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SAMS CORPORATION v. NICK GARIN AND EMMA GARIN (02/12/86)

filed: February 12, 1986.

THE SAMS CORPORATION, T/D/B/A BISHOP ELECTRIC COMPANY
v.
NICK GARIN AND EMMA GARIN, HIS WIFE, APPELLANTS, PITTSBURGH NATIONAL BANK, GARNISHEE



Appeal from the Order of September 6, 1984, in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 84-8706.

COUNSEL

Louis C. Long, Pittsburgh, for appellants.

Robert L. Campbell, Bridgeville, for appellee.

Wieand, Del Sole and Hester, JJ. Del Sole, J., files a dissenting opinion.

Author: Per Curiam

[ 352 Pa. Super. Page 106]

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying appellants' petition to strike or open a confessed judgment. Appellee confessed judgment against appellants on May 17, 1984. Appellants' petition, which was filed on June 22, 1984, was denied following depositions and oral argument. This appeal ensued.

A petition to open judgment is only granted in limited circumstances. As an appeal to the equitable powers of the

[ 352 Pa. Super. Page 107]

    court, it rests firmly on the sound discretion of the hearing court and will only be disturbed in the case of a manifest abuse of discretion. First Seneca Bank & Trust Co., v. Laurel Mountain Development Corp., 506 Pa. 439, 443, 485 A.2d 1086, 1088 (1984). In seeking to open a confessed judgment, a petitioner must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issue to a jury. Lambakis v. Exar, 340 Pa. Super. 483, 490 A.2d 882 (1985); Bell Federal Savings & Loan Ass'n of Bellevue v. Laura Lanes, Inc., 291 Pa. Super. 395, 398, 435 A.2d 1285, 1286 (1981). The moving party has the burden of producing sufficient evidence to substantiate his alleged defenses. See Pa.R.C.P. 2959(e).

Appellee, Bishop Electric Company, performed electrical work for appellants' business, Pennsylvania Motor Speedway. The resulting alleged indebtedness, $47,000, was secured by a mortgage and a mortgage note. When payment was not forthcoming, appellee confessed judgment against appellants upon the mortgage note; it had already instituted a mortgage foreclosure action. On June 19, 1984, a writ of execution was issued on the confessed judgment and a checking account maintained by Pennsylvania Motor Speedway was garnished on the following day.

Appellants' petition to strike off or open the judgment and to stay execution averred, among other claims, that appellee was collaterally estopped from proceeding on the confession of judgment in light of its foreclosure action on the mortgage and that the confession of judgment had merged into the complaint of mortgage foreclosure. The lower court refused to open the confessed judgment, holding that appellants had failed to set forth facts supporting a meritorious defense.

In denying appellants' petition to open the confessed judgment, the lower court observed that the petition merely contained allegations of collateral estoppel and merger of the confession of judgment on the mortgage note and ...


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