Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, No. 940, in case of Central Penn National Bank v. Fleischmann Baking Co., Inc.
Richard M. Shusterman, with him White & Williams, for appellant.
Rudolph J. DiMassa, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Jacobs, J.
[ 225 Pa. Super. Page 450]
The lower court struck off a judgment entered by confession and the plaintiff in that judgment appeals.
[ 225 Pa. Super. Page 451]
We reverse and remand for consideration of appellee's motion to open the judgment.
On January 7, 1972, appellant filed a complaint and entered judgment against appellee in the amount of $155,223.53, consisting of principal of $147,023.30, interest of $808.63, and attorney's fees of $7,391.60. Judgment was entered by an attorney who appeared for appellee and confessed judgment as authorized by mortgage note dated August 20, 1962, attached to the complaint. The mortgage note was in the principal sum of $180,000.00, to be paid in 84 equal installments including interest at the rate of 5 1/2% per annum. It was signed by the appellee and empowered any attorney "to appear for and to confess Judgment against it and in favor of said holder, its Successors or Assigns, . . . for the debt evidenced by this note with interest thereon . . . together with costs of suit and an Attorney's fee of 5% . . . for collection . . . ." The complaint alleged that the principal sum was due and owing with interest, but made no reference to the rate of interest charged.
Appellee petitioned to strike or open the judgment, alleging that on September 1, 1965, the unpaid principal of the mortgage was $147,023.30; that payments of rent on a certain lease had been made to appellant which should have been applied to the mortgage debt and interest; and that interest had been charged at a higher rate than that authorized in the mortgage. In its answer to the petition, appellant admitted that the balance on the mortgage was $147,023.30 on September 1, 1965, but alleged that all rents received after that date were, by virtue of agreements, properly applied to taxes, insurance, and other debts of appellee and its successors in title. It further alleged that by agreement of appellee and other involved parties the interest charged on the mortgage was raised to 1 1/2% above the prime rate charged commercial customers from and after August
[ 225 Pa. Super. Page 4521]
, 1968. Exhibits were filed and depositions taken by both parties to support their allegations.*fn1
In its opinion supporting its action, the lower court, citing Northway Village No. 3, Inc. v. Northway Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968), correctly states the general principle that on a petition to strike a confessed judgment the court is limited to a consideration of matters which appear on the face of the record. The lower court then found that the appellant entered judgment for an amount of interest which did not correspond to the interest set forth on the face of the ...