185 A.2d 602

A. J. Aberman, Inc. v. White Cunningham, Appellant.

Supreme Court of Pennsylvania.October 9, 1962.
November 13, 1962.

Judgments — Confession — Opening judgment — Court below — Discretion — Appellate review.

1. Equitable relief in opening a judgment is of grace and not of right; and the appellate court will not disturb the lower court’s action in the absence of a clear abuse of discretion. [150]

2. It was Held, upon a review of the record, that the court below had not abused its discretion in refusing to open a judgment confessed on a mortgage note. [149-50]

Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and KEIM, JJ.

Appeal, No. 278, March T., 1962, from order of Court of Common Pleas of Allegheny County, Jan. T., 1961, No. 1849, in case of A. J. Aberman, Inc. v. White Cunningham, a partnership composed of W. J. White, Jr. and Theodore W. Cunningham. Order affirmed; reargument refused November 28, 1962.

Proceedings on petition to open judgment entered by confession.

Order entered denying defendants’ motion for judgment on the pleadings and sustaining plaintiff’s motion

Page 149

to discharge the rule to open judgment, opinion by BROSKY, J. Defendants appealed.

Paul Ginsburg, for appellant.

J. Leonard Smith, Jr., with him David R. Levin, and Reed, Smith, McClay, for appellee.

OPINION BY MR. JUSTICE COHEN, November 13, 1962:

We should terminate this appeal by granting appellee’s motion to quash the appeal since appellant failed to comply with Rule 49 by neglecting to print, in connection with this appeal, matters required by Rule 49 including pertinent pleadings and testimony taken in the form of depositions, as well as the opinion of the court below (which appellant has indicated to us he would not print under any circumstances).

However, we will finalize these proceedings by a determination on the merits. The order appealed from denied the appellant’s motion for judgment on the pleadings and sustained appellee’s motion to discharge the rule to open judgment. We think that the lower court’s action on the merits is correct and we affirm.

The main issue raised by the petition to open judgment and the motion for judgment on the pleadings surrounds the factual determination as to whether the Mellon National Bank was required to give a credit of $700,000 on a mortgage note, which mortgage note and accompanying mortgage were assigned to A. J. Aberman, Inc., appellee, and which mortgage note was in default in the payment of interest and principal. It was on this note that judgment was confessed against the appellant in the sum approximating $764,000.

After full depositions and a thorough analysis of the facts pertaining to the alleged credit, the lower court determined that the appellant failed to prove that he was entitled to have $700,000 credited against

Page 150

the principal debt confessed against him; thus reducing the debt to less than $65,000.

We have reviewed the record in this matter and are of the opinion that the conclusion of the court below is confirmed and substantiated by the depositions. On appeal in these proceedings we do not disturb the lower court’s action unless a clear abuse of discretion appears. Roche v. Rankin, 406 Pa. 92, 176 A.2d 668 (1962). Here, there is not even a semblance of such abuse.

Under the circumstances, the order of the court below denying appellant’s motion for judgment on the pleadings and sustaining appellee’s motion to discharge the rule to open judgment, as well as the other matters covered in the order, is affirmed.

Order affirmed.