Loading...
HomeMy WebLinkAbout2009-2685 LOU S. DRAYER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-2685 CIVIL OLLIE A. MICK, III, : Defendant : IN RE: PETITION TO OPEN AND/OR STRIKE JUDGMENT BEFORE HESS, J. MEMORANDUM AND ORDER In this case, the plaintiff has filed a complaint confessing judgment against the defendant in the amount of $26,757.03. The defendant filed preliminary objections to the complaint. Relief from a judgment by confession may not be obtained by preliminary objection but, rather, “shall be sought by petition.” Pa.R.C.P. 2959(a)(1). Giving the defendant the benefit of the doubt, we have treated the preliminary objections as a petition to open and/or strike the judgment. Upon further review, it is apparent that the “preliminary objections” allege defects on the face of the record and thus will be treated as a petition to strike the judgment. For the reasons which follow, we deny the petition. The defendant objects for lack of in personam jurisdiction and failure to state a cause of action, alleging, in both claims, that he is not personally liable on the underlying obligation. He contends, also, that there has been a failure to join the original borrower, Draymick, Inc. as an indispensable party to the action. The guarantee signed by the defendant is crystal clear that he is guaranteeing the loan on behalf of the borrower, Draymick, Inc. Nowhere in the instrument is there any reference to a limitation of the guarantee to a corporate capacity. Instead, Mr. Mick is identified using his NO. 09-2685 CIVIL address and social security number. The instrument is also clear that the guarantee inures to the benefit of not only the lender, Orrstown Bank, but also “its successors and assigns.” We are satisfied that the assignment of an instrument containing a confession of judgment provision is fully enforceable by an assignee. In this case, the complaint attaches the assignment as an exhibit. As noted in Testa v. Lally, 161 Pa.Super. 478, 55 A.2d 552, 553 (1947): We recognize that authority to confess judgment cannot operate in favor of a stranger to the contract, and that, if the interest of the plaintiff is not clearly set forth in the averment of default, the judgment may be stricken off. Boggs v. Levin, 297 Pa. 131, 146 A. 533; Hogsett et al. v.Lutrario, 140 Pa.Super. 419, 13 A.2d 902…. But where the averments on the record clearly set forth the interest of the plaintiff, the judgment will be sustained. Ulick v. Vibration Specialty Co., 348 Pa. 241, 35 A.2d 332. In view of Rule 2002, Pa. Rules of Civil Procedure, 12 P.S.Appendix, requiring all actions to be prosecuted in the name of the real party in interest, it is important that the interest of the plaintiff and its derivation be set forth in the averment of default and relevant pleadings. Brown et al. v. Esposito, 157 Pa.Super. 147, 42 A.2d 93. As noted, the interest of the plaintiff and its derivation is clearly set forth in the relevant pleadings in this case. The defendant has also raised a preliminary objection in the nature of a failure to join Draymick Inc. as an indispensable party. As we have already noted, relief from a confessed judgment is sought by petition and not by preliminary objection. It is our understanding of the law that, generally, in order to proceed against a guarantor, there must first be an attempt to collect the debt from the debtor. If the attempt to collect from the debtor has been to no avail, 2 NO. 09-2685 CIVIL then it appears obvious that the original debtor is no longer an indispensable party in the effort to collect from the guarantor. Whether or not there was an attempt to collect from the original debtor in this case is a factual question which must be raised in a petition to open. We are 1 satisfied that that issue is not before us. ORDER rd AND NOW, this 23 day of October, 2009, the petition of the defendant to strike judgment is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. David Baric, Esquire For the Plaintiff Lee Oesterling, Esquire For the Defendant :rlm 1 Even if this issue is raised, there may be an argument that it is waived in the particular commercial guarantee which is the subject of this case. 3 LOU S. DRAYER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-2685 CIVIL OLLIE A. MICK, III, : Defendant : IN RE: PETITION TO OPEN AND/OR STRIKE JUDGMENT BEFORE HESS, J. ORDER rd AND NOW, this 23 day of October, 2009, the petition of the defendant to strike judgment is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. David Baric, Esquire For the Plaintiff Lee Oesterling, Esquire For the Defendant :rlm