No. 361 Pittsburgh, 1982, Appeal from the Order of March 17, 1982, Court of Common Pleas, Allegheny County, Civil Division at No. GD 80-18430.
Rochelle S. Friedman, Pittsburgh, for appellant.
John B. Nicklas, Jr., Pittsburgh, for appellee.
Brosky, Olszewski and Johnson, JJ. Brosky, J., files a dissenting opinion.
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This appeal arises from the order of March 17, 1982 opening judgment and permitting appellees Mount Lebanon
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Medical Center, Inc. and William J. Bartram to enter a defense.
The factual and procedural history indicates that in 1978, M.N.C. Corporation (M.N.C.) entered into a lease agreement for use of a building owned by Mount Lebanon Medical Center, Inc. (Center)*fn1 and located in the municipality of Mount Lebanon. The municipality began issuing daily citations to M.N.C. for building code and zoning violations in February of 1979. M.N.C. then instituted an equity action against the municipality for injunctive relief. A preliminary settlement was reached on March 8, 1979. In December of 1979, the Center sought to intervene by petition, which was granted in March of 1980. The Center filed a cross-claim against M.N.C. and the municipality for damages and unpaid rent. Following dismissal of the municipality from the cross-claim, the Center and M.N.C. reached a final settlement as to both the original equity action and cross-claim on April 18, 1980.
By the terms of the settlement, the Center was to issue a note in the amount of $15,000 plus interest to M.N.C., payable within 90 days and immediately recordable. The Center was also to supply M.N.C. with a certificate of existing liens on the property and their value. M.N.C. was required to discontinue the prior action and provide the Center with access to the building.
M.N.C. duly recorded the note and judgment was entered on it on April 23, 1980. The premises in question were vacated by M.N.C. on May 5. Execution on the judgment was commenced by M.N.C. on July 30, following the due date on the note and failure of the Center to pay. The bank accounts of the Center and appellee Bartram were then garnished.
The Center's petition to open judgment was filed August 8, 1980. It alleged, inter alia, that M.N.C. had failed to comply with the April 18 order by (1) failing to remove its padlocks and deliver access, (2) failing to remove all personal
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property, and (3) unlawfully removing certain property. Also, the petition alleged that the note was issued to compensate M.N.C. for certain permanent improvements made to the premises leased and that the alleged unlawful removal of property by M.N.C. involved some of the improvements on which the note was based. The petition alleged that appellees attempted to settle these compliance problems with M.N.C., without success, and requested the judgment be opened so that they might enter a defense of counterclaim and set-off.
The Center's petition was denied on October 8, 1980 following a hearing. The initial appeal by the Center to this court resulted in the vacation and remand of the case to the trial court, as the trial court's opinion filed pursuant to Pa.R.A.P. 1925 set forth that it had erred in denying the petition to open. M.N.C. Corp. v. Mt. Lebanon Medical Center, Inc., 294 Pa. Super. 405, 440 A.2d 528 (1982). Following remand, the trial court granted the Center's petition and this appeal followed.
M.N.C. raises two issues on appeal: (1) whether the trial court erred in granting the Center's petition for leave to intervene and (2) whether the trial court erred ...