the exercise of its discretion in the light most favorable to the moving party (the appellant herein) and further, the lower court must accept as true all evidence and reasonable and proper inferences flowing therefrom. (Emphasis added). Greenwood v. Kadoich, 239 Pa. Super. 372, 357 A.2d 604 (1976); M. H. Davis Estate Oil v. Sure Way Oil, supra. As Judge Van der Voort of our court in M. H. Davis Estate Oil v. Sure Way Oil, supra, declared:

"... the test in evaluating the petitioners' evidence is not whether the evidence will probably win a verdict from the jury, but only whether there is sufficient evidence to allow the disputed issue to go to the jury."

The sole issue, therefore, is whether the lower court abused its discretion or committed an error of law when it found that appellant ...


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