A. B. & F. Contracting Corp. v. Matthews Coal Co.
| Decision Date | 14 December 1960 |
| Citation | 166 A.2d 317,194 Pa.Super. 271 |
| Parties | A. B. & F. CONTRACTING CORPORATION, Appellant, v. MATTHEWS COAL COMPANY, Inc., Appellee. |
| Court | Pennsylvania Superior Court |
Smith, Smith & Work, Joseph P. Work Clearfield, for appellant.
John B. Gates, Clearfield, for appellee.
Before RHODES, P. J., and GUNTHER, WRIGHT, WOODSIDE, WATKINS and MONTGOMERY, JJ.
This is an appeal from an order of the Court of Common Pleas of Clearfield County striking off a judgment entered by A. B. & F. Contracting Corporation against Matthews Coal Company Inc. The factual situation and the respective legal contentions are set forth in the following excerpt from the opinion below:
'The plaintiff and defendant entered into an agreement dated May 8, 1952, in which the plaintiff was designated the contractor, and the defendant designated operator. By virtue of this agreement, the defendant, the owner of certain surface and mineral rights of several described tracts of land in Penn Township, Clearfield County, Pennsylvania, agreed to pay the plaintiff, as contractor, so much per ton to strip, lift and carry away the coal on the described land.
'This agreement contained a warrant of attorney, authorizing the contractor, the plaintiff, to confess judgment against the defendant, the operator, for any coal stripped and transported, not paid for by the defendant, at the rate fixed in the agreement. The warrant of attorney appears as follows:
"(i) The parties mutually agree and authorize any attorney of any Court of Record in Pennsylvania or elsewhere as often as default shall be made in the payment of any sums due either party under this Agreement, to appear for such defaulting party and confess judgment or judgments against it, for the sums then due and unpaid, with an attorney's commission of ten per cent, costs of suit, without stay of execution, waiving inquisition and extension and condemnation is hereby agreed to; provided, that the warrants of attorney to confess judgment or judgments for sums of money due hereunder, shall not be exercised by the aggrieved party until after ten (10) days' notice, in writing, has been given to the defaulting party of any default claimed, so that during said ten (10) days' period, such defaulting party may cure, or rectify the said default. It is further mutually understood and agreed that one exercise of such warrant of attorney shall not exhaust the same, but that judgment or judgments may be entered as often as default shall occur hereunder'.
'The warrant of attorney inures to the benefit of either party, in the event a default occurs in any of the covenants to be carried out by either.
'In the affidavit of default the plaintiff avers the defendant defaulted in the payment of $2862.99, as falling due on December 1, 1953, and has remained in default thereunder until the present time, namely, the entry of the judgment on the warrant of attorney on April 27, 1960.
'In the petition to open and strike, the defendant avers that the amount averred unpaid, became due and payable December 1, 1953, and no further payments under the contract were due the plaintiff by the defendant; and that the amount claimed is barred by the Statute of Limitations.
'The defendant, in its petition, also avers that the contract ended by virtue of its terms, on May 8, 1954, and the warrant of attorney expired at the time the contract terminated; and third, the amount claimed includes coal stripped and removed from land other than that described in the agreement.
'The plaintiff, in answer to the petition, avers the instrument is an instrument under seal and, therefore, the clause for enforcement of duties is not applicable, under the Act of March 27, 1713, Section 1 (12 P.S. 31); and that the power of attorney to confess a judgment is not extinguished by the termination of the contract; and further, that the coal stripped and loaded from lands not described in the agreement, was stripped and removed by the parties under the agreement, by implication and course of conduct during the stripping operation'.
The rationale of the able opinion of President Judge Pentz is that the affidavit of default was defective in that it did not aver that appellant had given the ten day notice specified in the warrant of attorney. Appellant states that the question before us is as follows: 'Was this judgment by confession properly struck on the ground the affidavit of default did not specifically aver notice of default, when Defendant did not raise or argue this issue, when Defendant appeared and argued its motion to open, and when notice had been given and the affidavit of default so implied' [1] .
In Grady v. Shiffler, 384 Pa. 302, 121 A.2d 71, 73, Mr. Chief Justice Stern said: 'It is a firmly established rule of construction in the case of warrants of attorney to confess judgments that the authority thus given must be clear, explicit and strictly construed, that if doubt exists it must be resolved against the party in whose favor the warrant is given, and that all proceedings thereunder must be within the strict letter of the warrant'. If the authority to enter judgment by confession on a warrant of attorney is not strictly followed, the judgment will be stricken. Park-Main Co. of Pennsylvania v. Fayette National Bank & Trust Co., 397 Pa. 75, 152 A.2d 714.
Appellant contends that the issue of the failure to set forth in the affidavit of default that the ten day notice had been given was not raised at the hearing on petition and answer. It is appellant's position, citing Kros v. Bacall Textile Corp., 386 Pa. 360, 126 A.2d 421, that the court below erred in striking the judgment on an issue raised of its own motion. In a footnote in the Kros case, doubt is...
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