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J. M. KORN & SON v. FLEET-AIR CORPORATION (06/11/82)

filed: June 11, 1982.

J. M. KORN & SON, INC., APPELLANT,
v.
FLEET-AIR CORPORATION, APPELLEE



No. 2119 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Lancaster County, No. 7439 of 1979.

COUNSEL

Jacques H. Geisenberger, Jr., Lancaster, for appellant.

John W. Beyer, Lancaster, for appellee.

Spaeth, Wieand and Johnson, JJ.

Author: Wieand

[ 300 Pa. Super. Page 460]

This is an appeal from an order opening a confessed judgment. The order which opened judgment contained two paragraphs. The first paragraph provided that at trial the issues would include "claims, defenses or counterclaims" alleged in defendant's petition to open the judgment. The second paragraph granted leave to the parties to amend their pleadings generally. We find the first part of the order to be correct; however, the second part, granting leave to amend, is improper. Therefore, we will affirm in part and reverse in part.

Fleet-Air Corporation, the appellee, is a manufacturer of children's shoes in Lancaster County. J. M. Korn & Son, Inc., the appellant, is an advertising agency, which developed various advertising programs for appellee. In July, 1979, appellee executed judgment notes in favor of appellant for the total sum of $285,022.21. On December 10, 1979, pursuant to warrants of attorney contained in those notes, appellant confessed judgment against appellee for the face amount of the notes. Appellee filed a timely petition to open the judgment, alleging defenses of partial payment, business duress, misrepresentation and breach of contract. An answer was filed conceding, inter alia, that payments had been made. The matter of an agreed order to open the judgment was discussed, but the parties were unable to agree upon the issues to be litigated. The trial court, therefore, issued the following order:

AND NOW, this 22nd day of August, 1980, in consideration of the foregoing, the Court orders that the confessed judgment entered against Defendant on December 11, 1979 be opened. The issues which may be presented at trial include not only the validity of the Judgment Notes but also any other claims, defenses or counterclaims arising out of the parties' contractual advertising arrangement.

The Court further grants the parties leave to amend their pleadings. Plaintiff may amend its Complaint to include any additional claims it may wish to assert within

[ 300 Pa. Super. Page 461]

    twenty (20) days of the date of this Order. Defendant will then file its Answer and any affirmative claims it may wish to present in accordance with the Rules of Civil Procedure.

On appeal from this order, appellant concedes that the judgment was properly opened because of payments made and because business duress, if proved, is a defense to the note. Appellant contends, however, that the trial court erred in defining the issues to be litigated at trial and in granting leave to amend the pleadings.*fn1

The issues which may be raised at trial upon the opening of a confessed judgment are determined by Pa.R.C.P. No. 2960, which ...


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