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EMILY KEIPER v. BURTON H. KEIPER (06/07/85)

filed: June 7, 1985.

EMILY KEIPER, SURVIVING SPOUSE AND HEIR OF LEON L. KEIPER, DECEASED, FOR THE USE OF LEON L. KEIPER (DEC'D), RAY B. KEIPER (DEC'D), JOYE KEIPER, ALLEN A. KEIPER (DEC'D), GLENDORA G. KEIPER, FAME KEIPER ELWINE, INDIVIDUALLY AND AS HEIRS OF SARAH A. KEIPER (DEC'D), APPELLANTS AT NO. 3040,
v.
BURTON H. KEIPER, DECEASED, AND WILLIAM ELWINE, EXECUTOR OF THE ESTATE OF BURTON H. KEIPER, DECEASED, APPELLANTS AT NO. 3284



Appeal from the Order of the Court of Common Pleas of Monroe County, Civil Division at No. 40 Dec. Term, 1944, 83 Dec. Term, 1949, 363 Feb. Term, 1968, 20 Jan. Term, 1973 & 792 Jan. Term, 1978.

COUNSEL

Mark S. Love, Stroudsburg, for appellants (at No. 3040), for appellees (at No. 3284).

Anna C. Tiracchia, Stroudsburg, for appellant (at No. 3284).

Spaeth, President Judge, and Cavanaugh, Wieand, Cirillo, Montemuro, Popovich and Hoffman, JJ. Spaeth, President Judge, files a concurring opinion, joined by Wieand, J. and Montemuro, J. Cavanaugh, J., files a concurring and dissenting opinion.

Author: Popovich

[ 343 Pa. Super. Page 258]

This appeal presents the narrow issue of whether a premature entry of confession of judgment renders the judgment void or merely voidable. We hold that the defect is voidable, and, under the circumstances of this case, must reverse the action of the lower court in striking the judgment.

This matter involves cross-appeals,*fn1 one from the order granting the petition to strike the judgment, and the other from the lower court's order dismissing the petition to open the judgment.

The somewhat unusual facts are these: On December 22, 1944, judgment was confessed and entered on the following note:

$15,800.00 East Stroudsburg, Pa., Dec. 22, 1944 1 year after date I promise to pay to the order of Leon L. Ray B. Joye J. Allen A. Glendora G. and Fame Keiper and my wife Sarah A. Keiper Fifteen Thousand Eight Hundred Dollars at the

EAST STROUDSBURG NATIONAL BANK

     without defalcation for value received, and if not paid upon maturity . . . hereby authorize the Prothonotary to enter judgment for said sum with costs and Attorney's commission, and do hereby waive the right of inquisition, exemption and stay of execution.

Burton H. Keiper [L.S.]

___ [L.S.]

[ 343 Pa. Super. Page 259]

We emphasize to the reader that the prothonotary was authorized to enter judgment only if the sum was not paid upon maturity, i.e. one year later, and it is undisputed that the judgment was indeed entered prematurely. Three amicable revivals were filed subsequently, and a partial release from judgment was filed enabling the original debtor to convey certain real estate. Burton H. Keiper died on July 3, 1977. When plaintiff filed a praecipe for a writ of revival, only then, after 34 years of record, was the judgment attacked. After an answer and preliminary objections by the parties, judgment was entered against the defendants on the Writ of Revival. In the meantime, however, defendants filed petitions to open and to strike the judgment. Finally, on November 18, 1981, the lower court dismissed the petition to open judgment for lack of an explanation for the delay in filing the same, but the court did grant the petition to strike the judgment holding that the prothonotary acted without authority since there was no -- and could not be at that early stage -- affidavit of default. Moreover, the court held that the defective judgment was not susceptible to curative amendment, and, by necessary implication, the judgment was void -- not merely voidable -- when prematurely entered 37 years earlier, three amicable revivals notwithstanding. The lower court also ruled that laches was not a defense since a void judgment is a nullity without legal effect. In dismissing the petition to open, however, it was held that defendants made no attempt to explain the delay in presenting it.

The court below in its comprehensive opinion examined the cases which bear on our conclusion instantly. Nevertheless its analysis of the effects of a defective judgment exposes once again the difficulty in resolving the issue, a difficulty which seems always to arise out of the rather imprecise use of words in describing a judgment being assailed. By labeling a judgment "defective" or "irregular" or "invalid" one does not dispose of the ultimate issue of whether the defect, irregularity or invalidity renders the

[ 343 Pa. Super. Page 260]

    judgment void or voidable, but rather merely begs the question.

Instantly, it is conceded that the judgment having been entered prematurely was defective on its face. The defect is clear, but is it a defect that renders the judgment void, that is, of no effect, potency or value, irretrievably and incurably lost? Or is the ...


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