No. 00323 HBG 83, Appeal from the Order entered July 22, 1983 in the Court of Common Pleas of Cumberland County, Civil Division, at No. 486, YEAR, 1981.
George E. Christianson, Lebanon, for appellant.
C. Grainger Bowman, Harrisburg, for appellees.
Wickersham, Johnson and Hoffman, JJ. Johnson, J., files a concurring and dissenting opinion.
[ 339 Pa. Super. Page 179]
Appellant contends that the lower court erred in striking a default judgment entered against appellees. We disagree and, accordingly, affirm.
On March 20, 1980, appellees made, executed, and delivered an "Obligation" bond in the amount of $353,000 payable to appellant. As security for this indebtedness, appellees mortgaged to appellant three separate properties, one each in Lebanon, Dauphin, and Cumberland Counties. Appellees thereafter failed to make payments due on the bond and mortgages, and appellant commenced actions in mortgage foreclosure against the three properties.*fn1 Appellant then proceeded to execute on the properties in this order: Lebanon, Dauphin, Cumberland.*fn2 Judgment in the Dauphin County action was entered for $341,233.24 plus interest and
[ 339 Pa. Super. Page 180]
costs, and appellant purchased the property at a sheriff's sale on July 9, 1981 for $20,116.49.*fn3 On March 17, 1982, judgment by default was taken by appellant in Cumberland County in the total amount of $227,969.02 (principal, interest, and attorneys' fees),*fn4 and a writ of execution was issued on the same day. On June 9, 1982, appellees filed a motion to stay the sheriff's sale, and a rule was issued against appellant to show cause as to why the sale should not be stayed. Appellant filed an answer to the motion and rule on June 15.*fn5 On June 22, appellees filed a petition to strike and/or open judgment, and a rule was issued the same day. Appellant filed its answer to that petition on July 26. Argument was held before the lower court en banc on June 8, 1983, and on July 22, the court ordered the Cumberland County judgment struck. This appeal followed.
"[A] petition to strike a judgment is a common law proceeding and operates as a demurrer to the record and . . . will not be granted unless a fatal defect in the judgment appears on the face of the record." Township of Middletown v. Fried and Gerber, Inc., 308 Pa. Superior Ct. 161, 164, 454 A.2d 71, 72 (1982). "A judgment may be stricken off because it appears upon the face of the record to have been entered in violation of a valid statutory provision." 12 Standard Pa. Practice 2d § 71:181 at 307 (1983) (footnote omitted). Because appellant has not complied with the
[ 339 Pa. Super. Page 181]
Deficiency Judgment Act, 42 Pa.C.S.A. § 8103, we hold that the judgment ...