No. 586 Pittsburgh, 1981, Appeal from the Order dated May 13, 1981, Court of Common Pleas, Clarion County, Civil Action, Law, at No. 851 of 1979.
Alfred H. Lander, Clarion, for appellant.
John H. Drayer, Clarion, for appellee.
Spaeth, Johnson and Hoffman, JJ.
[ 311 Pa. Super. Page 430]
Appellant Edward G. Kriebel appeals the Order of the trial court affirming its Order of December 22, 1980 and refusing Appellant's Petition for Reconsideration and/or Rehearing.
On January 21, 1974 a promissory note in the amount of $105,000 was executed and made payable to Appellee Bank by L & E Inc. The note was signed by: (1) Appellant, in his capacity as President of L & E Inc., (2) Donald W. Deitz, in his capacity as Secretary and Treasurer of L & E Inc., (3) Fred B. Hawk, individually and (4) Appellant, individually. The pleadings and deposition of Appellant indicate that Appellant and Fred B. Hawk signed in their individual capacities as accommodation parties. The note contained a warrant of attorney authorizing entry of judgment by confession.
[ 311 Pa. Super. Page 431]
On June 13, 1979 written demand was made upon Appellant and Fred B. Hawk for the amount due on the note. The Bank confessed judgment on the note in the amount of $13,500 on September 25, 1979 against Appellant only, pursuant to the warrant of attorney contained in the note.
Appellant's Petition to Strike and/or Open Judgment and Stay Proceedings, filed October 30, 1979, was denied by the trial court on December 22, 1980. Appellant's Reconsideration petition was then denied on May 13, 1981 and this appeal followed.
Appellant raises five issues on appeal: (1) whether Appellee Bank conformed to law by confessing judgment against Appellant and not including the other parties who had executed the note, (2) whether the death of Fred B. Hawk, the other accommodation party, revoked the warrant of attorney in the note as to the surviving obligors, (3) whether Appellant presented sufficient evidence to support a meritorious defense to the judgment justifying its opening, (4) whether Appellee Bank's defense of the statute of limitations to Appellant's claim of set off is meritorious and (5) whether Appellee Bank's defense of negligence to Appellant's claim of misconduct was proper.
We note initially that a petition to open a judgment is an appeal to the equitable and discretionary powers of the trial court. First Pennsylvania Bank, N.A. v. Lehr, 293 Pa. Super. 189, 438 A.2d 600 (1981); Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa. Super. 499, 428 A.2d 156 (1981). The facts as alleged must be viewed by the court in the exercise of its discretion in the light most favorable to the moving party and the court must accept as true all ...