No. 24 W.D. Appeal Dkt. 1982, Appeal from the Order of the Superior Court of Pennsylvania, at No. 477, Pittsburgh, 1980, Affirming the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, No. GD 79-4797
Leonard M. Mendelson, Hollinshead & Mendelson, S. Michael Streib, Pittsburgh, for appellants.
Maurice A. Nernberg, Nernberg & Laffey, Pittsburgh, for appellee.
O'Brien, C.j., and Roberts, Nix, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., did not participate in the consideration or decision of this case. Nix, J., files a dissenting opinion in which McDermott, J., joins. McDermott, J., files a dissenting opinion in which Nix, J., joins.
Appellants, Joseph T. and Dorothy K. Smallhoover, appeal by allowance from an order of the Superior Court affirming an order of the Court of Common Pleas of Allegheny County which struck from the record "satisfaction" of a judgment, against appellants, in favor of appellee, Hazelwood Lumber Company, Inc. The order appealed from was based upon the old common law rule that payment of a sum less than the face amount of a liquidated debt presently due lacks the consideration necessary to support a binding accord and
satisfaction. We hold that rule inapplicable where a creditor "satisfies" a judgment on the record, and therefore, reverse. 296 Pa. Super. 614, 441 A.2d 440.
In 1969, appellee Hazelwood Lumber Company, Inc. (hereafter referred to as Hazelwood) obtained a judgment by confession against Joseph T. and Dorothy K. Smallhoover (hereafter referred to as Smallhoover) in the amount of $98,257.66. Thereafter, Smallhoover made payments on the judgment until 1974, when the judgment was revived in the amount of $72,372.65.
The debt and subsequent judgment arose from purchases, during the period 1954 to 1971, which Smallhoover had made for J. T. Smallhoover, Inc. from Hazelwood.*fn1 Hazelwood was then owned by Roger Cunningham and members of his family. Cunningham advised Smallhoover, during this time, that Harry E. Walk, president of Hazelwood, had full authority to act for the corporation.*fn2 Consequently, from 1954 until 1971, Smallhoover dealt with Hazelwood through Walk.
In May, 1976 Walk contacted Smallhoover and stated the "Cunningham boys" were concerned about the judgment and willing to settle the debt for $15,000.*fn3 Smallhoover, assuming Walk was still in the employ of Hazelwood, agreed to do so and, with borrowed money made three payments totaling $15,000, by checks on August 15, 1976, January 17, 1977, and April 11, 1977.*fn4 At Walk's direction, Smallhoover
gave the last check to Lawrence May. May had been the attorney of record for Hazelwood in matters involving the Smallhoover judgment, including the 1974 revival, but had also served Walk as his attorney. Upon receipt of the check, May filed a praecipe ...