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C-RICH CO. v. CHARLES DAVIS AND CONSHOHOCKEN CONSTRUCTION COMPANY (03/28/89)

filed: March 28, 1989.

C-RICH CO.
v.
CHARLES DAVIS AND CONSHOHOCKEN CONSTRUCTION COMPANY, INC., APPELLANTS



Appeal from the Order Entered May 25, 1988 in the Court of Common Pleas of Montgomery County, Civil No. 87-17941.

COUNSEL

Gary L. Azorsky, Philadelphia, for appellants.

Marc D. Jonas, Norristown, for appellee.

Cirillo, President Judge, and Beck and Tamilia, JJ.

Author: Cirillo

[ 383 Pa. Super. Page 33]

This is an appeal from an order dated May 25, 1988, entered in the Court of Common Pleas of Montgomery County denying the petition of appellants, Charles Davis (Davis) and Conshohocken Construction Company, Inc. (Conshohocken), for leave to amend their petition to open or strike the judgment confessed against them.

The relevant procedural history may be summarized as follows: On December 10, 1987, appellee, C-Rich Company, entered judgment by confession against Davis and Conshohocken. Six days later, appellants filed a petition to strike or open the judgment and thereafter C-Rich filed its answer to the petition. On January 14, 1988, the trial court entered an order allowing a maximum of sixty days for the completion of the discovery before the case could be listed for argument. In March, 1988, C-Rich filed an argument praecipe, and Davis and Conshohocken filed a petition to amend their earlier petition in order to include the following additional grounds for opening or striking the judgment entered against them:

(1) Respondent's attorney was wholly without power or authority to enter his appearance on behalf of petitioners, and thus the judgment was entered invalidity and illegally and is without force or effect;

(2) The judgment was entered without a valid or legal appearance by or on behalf of petitioner Charles Davis, and thus respondent entered judgment in violation of 50 U.S.C.A. . . . ยง 520 by failing to file with the court an affidavit of non-military service;

(3) The complaint in confession of judgment fails to set forth with sufficient specificity the alleged default upon which the judgment is based, in violation of Pa.R.C.P. 2952(e);

[ 383 Pa. Super. Page 34]

(4) The complaint in confession of judgment fails to set forth with sufficient specificity an itemized computation of the amount allegedly due, in violation of Pa.R.C.P. 2952(e);

(5) The warrant of attorney and confession of judgment clauses in the contracts upon which respondent bases its judgment are inconspicuously located in a section of the contracts entitled "Repossession," conclude a lengthy sentence that appears to concern only instances of repossession, and are thus ambiguous, invalid and unenforceable as a matter of law;

(6) The affidavit of income executed by counsel for respondent and attached to the confession of judgment in the within action is inadequate as a matter of law, for it states only that petitioner Davis "is believed" to have an income in excess of $10,000.00, in violation of the rules of Montgomery County and petitioner's right to due process of law guaranteed by the Constitution of the United States; and

(7) The entry of judgment by confession against petitioners deprives them of their right to due process of law guaranteed by the 14th Amendment of the Constitution of the United States.

C-Rich then filed an answer to appellants' petition for leave to amend, and argument on that petition was scheduled. On May 25, 1988, the Honorable Anita Brody entered an order ...


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