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ANDERSON CONTRACTING COMPANY v. DAVID DAUGHERTY AND PEARL CURRIE (12/28/79)

filed: December 28, 1979.

ANDERSON CONTRACTING COMPANY, A CORPORATION,
v.
DAVID DAUGHERTY AND PEARL CURRIE, APPELLANTS



No. 525 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, at No. GD 75-28330, Sur. No. GS75-28329, Civil Division.

COUNSEL

James M. Shilliday, Pittsburgh, for appellants.

Gary Kalmeyer, Pittsburgh, for appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.

Author: Cercone

[ 274 Pa. Super. Page 15]

This appeal finds its origin in an amicable action in ejectment instituted by plaintiff-appellee, Anderson Contracting Company, against defendant-appellants, David Laugherty and Pearl Currie. The action, which was commenced pursuant to a warrant of attorney contained in an installment land contract entered into by the parties, arose as a result of appellants' failure to make prompt installment payments under the land contract. A judgment in ejectment was confessed against appellants and execution proceedings

[ 274 Pa. Super. Page 16]

    initiated. Presently before us is an appeal from the order of the court below denying appellants' petition to cure default, to stay execution, and to open or strike the judgment.

The facts are as follows. On March 26, 1974, appellant-vendees entered into an installment land contract with appellee-vendor for the purchase of a residential dwelling located in Allegheny County. Under the terms of the contract, appellants agreed to pay appellee the sum of $24,567.98 as follows: $367.98 on the signing of the contract and the balance of $24,200.00, together with interest at 8 1/4% on the unpaid balance, in monthly installments of $181.81 until paid in full. Although appellants took immediate possession and assumed all the burdens and incidents of ownership, the contract provided that the deed to the premises would not be delivered until appellants paid all sums due. The contract further provided that in the event appellants failed to make timely payment and continued in default for thirty days, appellee could then confess judgment against them in an amicable action of ejectment.

Appellants failed to make their monthly payment in September of 1975 and appellee confessed judgment against them in December of 1975. Appellants subsequently cured this default and appellee did not execute. Appellants next defaulted in June of 1976. Once more, however, they cured their default prior to execution and remained in possession. In January of 1977, appellants defaulted for the third time. This time, however, appellants filed a petition to open or strike the confessed judgment. On May 13, 1977, the petition was dismissed pursuant to an agreement between the parties whereby appellee agreed not to execute on the judgment prior to July 13, 1977, if appellants paid $400.00 at the date of agreement and an additional $300.00 prior to June 13, 1977. On July 29, 1977, appellants filed a petition alleging that appellee had refused to accept their payment of a sum sufficient to cure all prior default under the contract; and, therefore, requested the court to stay execution, to direct appellee to accept the cure, and to open or

[ 274 Pa. Super. Page 17]

    strike the original confessed judgment. The petition was denied and this appeal ensued.

Appellants contend that a vendee in a land sale installment contract for the purchase of a residential dwelling has the right to cure a default thereunder in accordance with the provisions of Act No. 6 of January 30, 1974, P.L. 13, 41 P.S. § 101 et seq. (Supp.1979). Under Section 404(a) of Act No. 6, supra, 41 P.S. § 404(a), a default may be cured "at any time at least one hour prior to the commencement of bidding at a sheriff sale or other judicial sale on a residential mortgage obligation . . . ." Appellees, on the other hand, maintain that the instant transaction is governed by the "Installment Land Contract Law," Act of June 8, 1965, P.L. ___, No. 81, 68 P.S. § 901 et seq. (1965). Thus, the issue we must resolve is whether a vendee in land sales contract of the kind we have described should be ...


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