No. 610 Pittsburgh, 1980, Appeal from the Order of June 6, 1980 in the Court of Common Pleas of Erie County, Pennsylvania No. 1890-J-1975
Kenneth D. Chestek, Erie, for appellant.
John M. Wolford, Erie, for appellees.
Cercone, President Judge, and DiSalle and Shertz, JJ. Cercone, President Judge, files a concurring statement. This decision was rendered prior to the expiration of DiSalle and Shertz, JJ., commission of office.
[ 295 Pa. Super. Page 289]
The question presented by this appeal is whether a confessed judgment may be stricken, due to defective verification of a complaint filed pursuant to Pa.R.Civ.P. 2952. We hold that it may not, and hence reverse the order of the court below.*fn1
On January 3, 1975, Appellees signed two notes, payable on demand, evidencing a debt incurred for work performed by plaintiff in the Spartan Inn Motel. One note had been fully paid and part payment had been made on the second when, on April 25, 1975, Appellant filed a form "Complaint in Judgment" (Erie County Prothonotary Form 85-1 & 85-2) together with the second note which contained a confession of judgment.*fn2 The prothonotary promptly mailed notice of judgment, in the amount of $20,000.00, to Appellees and additional partial payments were made subsequent to entry of the judgment. Approximately four years later, on February 22, 1979, Appellant sought to execute on the judgment for the total claimed indebtedness of $11,066.66 plus costs. Appellees thereupon filed a Petition to Strike and/or Open the Confessed Judgment. The court below, concluding that the petition to open was not timely
[ 295 Pa. Super. Page 290]
filed, refused to open the judgment. However, the court below granted the petition to strike on the ground that the verification to the complaint was defective inasmuch as it was made by counsel, rather than by Appellant.
A motion to strike a default judgment, as opposed to a petition to permit a defense, may not be granted unless a fatal defect appears on the face of the record. Curcio v. Diluzio, 245 Pa. Super.Ct. 578, 369 A.2d 778 (1977); Fourtees Co. v. Sterling Equipment Co., 242 Pa. Super.Ct. 199, 363 A.2d 1229 (1976). If the defect is one that can be remedied by an amendment of the record or other action, nunc pro tunc, the judgment should not be stricken off. 7 Standard Pa. Practice, Chapter 30, § 169 (1961).
The record defect, upon which the court below granted the petition to strike, was Appellant's failure to attach to its complaint a "verification in accordance with the rules relating to the action in assumpsit." Pa.R.Civ.P. 2952(j). Pa.R.Civ.P. 1024, the applicable rule in assumpsit, provides inter alia:
(a) Every pleading containing averments of facts not appearing of record in the action or containing denials shall be verified on oath or affirmation that the averments or denials are true upon the affiant's personal knowledge or information and belief.
(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his ...