M. Patricia Becket, Philadelphia, for appellant.
John J. Gallagher, Philadelphia, for appellees.
Cercone, President Judge, and Price, Van der Voort, Spaeth, Hester and Wieand, JJ. Spaeth, J., files a concurring opinion. Price, J., dissents.
[ 269 Pa. Super. Page 174]
This is an appeal from an Order of the lower court striking a default judgment. Appellant General Electric Credit Corporation (G.E.) contends there is no defect in the record which would warrant the court's action and requests that its default judgment be reinstated. We agree and now reverse.
On August 5, 1975, appellees Paul and Susan Slawek entered into an agreement with appellant G.E. to finance the purchase of a sailboat. The Slaweks executed a promissory note in favor of G.E. in the amount of $65,849.78, payable in 118 successive monthly installments. The note entitled G.E. to secure a judgment by confession against appellees "at any time before or after maturity without process . . . with or without the filing of an averment or Declaration of Default." As part of the transaction, G.E. required the Slaweks to execute a mortgage on their Philadelphia residence.*fn1 On August 28, 1975, before the first installment on the loan was due, G.E. directed the prothonotary to enter a judgment by confession against appellees for the full amount of the note. Notices were sent pursuant to Pa.R.C.P. 236.
Thirteen months later, in September, 1976, the Slaweks defaulted on an installment payment for the first time and failed to make payments for the following three months as well. G.E. sent to appellees a "Notice of Intention to Accelerate Balance of Payments and Foreclosure" in compliance with Act of January 30, 1974, P.L. 13, No. 6, § 403 (41 P.S. § 403) and instituted a complaint in assumpsit for
[ 269 Pa. Super. Page 175]
$66,026.40 on February 9, 1977. Judgment by default was taken April 26, 1977. Thereafter on June 17, 1977, appellees filed their Petition to Strike the default judgment, alleging the statutory notice of Act No. 6, supra, was required to have been given prior to the August, 1975 confession of judgment, and that such a defect on the face of the record warranted striking the judgment. The lower court agreed and, by decree dated September 8, 1977, ordered the default stricken. This appeal by G.E. followed.*fn2
A motion to strike will not be granted unless a fatal defect in the judgment appears on the face of the record. Cameron v. Great Atlantic & Pacific Tea Company, 439 Pa. 374, 266 A.2d 715 (1970); James v. Reese, 250 Pa. Super. 1, 378 A.2d 422 (1977). If the record is self-sustaining, the judgment cannot be stricken. Pattinato v. Moody, 248 Pa. Super. 32, 274 A.2d 1302 (1977); Fleck v. McHugh, 241 Pa. Super. 307, 361 A.2d 410 (1976).
The dispute both below and on appeal has centered on the applicability of Act No. 6 (41 P.S. § 101 et seq.), supra, to the facts of the instant controversy. Act No. 6 is, in large part, a consumer measure regulating maximum lawful interest rates, particularly with reference to residential mortgages, and providing protective safeguards accruing to the consumer before a foreclosure action on a residential mortgage may be instituted.*fn3 Thus, Sec. 403, entitled, "Notice of Intention to Foreclose", provides in part:
[ 269 Pa. Super. Page 176]
(a) Before any residential mortgage lender may accelerate the maturity of any residential mortgage obligation, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation, such person shall give the residential mortgage ...