Appeal from the Order entered January 2, 1985 in the Court of Common Pleas of Montgomery County, Civil No. 82-03038
Richard A. Breuer, Paoli, for appellant.
Rowley, Del Sole and Beck, JJ.
[ 348 Pa. Super. Page 325]
This appeal arises from the Order of January 2, 1985 opening judgment and permitting Mary M. Leo to enter a defense but denying the Petition to Open and/or Strike Judgment as to the Appellant, John E. Leo.
The factual history indicates that the note at the center of this dispute arose out of a condominium construction project owned and developed by Charlestown Arms Corporation of which the Appellant was president and his wife secretary.
The Appellee's principal, John H. Taggart, had entered into contracts with Charlestown Arms for various plumbing and mechanical services on the condominium project. The contracts were solely between the corporations and did not involve the Leos individually.
Subsequently, the Appellee filed a Mechanic's Lien Claim against Charlestown Arms for unpaid work. Negotiations ensued and the parties entered two separate settlement agreements resulting in the mechanic's lien being released.
Charlestown Arms again developed delinquency problems. Following a discussion between Mr. Taggart and the Appellant, the note at issue here was executed. The Appellee
[ 348 Pa. Super. Page 326]
alleges the note was the Leo's personal guarantee of Charlestown's indebtedness. The Leo's allege the note was procured by fraud, that there was no consideration to them for the execution of the note, that they were not personally indebted to Appellee, and that part of the sum represented by the note had previously been settled.
The Appellee entered judgment by confession against Mary M. Leo and Appellant pursuant to the note. The Leo's petitioned to Open and/or Strike Judgment. The trial court granted the petition as to Mary M. Leo but denied the Petition to Open and/or Strike Judgment as to the Appellant since he failed to produce sufficient evidence in support of his defenses to require submission of the issue to a jury. It is from this order that Appellant appeals.
On appeal, the Appellant contends that in order to open a judgment by confession, a defendant's proffered proof of meritorious defense need not meet the stringent standard of "clear and ...