No. 1514 Philadelphia 1981, Appeal from the Order of May 14, 1981, Court of Common Pleas, Philadelphia County, Trial Division, Law at No. 2192 May Term, 1980.
Elliott B. Platt, Philadelphia, for appellants.
Robert Cherwony, Philadelphia, for appellee.
Johnson, Montemuro and Montgomery, JJ.
[ 310 Pa. Super. Page 528]
Appellants Ralph and Geraldine Bryant appeal from an Order denying their Petition to Strike or Open a default judgment. For the following reasons, we vacate the Order and remand.
Appellee corporation filed a complaint in assumpsit in May of 1980 alleging breach of the terms of two separate loan agreements. The first count of the complaint alleged breach of the terms of a promissory note in the amount of $5,633.42 executed by both Appellants. Count two alleged breach of the terms of a second note in the amount of $2,000.00 executed by Ralph Bryant only. The note executed by both Appellants noted collateral as "shares and real estate". Preliminary objections were filed on behalf of Appellants and denied with Appellants granted leave to file an answer within twenty days.
Appellee praeciped for a default judgment on December 8, 1980, after Appellants failed to file an answer. Appellants' Petition to Strike or Open was filed on December 24, 1980 and denied on May 14, 1981.
Appellants raise three issues on appeal: (1) did the trial court err in denying the Petition to Strike where Appellees failed to comply with the notice provisions of 41 P.S. § 101 et seq.*fn1 involving residential mortgage obligations, (2) did the trial court err in refusing to open the default judgment where Appellants had adequately proved all elements necessary for the opening of a default judgment, including Appellee's
[ 310 Pa. Super. Page 529]
failure to give notice to Appellants pursuant to Pa.R.C.P. 237.1 and (3) did the trial court err in ruling on Appellants' Petition when neither party had taken any action under Pa.R.C.P. 209.
Because of our determination that the Order denying Appellants' Petition must be vacated on the grounds of Pa.R.C.P. 209, we need not address the ...