Boyertown Oil Co. v. Osan Manufacturing Co. , 356 Pa. Super. 436 ( 1986 )

WIEAND, Judge:

Boyertown Oil Company, Inc. (Boyertown) recovered a partial summary judgment against Osan Manufacturing Company, Inc. (Osan) for the price of oil delivered to Osan on three separate occasions. After the expiration of the appeal period, Boyertown issued execution on its judgment. Osan then attempted to stay the execution until liability for a fourth delivery of oil had been adjudicated. The trial court denied Osan’s request, and this appeal followed. We affirm.

The action had been commenced by Boyertown to recover the agreed price of oil delivered to Osan on four separate occasions. After discovery proceedings had been completed, Boyertown filed a motion for partial summary judgment on the basis of admissions made by Osan’s president that his corporation owed Boyertown the prices charged for the first three deliveries. The trial court granted the motion and caused judgment to be entered for Boyertown in the amount of $10,666.69. No appeal was filed from the entry of this judgment. After the appeal period had expired, Boyertown issued execution against its judgment debtor. Osan then filed a petition in the trial court asking the court to “clarify” the summary judgment by determining whether it was enforceable before there had been an adjudication of the dispute regarding liability for the fourth delivery and Osan’s counterclaim arising out of the fourth delivery. By order dated June 26, 1985, the trial court held that Boyer-town’s judgment could be enforced and refused to stay execution until after the remaining claim had been adjudicated.

Many years ago the legislature in Pennsylvania provided that a court should have the power to enter judgment in an amount which a defendant has admitted to be due. See: Act of May 31, 1893, P.L. 185, 12 P.S. § 736, suspended by 42 Pa.C.S. § 1722(a)(1); Practice Act of 1915, Act of May 14,1915, P.L. 483, § 17,12 P.S. § 735, suspended by 42 Pa.C.S. § 1722(a)(1). See also: 2 Goodrich-Amram 2d §§ 1037(b):3, (c):2. This power of the court remains extant. Pa.R.C.P. 1037(c) provides that “[i]n all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.” Rule 1037(c), when considered in conjunction with Pa.R.C.P. 1034(b), which authorizes a court to enter judgment “as shall be proper on the pleadings,” was held to constitute authority for the entry of a partial judgment on the pleadings for that portion of a claim whose validity was admitted. See: Kappe Associates, Inc. v. Aetna Casualty and Surety Co., 234 Pa.Super. 627, 630 n. 1, 341 A.2d 516, 518 n. 1 (1975). See also: Jeffrey Structures, Inc. v. Grimaldi, 186 Pa.Super. 437, 441-442, 142 A.2d 378, 380 (1958); 2 Goodrich-Amram 2d § 1037(c):2. Rule 1037(c) must also be read in pari materia with Rule 1035, which permits the entry of summary judgment whenever there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. It would be truly anomalous to permit a partial judgment on the pleadings for an amount admitted to be due but not a partial summary judgment if the amount admitted to be due should be contained in depositions or answers to interrogatories. It seems clear, therefore, that the trial court in this case could properly enter summary judgment on one or more, but fewer than all, claims alleged in the complaint.¹

In the instant case, Boyertown’s complaint stated not a single claim but four distinct claims arising out of four separate transactions. They were joined, as permitted by Pa.R.C.P. 1020(a), in one complaint. However, the four causes of action, being separate, might well have been asserted in separate complaints. In that event, Boyer-town’s right to summary judgments for the amounts due on account of three, separate deliveries of oil would have been clear. The result is not different because Boyertown elected to include the four separate claims in one complaint.

Moreover and in any event, no appeal was ever filed from the summary judgment entered by the trial court in this case. Therefore, the judgment became final after the expiration of thirty days. See: Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 243-45, 504 A.2d 335, 337 (1986); Hunter v. Employers Insurance of Wausau, 347 Pa.Super. 227, 229-230, 500 A.2d 490, 491 (1985). Any objection to the validity of the judgment was waived by Osan when it failed to take a timely appeal therefrom.

Osan’s appeal was taken from the order of June 26, 1985 which permitted enforcement of the judgment and not from the order entering summary judgment. The issue to be decided by this Court, therefore, is whether an unchallenged, final judgment can be enforced before related claims have been finally adjudicated.

“Executions are within the equitable control of the court from which they are issued.” Fedun v. Mike’s Cafe, Inc., 204 Pa.Super. 356, 360, 204 A.2d 776, 779 (1964), aff'd, 419 Pa. 607, 213 A.2d 638 (1965). See: Sinking Fund of Commissioners of Philadelphia v. Philadelphia, 324 Pa. 129, 135, 188 A. 314, 317-318 (1936). A court’s decision to grant or stay execution will not be disturbed absent an abuse of that discretion. Id. Generally, a “court may permit the issuance of an execution on a judgment entered on an admission of the defendant as to a part of the claim of the plaintiff ... even where there is no standing rule of court which authorizes such execution.” 12 Std.Pa.Prac.2d § 72:9.

In Sterling Electric & Furniture Co. v. Peterson, 409 Pa. 435, 187 A.2d 285 (1963), the plaintiff had obtained a judgment by confession in the amount of $6,650 pursuant to authorization contained in a judgment note which had been executed in blank by defendants. Although defendants admitted owing plaintiff $1,752 on the note, they filed a petition to open the entire judgment on the ground that plaintiff had fraudulently overstated the amount owed. Based on defendants’ admission, the plaintiff petitioned the trial court for leave to proceed with execution for the undisputed amount. The trial court denied plaintiff’s petition for execution and opened the entire judgment. In reversing, the Supreme Court said:

This action of the Court cannot be sustained. When a debtor solemnly acknowledges the existence of a certain amount due under a judgment note, no purpose is served in refusing execution to the creditor of that amount, merely because the debtor alleges that he does not owe another amount.

The defendants have admitted, under oath, that they owe the plaintiff $1,752; there is no contest as to this sum. They should therefore pay it. Paying this amount in no way impedes the exercise of justice and fairness in the opening of the judgment as to the difference between $1,752 and the amount of the judgment note as filed.

Id., 409 Pa. at 438, 187 A.2d at 287. See also: Nisenbaum v. Farley, 380 Pa. 257, 110 A.2d 230 (1955) (where the validity of a judgment is not at issue, it is erroneous to refuse execution on the undisputed amount).

The reasoning of the Court in Sterling Electric is controlling of the case sub judice. Where, as here, the defendant has “solemnly acknowledged” the validity of a portion of the plaintiffs claim and judgment has been entered in the amount admitted to be due, requiring the defendant to pay the judgment immediately does not impair the defendant’s right to litigate the remainder of the plaintiff’s claim. Indeed, to delay execution on a judgment, which is a recognized, vested property right, may well be contrary to notions of “due process.” See: Sinking Fund Commissioners of Philadelphia v. Philadelphia, supra 324 Pa. at 133-134, 188 A. at 317.

Once again, it is helpful to examine Boyertown’s right to execute in light of the fact that it has recovered on three causes of action which are separate and distinct from the fourth. These separate causes of action might have been stated in separate complaints. If Boyertown had recovered summary judgments in three separate actions, its right to enforce those judgments would have been clear. The right to enforce the judgment recovered in this case for moneys due in three separate transactions is equally unassailable.

We hold, therefore, that the trial court did not commit an error of law or abuse its discretion when it refused to stay execution on Boyertown’s judgment.

Order affirmed.

CIRILLO, President Judge, files a dissenting opinion.

1 . The author of the dissenting opinion concludes that Pa.R.C.P. 1035(c) prohibits the entry of partial summary judgment under any circumstances. To support this conclusion, the dissent relies upon interpretations of the federal counterpart to Rule 1035(c). Such reliance, however, is misplaced. Although Pa.R.C.P. 1035(c) is a verbatim duplication of Rule 56(d) of the Federal Rules of Civil Procedure, Federal Rule 56(d) is only one of several provisions within the Federal Rules which delineate the circumstances under which summary judgments may be entered. Other provisions specifically empower federal courts to enter partial, summary relief. See: Fed.R. Civ.P. 54(b) and 56(a). Recognizing that these provisions have endowed the federal judiciary with the power to enter partial summary relief, some federal courts have held that Rule 56(d) does not create an overlapping power. See, e.g., Coffman v. Federal Laboratories, Inc., 171 F.2d 94 (3d Cir.1948); Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946); Testa v. Janssen, 492 F.Supp. 198 (W.D.Pa.1980); Bonda’s Veevoederfabriek, Provimi, B.V. v. Provimi, Inc., 425 F.Supp. 1034 (E.D.Wis.1976). See also: 10A Wright, Miller and Kane, Federal Practice and Procedure, § 2737, at 457-458. Contra: Gadsden v. Fripp, 330 F.2d 545 (4th Cir.1964); Blackford v. Action Products Co., 92 F.R.D. 79 (W.D.Mo.1981); Velsicol Corp. v. Hyman, 103 F.Supp. 363 (D.Colo.1952). However, they have not held, as the dissent suggests, that Rule 56(d) prohibits the entry of partial summary judgment. Indeed, such an interpretation of Rule 56(d) would deprive the other rules which create such a power of any meaning whatsoever. Instead of being interpreted as restricting the federal judiciary’s power to enter partial relief, Rule 56(d) has been construed to complement that power. Where the entry of a final judgment on one of multiple claims or on part of a single claim is not appropriate, Rule 56(d) nevertheless allows the court to enter an order specifying those issues which will not be in dispute in a subsequent trial on the merits of the claim or claims. See: Metal Coating Corp. v. Baker Manufacturing Co., 227 F.Supp. 529, 530 (W.D.Wis.1964).

The Pennsylvania rules operate in a similar manner. Rule 1035(c) neither proscribes nor specifically authorizes summary judgment for parts of claims admitted by a party to be due and owing. When read with other rules authorizing the entry of judgment, however, it is clear that a final judgment may be entered as to one or more, but fewer than all, claims asserted in the complaint.