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CONTINENTAL BANK v. ROBERT I. TUTEUR (08/27/82)

filed: August 27, 1982.

CONTINENTAL BANK
v.
ROBERT I. TUTEUR, APPELLANT (NO. 762). CONTINENTAL BANK, APPELLANT (NO. 831), V. ROBERT I. TUTEUR



Nos. 762 & 831 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County at No. 1371 November Term 1980.

COUNSEL

Manya Kamerling, Philadelphia, for appellant (at No. 762) and for appellee (at No. 831).

James Golden, Philadelphia, for appellant (at No. 831) and for appellee (at No. 762).

Wickersham, Hoffman and Lipez, JJ.

Author: Wickersham

[ 303 Pa. Super. Page 490]

These appeals are taken from an order entered on March 3, 1981 by the Honorable Judith J. Jamison of the Philadelphia County Court of Common Pleas. The order denied Tuteur's motion to strike a judgment entered against him but granted his motion to open the judgment. Tuteur

[ 303 Pa. Super. Page 491]

    appeals the order denying his motion to strike the judgment and Continental Bank appeals the order opening the judgment.

Jurisdiction over this appeal is granted by Pa. R.A.P. 311, which governs interlocutory appeals as of right. Rule 311(a)(1) provides that an appeal may be taken as of right from an order opening a judgment (Continental Bank's appeal) or an order refusing to strike a judgment (Tuteur's appeal).

On January 9, 1979 Continental Bank entered a judgment by confession against Robert I. Tuteur in the Court of Common Pleas of Montgomery County. The judgment was confessed pursuant to a warrant of attorney in a note dated March 15, 1978 and was entered for $92,098.85, the $75,000.00 principal amount plus interest and attorney's fees. Ten days later Tuteur filed a petition to strike and/or open judgment in Montgomery County. His petition alleged that the note gave exclusive jurisdiction of all disputes concerning the note to the Philadelphia Court of Common Pleas and, therefore, that the Montgomery County Court of Common Pleas was without jurisdiction to enter judgment. The parties conducted depositions examining the circumstances surrounding the loan arrangement between the borrowers and Continental Bank.

The Honorable Vincent A. Cirillo, then a judge of the Montgomery County Court of Common Pleas, granted Tuteur's motion to strike the judgment and directed the matter transferred to the Prothonotary of Philadelphia County. Reproduced Record at 21a. Continental Bank filed a complaint in confession of judgment in Philadelphia on November 10, 1980. The complaint sought judgment for $123,795.63, consisting of the original principal amount plus additional accrued interest and attorney's fees. On December 10, 1980, Tuteur petitioned the Philadelphia Court of Common Pleas to strike or open the second judgment. Judge Jamison denied the petition to strike but did open the judgment. These appeals timely followed.

[ 303 Pa. Super. Page 492]

In September of 1977, Robert I. Tuteur was a partner in the law firm of Eilberg, Corson, Getson and Tuteur. The firm had recently moved into new offices and needed to make office improvements as well as purchase furnishings. Robert Mitchell, a commercial lending officer of Continental Bank, arranged a loan to finance renovation and furnishing of the new offices. On September 12, 1977 Tuteur and his partners ...


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