No. 00361 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 80-18430.
Before Brosky, Olszewski and Johnson, JJ.
I respectfully dissent. I would affirm the trial court's order granting the Center's petition to open judgment because I believe that the defense asserted by the Center falls within the exception to the general rule that an unliquidated counterclaim is not grounds for opening a judgment. That is, I believe that the subject matter of the defense asserted by the Center is attached to the consideration on which the judgment rests.
As the majority explains the April 18 order provided the basis for the judgment. Attached to that order and made a part of it was a letter written by counsel for the Center to counsel for M.N.C. Unlike the majority, I interpret that letter as stating that the judgment note for $15,000 was given in consideration for the permanent improvements made by M.N.C.
The first paragraph of the letter is as follows:
In connection with the settlement agreed upon in Chambers, whereby it was agreed that your client, M.N.C. Corporation, would forthwith vacate the storeroom premises of the building owned by Mt. Lebanon Medical Center, Inc., situate at 370 Castle Shannon Boulevard, Mt. Lebanon Township, Allegheny County, Pennsylvania, our client, Mt. Lebanon Medical Center, Inc., Intervenor, would deliver to your client, M.N.C. Corporation, a judgment note in the sum of $15,000.00 payable on or before three months from the date thereof with interest at 6% representing the agreed value of permanent improvements made to the premises by your client. (emphasis added)
The Center's proffered defense, that the permanent improvements had been removed from the premises, seems to me to be clearly attached to the consideration on which the judgment rests. The consideration may have included M.N.C.'s agreement to settle and discontinue its action, but it also included the permanent improvements made to the property by M.N.C.
In this respect the present case differs from Bell Federal Savings and Loan Association of Bellevue v. Laura Lanes, Inc., Pa. Super. , 435 A.2d 1285 (1981) in which the appellant sought to open a judgment based on the possibility of another unrelated judgment being entered.
Nor do I agree that the present situation is similar to that found in Weitzman v. Ulan, Pa. Super. , 450 A.2d 173 (1982) in which the defense asserted by the appellants was based on an alleged oral modification of a lease which provided that any alteration of its terms was to be in writing.
On the contrary, the defense asserted by the appellee before us is based on the written terms of a letter made part of the order on which the judgment rests. The order of the lower court opening the judgment and permitting the Center to present a defense should be affirmed.