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HARRY S. AND CAROL ANN OWENS v. RUSSELL S. AND LETHA R. MCCURDY (03/10/82)

submitted: March 10, 1982.

HARRY S. AND CAROL ANN OWENS,
v.
RUSSELL S. AND LETHA R. MCCURDY, APPELLANTS



No. 2728 Philadelphia, 1981, APPEAL FROM THE ORDER OF SEPTEMBER 18, 1981 IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, CIVIL ACTION, LAW, NO. 81 Civil 3976

COUNSEL

Roger Mattes, Scranton, for appellants.

Joseph D. Paparelli, Scranton, for appellees.

Wickersham, Cirillo and Lipez, JJ.

Author: Cirillo

[ 304 Pa. Super. Page 511]

This is an appeal from an Order denying a petition to open or, in the alternative, strike a judgment by confession. Since the order was prematurely entered, we remand for further proceedings consistent with Pa.R.C.P. 209.

On June 24, 1981, Harry S. Owens and Carol Ann Owens, his wife, appellees, filed a complaint in confession against Russell S. McCurdy and Letha R. McCurdy, his wife, appellants, pursuant to Pa.R.C.P. 2951(b). Appellants, on July 15, 1981, filed a petition to open or, in the alternative, strike the confessed judgment, pursuant to Pa.R.C.P. 2959. The appellants alleged a meritorious defense of fraud in the inducement by incorporating into their petition to open the averments

[ 304 Pa. Super. Page 512]

    contained in their action at equity.*fn1 In his answer to the petition to open, the appellee denied the appellants' allegations and demanded strict proof thereof. The trial court at this point, and with nothing more before it than contradictory pleadings, refused to open the confessed judgment based solely upon the appellant's failure to establish that a meritorious defense existed. This was incorrect.

The trial court held that absent depositions and admissions, it was without sufficient evidence to support the opening of the confessed judgment. This lack of evidence rather than supporting the refusal to open the judgment, left the trial court with contradictory pleadings, which placed the trial judge in a position where he had no basis to accept one version in preference to the other. Instapak v. S. Weisbrod Lamp and Shade, 248 Pa. Super. 176, 374 A.2d 1376 (1977).

When the court determines that a respondent has effectively denied the material allegations in a petition to open a confessed judgment, as here, the petitioner must proffer clear and convincing evidence to substantiate his averments. Johnson v. Leffring, 211 Pa. Super. 84, 235 A.2d 435 (1967). The mechanism to compel said proof is provided for in Pa.R.C.P. 209, 42 Pa.C.S.A., which states:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on petition and answer (in which event all ...


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