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ESTELLE E. YOUNG AND BEVERLY J. RUANE v. VINCENT PILEGGI (01/28/83)

filed: January 28, 1983.

ESTELLE E. YOUNG AND BEVERLY J. RUANE, APPELLANTS,
v.
VINCENT PILEGGI



No. 1409 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2360 July Term, 1979

COUNSEL

Robert J. Donaghy, Philadelphia, for appellants.

John C. Keir, Philadelphia, for appellee.

Brosky, Wieand and Beck, JJ.

Author: Wieand

[ 309 Pa. Super. Page 567]

Vincent Pileggi executed and delivered to Estelle E. Young and Beverly J. Ruane a judgment note for $10,000.00. On July 16, 1979, after Pileggi had failed to make any payment thereon for more than 3 1/2 years, a judgment was confessed against him for the principal amount, plus interest and counsel fees. Pileggi filed a petition to open the judgment alleging (1) duress, (2) absence of consideration, and (3) failure to join Beverly J. Ruane, his former wife, as a party defendant. Depositions were taken, argument

[ 309 Pa. Super. Page 568]

    was held, and the trial court entered an order opening the judgment. This appeal followed. We conclude that opening the judgment was an abuse of discretion. Therefore, we reverse and reinstate the judgment.

In Tenreed Corporation v. Philadelphia Folding Box Company, 256 Pa. Super. 49, 53, 389 A.2d 594, 596-597 (1978), this Court said:

"It is now well-established that a petition to open a judgment by confession is an appeal to the sound discretion of the lower court. Foerst v. Rotkis, 244 Pa. Super. 447, 368 A.2d 805 (1976); Christie v. Open Pantry Food Marts, Inc., 237 Pa. Super. 243, 352 A.2d 165 (1975); Wolgin v. Mickman, 233 Pa. Super. 218, 335 A.2d 824 (1975). In order for such a petition to prevail, the judgment debtor must act promptly and produce evidence in support of a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Walnut-Juniper Co. v. McKee, Berger & Mansueto, Inc. 236 Pa. Super. 1, 344 A.2d 549 (1975); Joseph A. Puleo & Sons, Inc. v. Rossi, 234 Pa. Super. 612, 340 A.2d 557 (1975); Ritchey v. Mars, 227 Pa. Super. 33, 324 A.2d 513 (1974)."

The evidence concerning the defense must be such as would require submission of the issue to a jury. Pa.R.C.P. 2959(e). See also: Reliance Insurance Company v. Liberati, 489 Pa. 591, 414 A.2d 1049 (1980); Weitzman v. Ulan, 304 Pa. Super. 204, 212, 450 A.2d 173, 176 (1982); Citizens National Bank of Evans City v. E.H. Bilowich Construction Corporation, 303 Pa. Super. 193, 197, 449 A.2d 644, 646 (1982); First Pennsylvania Bank, N.A. v. Lehr, 293 Pa. Super. 189, 192, 438 A.2d 600, 602 (1981); Price v. Geller, 292 Pa. Super. 455, 458, 437 A.2d 763, 764 (1981); Lincoln Bank v. Kelly, 282 Pa. Super. 261, 268, 422 A.2d 1106, 1110 (1980).

In the instant case, there is no dispute about the timeliness of appellee's petition to open. The judgment was confessed on July 17, 1979, and a petition to open was filed on July 25, 1979. The issue, rather, is whether ...


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