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ESTATE ROMANO SILVESTRI v. RONALD KINEST AND ASA KINEST (08/12/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 12, 1983.

ESTATE OF ROMANO SILVESTRI
v.
RONALD KINEST AND ASA KINEST, APPELLANTS

No. 1579 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Division, at No. 82-0065-09-1.

COUNSEL

Francis G. Janson, Philadelphia, submitted a brief on behalf of appellants.

Joseph S. Britton, Bristol, for appellee.

Hester, Popovich and Hoffman, JJ.

Author: Hoffman

[ 318 Pa. Super. Page 16]

Appellant contends that the lower court erred in denying his petition to open a confessed judgment. He argues that his petition set forth a meritorious defense which gave rise to a jury issue, and that he properly preserved "a ground for relief by first raising it generally in his petition, then specifically in a subsequent memorandum of law." We disagree and, accordingly, affirm the order of the lower court.

In 1976, appellant and appellee entered into a lease agreement. On January 6, 1982, appellee filed a confessed judgment

[ 318 Pa. Super. Page 17]

    against appellant based upon the lease's warrant of attorney. Appellant filed a petition to open the confessed judgment, and appellee answered. Appellant then filed a memorandum of law that presented arguments in support of his petition. The lower court denied the petition, prompting this appeal.

Appellant's position is that the lower court incorrectly disallowed the defenses raised in his petition to open. The petition averred (1) a specific defense, that appellee failed to file an affidavit of appellant's income, and (2) a general defense, that appellee failed to comply with the "other laws of the Commonwealth of Pennsylvania."

Appellant contends first that he set forth in his petition a meritorious defense that gave rise to a jury issue. This contention lacks merit. One who petitions to open a confessed judgment must offer a meritorious defense. Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa. Superior Ct. 499, 428 A.2d 156 (1981). Opening a confessed judgment is within the discretion of the lower court and this discretion will not be disturbed on appeal absent a manifest abuse of discretion. Lincoln Bank v. Kelly, 282 Pa. Superior Ct. 261, 422 A.2d 1106 (1980). However, the court's discretion must be guided by Pa.R.Civ.P. 2959(e), requiring that "if evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment."

Appellant averred that appellee was not entitled to a confessed judgment having failed to file an affidavit alleging that appellant's income exceeded ten thousand dollars annually. Appellant's defense apparently was based on Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa. 1970), affirmed, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972); however, appellant misinterpreted this case. In Swarb, the court held that a Confession of Judgment against an individual having an annual income of less than ten thousand dollars is constitutionally impermissible unless it is shown that the individual gave an intelligent and voluntary waiver. Thus,

[ 318 Pa. Super. Page 18]

    and timely notice to opposing counsel when he pled the general defense, and thereby, he failed to preserve any of the specific defenses subsequently raised in the memorandum of law.

In conclusion, because appellant did not set forth a meritorious defense, the lower court did not abuse its discretion in refusing to open the judgment. Accordingly, we affirm the lower court's denial of appellant's petition to open.

Order affirmed.

19830812

© 1998 VersusLaw Inc.



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