234 Pa. Super. 612 | Pa. Super. Ct. | 1975
Opinion by
Appellants contend that the lower court erred in denying their petition to “open, strike, or otherwise set aside a confessed judgment.”
On June 1, 1973, appellants Frank and Suellen Rossi signed a real estate sales agreement to purchase the home of the appellees, Gary and Susanne Bowden, located in Phoenixville, Montgomery County, for $19,000. This transaction took place at the offices of Joseph A. Puleo & Sons, Inc., the real estate broker hired by the appellees. The broker accepted a check in the amount of $500 as a
The record reveals conflicting accounts of the events following appellants’ offer to purchase the Bowden home. According to the appellants, Mr. Rossi contacted Mr. Puleo on Saturday, June 2, 1973, at 9:45 a.m., informed him that the offer was withdrawn and demanded that his deposit be returned. Appellants claim that Mr. Puleo called Mrs. Bowden, that Mrs. Rossi also contacted Mrs. Bowden by telephone, and that Mrs. Bowden told them that she could not make a definite statement until her husband returned home. Most importantly, appellants allege that the Bowdens did not sign the agreement of sale and thus did not accept the offer tendered by appellants until the afternoon of June 2, 1973.
Appellees gave an entirely different account. They claim that the Rossis called Puleo on the morning of June 2, 1973, and asked for an appointment to see the property. Puleo and the Bowdens allege that the agreement of sale was signed by appellees at 12:30 that afternoon, prior to any attempt by appellants to withdraw their offer.
In order to open a confessed judgment, the judgment debtor must act promptly and produce evidence in support of a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967) ; Wolgin v. Mickman, 233 Pa. Superior Ct. 218, 335 A.2d 824 (1975); Ritchey v. Mars,
Rule 2959 (e)., Pa. R. C. P., provides: “The court shall dispose of the [rule to show cause] on petition and answer, and on any testimony, depositions, admissions and other evidence ... If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.” (Emphasis added). Appellees do not contest the proposition that lack of consideration constitutes a complete defense to a suit on the note in question. They argue, however, that appellants failed to produce sufficient evidence in support of the defense to pose a jury question. Rule 2959(e) directs the court to consider the petition, answer, testimony, etc. In their brief, appellees state that the record in the present case ,“consist[s] of a petition, answer, and depositions of the Bowdens.” Yet they maintain that “the record contains only the uncontra-dicted testimony of the Bowdens that the agreement had been signed prior to any notice of the Rossis’ intention to withdraw the offer.” It is true that the only oral testimony taken was that of the Bowdens, the appellees. But the petition contains a statement of Mr. Rossi that the offer was withdrawn prior to acceptance. In view of the language of Rule 2959(e), and appellees’ own definition of what constitutes the “record,” they cannot argue that appellants produced no evidence in support
Order of the lower court is reversed and the case is remanded with instructions to open the confessed judgment and proceed to trial under Rule 2960, Pa. R. C. P.
In view of the disposition of this case, it is unnecessary to discuss appellants’ other contention.