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TONY PALERMO CONSTRUCTION v. SAMUEL P. BROWN AND RHONA E. BROWN (04/27/84)

decided: April 27, 1984.

TONY PALERMO CONSTRUCTION
v.
SAMUEL P. BROWN AND RHONA E. BROWN, HIS WIFE, APPELLANTS



No. 401 Pittsburgh 1983, Appeal from the Order of February 25, 1983, Court of Common Pleas, Erie County, Civil No. DSB 2766J 1974 revived at 2342A 1979.

COUNSEL

Michael T. Joyce, North East, for appellants.

Robert J. Kelleher, Erie, for appellee.

Cavanaugh, Johnson and Montgomery, JJ.

Author: Johnson

[ 326 Pa. Super. Page 567]

This appeal is brought from an order denying a petition to open a confessed judgment. The judgment had been filed on June 10, 1974 against both appellants, based upon an installment judgment note dated May 4, 1973 in the total sum of $15,999.60. The note provided for monthly payments

[ 326 Pa. Super. Page 568]

    of $133.33 over a ten year period, which payments were subject to the terms of a home improvement installment contract.

After filing the judgment note of record, the plaintiff, Tony Palermo Construction (Appellee), took no further action. On November 8, 1977, the defendants (Appellants) filed their petition to open the judgment. The petition contained the following averments, properly verified by Appellants' counsel:

3. Your Petitioners have a meritorious defense to the claim, to-wit:

That Plaintiff did not perform any work under the Home Improvement Installment Contract and therefore cannot claim judgment upon a Note made subject to said contract.

4. Opening the judgment will not in any way prejudice the claim of the Plaintiff, who has done nothing but confess judgment on a Note.

At no time since the issuance of the rule to show cause on November 9, 1977 has the Appellee filed any answer or response to the allegation that Appellee did not perform any work under the home improvement contract or that opening the judgment would not in any way prejudice its claim.*fn1 Although the trial court issued the rule to be "returnable at the next call of the argument ...


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