Appeal from the Order of the Court of Common Pleas, Civil Division, of Lebanon County at No. 392 of 1983.
C. Walter Whitmoyer, Jr., Lebanon, for appellant.
James T. Reilly, Lebanon, for appellee.
Popovich, Watkins and Lipez, JJ. Lipez, J., concurs in the result.
[ 340 Pa. Super. Page 485]
This is an appeal from an order granting a petition to open judgment. We affirm.
The appellant (Christos Lambakis) and appellee (Nicholas L. Exar) entered into an agreement dated November 1, 1982, whereby the appellant sold to the appellee, for $18,000, an ongoing business ("Athens Pizza"). In securement of the purchase, the appellee executed a promissory note of even date in favor of the appellant in the amount of $3,000. Also, one of the conditions of the sale was the appellant's agreement to refrain, for a period of three years, from "competing with the business being sold".
On March 14, 1983, the appellant filed a complaint alleging that the appellee had defaulted in the payment of the
[ 340 Pa. Super. Page 486]
installment due on March 1, 1983, and, as a result, he was exercising his option to "demand that all remaining installments become immediately due and payable." As a consequence, pursuant to the authority contained in the warrant of attorney, the appellant's counsel appeared for the appellee and confessed judgment in favor of his client and against the appellee in the amount of $2,625. Additionally, on the date stated, the appellant filed a praecipe for writ of execution with the prothonotary of Lebanon County to levy upon and sell the personalty situated in the business establishment.
In response, counsel for the appellee filed, on March 24, 1983, a petition to open judgment wherein he alleged that, inter alia, no money was due the appellant on the promissory note because he (appellant) had violated the agreement of sale "by entering into another business in competition with the [appellee]". In the remaining portion of the petition, the appellee raised new matter and a two-count counterclaim.
The reaction of counsel for the appellant was to file preliminary objections in the form of a motion to strike the petition/pleading of the appellee seeking, in part, liquidated damages. His belief was that the procedure followed and the relief sought were not contemplated by the Rules of Civil Procedure (e.g., 2959 & 2960). However, albeit mention of the appellee's claim for violation of the non-competition clause was made, the appellant neither denied nor admitted the appellee's assertion of contractual breach.
In a memorandum of law in opposition to the preliminary objections, the appellee wrote that "[t]he counts set forth in the Counterclaim", which requested affirmative relief, "[we]re not relied upon by [him] in the Request to Open the Confessed Judgment." Rather, the petition to open rested upon the contention that the appellant contravened the non-competition portion of the agreement to sell "and thus there [was] a failure of consideration relieving ...