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ERNEST STERN v. JODIE FEATHERS (02/10/82)

submitted: February 10, 1982.

ERNEST STERN
v.
JODIE FEATHERS, APPELLANT



No. 618 Pittsburgh, 1981, APPEAL FROM THE ORDER OF JUNE 4, 1981 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CIVIL ACTION, LAW, No. GD 81-06410

COUNSEL

Stanton D. Levenson, Pittsburgh, for appellant.

Charles M. Means, Pittsburgh, for appellee.

Brosky, Cirillo and Popovich, JJ.

Author: Cirillo

[ 307 Pa. Super. Page 434]

On March 16, 1981, Ernest Stern confessed judgment against Jodie Feathers for possession of a leasehold held by Feathers in Pittsburgh. On March 24, 1981, Feathers petitioned for rule to open, strike or vacate judgment and stay execution. A rule to show cause was issued by the trial court on that date. Feathers admits that she was in arrears to Stern for rent owing on a property which she rented from Stern pursuant to a lease agreement. She contends, however, that the agreement was modified orally and that she was fulfilling her obligations as modified. The lower court held on June 4, 1981 that Feathers had presented the court no meritorious defense and, as such, it discharged the rule and vacated the stay by Order dated June 4, 1981. This appeal followed.

Our scope of review on appeal is very limited. We will only reverse a lower court's decision not to open a judgment where that court abused its discretion. First Pennsylvania Bank, N.A. v. Lehr, 293 Pa. Super. 189, 438 A.2d 600 (1981). In Corson v. Corson's Inc., 290 Pa. Super. 528, 434 A.2d 1269 (1981), we said:

Pa.R.C.P. 2959(e) now provides that "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." "Thus, a court can no longer weigh the evidence in support of the defense, but must only determine whether there is sufficient evidence to allow the issue to go to the (sic) the jury." Wolgin v. Mickman, 233 Pa. Super. 218, 221-222,

[ 307 Pa. Super. Page 435335]

A.2d 824, 826 (1976). "Otherwise stated, the judgment should be opened where the evidence produced would be sufficient to prevent a directed verdict against [appellee]." Greenwood v. Kadoich, supra, 239 Pa. Super. [372] at 375, 357 A.2d [604] at 606.

The issue for our determination, therefore, is whether appellee has produced evidence sufficient to prevent a directed verdict from being granted against it.

Essentially, Feathers contends that in August of 1980 she and Stern agreed that she would pay her rent arrearages by specified installments. She asserts further that she paid Stern according to their agreed upon plan until December of 1980. The trial court held that the modification lacked specificity as to its terms and therefore that the modification was not proven. Thus, no issue of fact was required to be sent to the jury.

Appellant asserts that the following terms constituted a new agreement or modification of ...


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