Appeal, No. 54, March T., 1962, from order of Court of Common Pleas of York County, Aug. T., 1960, No. 736, in case of Epp's Used Cars v. Kenneth R. Few et al. Order affirmed.
Daniel W. Shoemaker, with him Shoemaker & LeCates, for appellant.
Raymond R. Smith, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 197 Pa. Super. Page 479]
The only question raised in this appeal is whether the court below abused its discretion in considering as the basis for its decision a matter not raised by the petition to open judgment but stipulated in the depositions by counsel for the parties.
On November 28, 1959 Dora Tarbert and her grandson, Kenneth R. Few, entered into an installment sale contract for the purchase of an automobile from the appellant. Kenneth R. Few was not 21 years of age at the time of purchase and to facilitate the purchase of the automobile Dora Tarbert became a party to the contract. In July 1960, before any default in payment of installments, Kenneth R. Few returned the vehicle to the York Trust Company, who had discounted the sales contract. Subsequent to that time notice of repossession was sent to Kenneth R. Few but Dora Tarbert was not served with a notice of repossession although she was a party to the contract. Kenneth R. Few did not redeem the vehicle and the appellant sold the vehicle at auction. Judgment was entered on the note which was executed at the time of the original contract and an execution was issued and levy made on the real property of Dora Tarbert. Thereafter a petition to open judgment was filed on behalf of Dora Tarbert. An answer was filed and depositions were
[ 197 Pa. Super. Page 480]
taken thereon. At the taking of the depositions counsel for both parties entered into a stipulation that Dora Tarbert did not receive a notice of repossession as provided for in § 23 of the Act of 1947, 69 PS § 623, which provides as follows: "D. When repossession of a motor vehicle, which is the subject of an installment sale contract, is effected otherwise than by legal process, the holder shall immediately furnish the buyer with a written 'notice of repossession' delivered in person, or sent by registered mail directed to the last known address of the buyer. Such notice shall set forth the buyer's rights as to reinstatement of the contract, if the holder extends the privilege of reinstatement and redemption of the motor vehicle, shall contain an itemized statement of the total amount required to redeem the motor vehicle by reinstatement or payment of the contract in full, shall give notice to the buyer of the holder's intent to re-sell the motor vehicle at the expiration of fifteen (15) days from the date of mailing such notice, shall disclose the place at which the motor vehicle is stored, and shall designate the name and address of the person to whom the buyer shall make payment, or upon whom he may serve notice."
Section 25B of the Act of 1947, 69 PS § 625B, provides as follows: "During such fifteen (15) day period the buyer may redeem the motor vehicle and terminate the contract by payment or tender of payment to the holder of the following amounts, subject to the conditions hereinafter indicated."
We agree with the court below that "The importance of this notice is plainly shown by the detailed information required to be in it. This right to notice of repossession, with other rights of a purchaser of an automobile on an installment contract, are not to be treated lightly. The Act of 1947, supra, states that 'it is hereby declared to be ...