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COMMONWEALTH NATIONAL BANK v. HANS BOETZELEN AND ERNST A. BOETZELEN (01/25/85)

filed: January 25, 1985.

COMMONWEALTH NATIONAL BANK
v.
HANS BOETZELEN AND ERNST A. BOETZELEN, APPELLANTS



No. 00334 HARRISBURG, 1983, Appeal from an Order Entered July 13, 1983, in the Court of Common Pleas, Civil Division, of York County, No. 1491 August Term, 1971.

COUNSEL

Stephen M. Greecher, Jr., Harrisburg, for appellants.

Daniel E. Shoemaker, York, for appellee.

Wickersham, Watkins and Hester, JJ. Wickersham, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 338 Pa. Super. Page 239]

This action involves a motion to strike a judgment entered against appellants Hans and Ernst Boetzelen. The judgment was based upon a Guaranty Agreement containing a warrant of attorney. It is from the denial of appellants' motion that this appeal ensued.

Appellants are the President and Vice-President respectively of Ernie Fence Supply Company. On January 22, 1971, appellants, in their capacities as corporate officers, signed a note for $46,788.48 with Commonwealth National Bank, appellee herein. In September, 1971, at appellee's request, appellants signed a Guaranty Agreement, the subject of the within appeal.

The Guaranty Agreement was recorded in the office of the Prothonotary of York County against appellants individually on October 1, 1971. Although the loan at that time was not in default, judgment was entered for the face amount of the Agreement. Immediately after appellants discovered that judgment had been entered against them, they filed a motion to strike. The lower court denied said motion on July 13, 1983.

Appellants raise two arguments on appeal. First, they contend that the lower court erred in refusing to strike the judgment entered against them as individuals when they signed the Agreement in their corporate capacities. Second, they aver that it is impossible to ascertain from the face of the Agreement whether appellants were in default

[ 338 Pa. Super. Page 240]

    on the amount actually owed. Therefore, the mere filing of the Agreement without more was improper, and the judgment must be stricken.

Initially, we note that a motion to strike a judgment is a common law proceeding and operates as a demurrer to the record. Township of Middletown v. Fried & Gerber, 308 Pa. Super. 161, 164, 454 A.2d 71, 72 (1982). Unless a fatal defect appears on the face of the record, a motion to strike a judgment will not be granted. Maiorana v. Farmers & Merchants Bank, 319 Pa. Super. 338, 466 A.2d 188 (1983). Consequently, matters dehors the record will not be considered. Bethlehem Steel Corp. v. Tri-State ...


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