concurring:
Although I concur in the majority’s conclusion that Section 9 of the Act of 1705 was erroneously applied, I do so for reasons other than those found controlling by the majority. I would also hold that, while appellant did not err in bringing a cause of action in assumpsit, the cause of action cannot properly be predicated on a breach of contract theory-
Appellant’s mother, Rose Startari, owned certain real estate at 5000 Ladora Street until her death on October 13, 1966. On May 7, 1956, she executed a mortgage on the real estate to secure a loan of $3,600.00 from Hibernian Savings and Loan Association, predecessor to appellee, Concord-Liberty Savings and Loan Association. Simultaneously, Mrs. Startari executed a bond containing a warrant of attorney to confess judgment, should she default on the mortgage payments.
Mrs. Startari died intestate on October 13, 1966. Several heirs, including appellant, Veronica Mancine, survived her. The heirs jointly conveyed their interest in the real property to appellant on April 24, 1967. Accordingly, appellant took title subject to the mortgage held by appellee, Concord-Liberty Savings and Loan Association (hereinafter referred to as Concord-Liberty). Veronica Mancine later defaulted on the mortgage payments and, on September 18, 1969, Concord-Liberty wrongfully confessed judgment against Rose Startari, the decedent, based on her warrant of attorney.1 A writ of execution was issued the same day judgment was entered and, on November 3, 1969, Concord-Liberty bought the property at a sheriff’s sale for $1,699.52, the amount of costs and taxes.
*272Two separate actions arose out of the wrongful confession of judgment. First, appellant instituted an action in assumpsit on February 3,1975. By complaint and an amended complaint appellant sought damages for the unlawful entry of judgment, the wrongful, malicious, and fraudulent dispossession of appellant from her home, the loss of her personal belongings, the rental value of her home, the injury to appellant’s reputation, and for exemplary and for punitive damages.
Following the institution of appellant’s assumpsit action, an estate was raised for Rose Startari and Jerry Mancine was appointed administrator. The administrator petitioned to set aside the judgment on the grounds that the warrant of attorney expired upon Mrs. Startari’s death, that the claim should have been presented to the estate of Rose Startari, and that the estate of Rose Startari was no longer the obligor. On February 25, 1976, while appellant’s assumpsit action was still pending, the trial court granted the estate’s petition and ordered that the judgment be set aside.2
Appellant’s assumpsit action proceeded to trial on January 18, 1979, at which time the parties stipulated to the facts pertaining to liability. Defendant-appellee then moved to limit damages as prescribed by Section 9 of the Act of 1705, which provides in pertinent part:
If any of the said judgments, which do or shall warrant the awarding of said writs of execution . . . shall at any time hereafter, be reversed for any error or errors, then . . . none of the said lands . . . shall be restored, nor the sheriffs sale or delivery thereof avoided, but restitution, in such cases, only of the money or price for which such lands were or shall be sold.
Act of 1705, Sm.L. 57, Sec. 9; 12 P.S. 2448 and 21 P.S. 795.
The court granted appellee’s motion and directed a verdict for appellant for the amount of $1,699.52, the sale price of *273the property. Thereafter, appellant filed a motion for a new trial,3 which the court denied.4 This appeal is from the judgment entered on the verdict.
Appellant advances three grounds on appeal. First, appellant argues that Section 9 of the Act of 1705 was inapplicable at the time of trial because it was repealed before that date; second, that the Act was inapplicable because appellee failed to comply with Section 6 of the Act which requires that the real party in interest be served with notice of the proceeding; and third, that she should have been permitted to prove damages sounding in tort in the assumpsit action.
Appellant’s contention that Section 9 of the Act of 1705 was inapplicable because it was repealed before trial is meritless. The Judicial Code provides, in part, that “[t]he repeal of any civil provisions of a statute shall not affect or impair any act done, or right existing or accrued, or affect any civil action pending to enforce any right under the authority of the statute repealed.” Act of Dec. 6,1972, P.L. 1339, § 3; 1 Pa.C.S.A. § 1976(a).5 Because all acts giving *274rise to appellant’s cause of action, including the institution of the assumpsit action, occurred before the Act was repealed,6 the repeal of the Act of 1705 has no bearing on the outcome of the case.
Appellant also argues that Section 9 is inapplicable because appellee failed to give appellant notice of the foreclosure proceedings but, instead, entered judgment against the decedent on an invalid warrant of attorney. The majority reasons that the judgment was void because it was entered on the authority of a power of attorney issued by a dead person and concludes, therefore, that Section 9 of the Act is inapplicable because it only applies to voidable, not void, judgments. To be sure, the law is well-settled that the death of a debtor revokes the warrant of attorney to confess judgment and that any judgment entered on the warrant of attorney after the debtor’s death will be stricken off. First Federal Savings and Loan Assoc. of Greene County v. Porter, 408 Pa. 236, 183 A.2d 318 (1962); Kountz v. National Transit Co., 197 Pa. 398, 47 A. 350 (1900); Kummerle v. Cain, 82 Pa.Superior Ct. 528, (1924); Stevenson v. Virtue, 13 Pa.Superior Ct. 103 (1900). The majority is also correct in stating that Section 9 has been interpreted as applying to voidable judgments only, and not to void judgments.7 Hecker v. Haak, 88 Pa. 238 (1879); Gibson v. Winslow, 38 Pa. 49 *275(1861); Caldwell v. Walters, 18 Pa. 79 (1851); Ness v. Van Swearingen, 7 S & R 196. However, the majority fails to explain why the judgment in this case is void as against appellant. The law cited by the majority in support of its conclusion states merely that a judgment entered on a warrant of attorney after the obligor’s death will be stricken off. That the judgment should be stricken does not necessarily mean it is void.8
The better reason for finding Section 9 of the Act inapplicable is that appellee failed to give notice of the foreclosure proceedings to appellant who, being the true owner, was the real party in interest. Section 6 of the Act of 1705 provides, in pertinent part, that
[wjhere default or defaults have been or shall be made or suffered by any mortgagor or mortgagors of any lands, tenements or other hereditaments within this province, or by his, her or their heirs, executors, administrators and assigns, of or in payment of the mortgage money, or performance of the condition or conditions which they or any of them should have paid or performed, or ought to pay ... that in every such case, it shall and may be lawful to and for the mortgagee or mortgagees, . .. and his, her and their heirs, executors, administrators or assigns, at any time after the expiration of twelve months next ensuing the last day whereon the said mortgage money ought to be paid, ... to sue forth a writ or writs of scire facias, which the clerk of the court of common pleas for the county or city where the said mortgaged lands or hereditaments lie, is hereby empowered and required to make out and dispatch, . . . requiring him, ... to make *276known to the mortgagor or mortgagors, his, her or their heirs, executors or administrators, that he or they be and appear before the magistrates, judges or justices of the said court or courts, to show if anything he or they have to say wherefore the said mortgaged premises ought not to be seized and taken in execution for payment of the said mortgage money, with interest, or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the breach or nonperformance of the said conditions. ...
Act of 1705, 1 Sm.L. 57, § 6, 21 P.S. § 791. The procedure for mortgage foreclosure is a creature of statute and, therefore, the requirements must be strictly followed. Federal Land Bank of Baltimore v. King, 294 Pa. 86, 143 A. 500 (1928).
Clearly, Concord-Liberty failed to give appellant notice as is required by the Act.9 Moreover, Concord-Liberty did not proceed by a writ of scire facias10 as required by Section 6. Rather, appellee improperly proceeded by writ of fieri facias,11 see Act of May 6, 1929, P.L. 1557, § 1; 1951, Sept. *27726, P.L. 1450, No. 352, § 1; 21 P.S. § 804, and confessed judgment on the invalid warrant of attorney. Having failed to comply with the strict mandates of the Act by failing to give appellant notice and an opportunity to defend, Concord-Liberty cannot now use Section 9 of the Act to its advantage. For that reason, I concur in the result reached by the majority to remand this case to be tried without application of Section 9 of the Act of 1705.
Finally, appellant argues that she correctly brought her cause of action in assumpsit because, as she states, the action arose from appellee’s bréach of the terms of the mortgage. Furthermore, appellant submits that she is entitled to damages sounding in tort, for the tortious breach of contract. I disagree.
Although appellant should be permitted to maintain the cause of action in assumpsit, it cannot be predicated on a breach of contract theory. The record reveals, by appellant’s own admission, that she breached the terms of the mortgage by defaulting on the payments. Although appellant is correct that appellee wrongfully confessed judgment and issued execution, it is axiomatic that she cannot claim that appellee breached when, in fact, it was appellant who breached.
Because appellee did not breach a contract, appellant cannot allege a tortious breach and, therefore, cannot claim damages sounding in tort. Thus, she is limited to damages in assumpsit.
Accordingly, I would remand this case to permit appellant to prove damages in assumpsit, not limited by Section 9 of the Act of 1705.
. The judgment, entered by confession based on the warrant of attorney executed by the decedent, was void for the reasons discussed herein.
. The court did not determine in that action whether the judgment was void or voidable. That determination was unnecessary to resolve the estate’s petition to strike the judgment. The issue whether the judgment was void or voidable arose during Veronica Mancine’s proceedings, which is the subject of this appeal.
. In her motion for a new trial, appellant argued that the court erred in: (1) limiting damages as prescribed by the Act of 1705, Section 9, (2) denying recovery of damages sounding in tort in an assumpsit action and (3) refusing to allow her to prove her offer of proof of damages.
. In denying appellant’s motion, the court reasoned that the judgment was voidable rather than void, and that the Act properly applies to voidable judgments. Next, the court declared that appellant, Veronica Mancine, lacked standing to collaterally attack the voidable judgment because only void judgments may be collaterally attacked by third parties. This conclusion is illogical in light of the fact that the court not only exercised jurisdiction over the matter, but also found for appellant. Finally, the trial court held that appellant was not entitled to recover damages sounding in tort in an assumpsit action.
. Subsection (a) of 1 Pa.C.S.A. § 1976 continues as follows:
Such action may be proceeded with and concluded under the statutes in existence when such action was instituted, notwithstanding the repeal of such statutes, or such action may be proceeded with and concluded under the provisions of the new statute, if any, enacted.
*274Section 9 of the Act of 1705 was repealed June 27, 1978 by the Act of 1978, P.L. 202, No. 53, § 2(a)[7], The disposition of this section to 42 Pa.C.S.A. § 1722 and § 5105(f) reveals that no new statute was enacted to replace the former. Therefore, Section 9 would have been applicable, except for other reasons stated herein. See text infra at 751-753.
. Appellant’s action went to trial on January 18, 1979. The Act of 1705 was repealed on June 27, 1978. However, the events giving rise to appellant’s claim occurred before June 27, 1978.
. The purpose of Section 9 of the Act of 1705 is to protect the purchaser’s title in the event of a reversal of judgment under which the sale was made. However, this protection applies only when the judgment is reversed for irregularities or errors. When the judgment under which the sale takes place is not merely voidable, but void, the purchaser’s title is not protected, and Section 9 is deemed inapplicable. See Caldwell v. Walters, 18 Pa. 79 (1851). See also Kinter v. Jenks, 43 Pa. 445 (1863); Gibson v. Winslow, 38 Pa. 49 (1861); Wilson v. McCullough, 19 Pa. 77 (1852).
. A judgment entered by confession on the authority of a bond accompanying a simple promise to pay money, after the death of the promisor and without an action brought in the promisor’s lifetime is irregular and will be vacated on the application of the legal representatives or heirs of the decedent. Lanning v. Pawson, 38 Pa. 480 (1861); Kountz v. National Transit Co., 197 Pa. 398, 47 A. 350 (1900); Kummerle v. Cain, 82 Pa.Superior Ct. 528 (1924); Sleeper v. Hickey, 26 Pa.Superior Ct. 59 (1904). However, a judgment is not void merely because it is erroneous and subject to be set aside by the court which rendered it or to be reversed by an appellate court. Stevenson v. Virtue, 13 Pa.Superior Ct. 103 (1900).
. Appellee’s failure to give notice was also in derogation of a fundamental principle of law.
[w]here the purpose of the proceeding is to obtain a judgment affecting interests in things, notice in some form must be given to the persons whose interests are affected, and they must be given an opportunity to protect their interests. Otherwise the judgment is void as to such persons.
Restatement, Judgments, § 6, Comment g (emphasis added).
. A writ of scire facias is “[a] judicial writ, founded upon some matter of record, such as a judgment or recognizance and requiring the person against whom it was brought to show cause why the party bringing it should not have advantage of such record ...” Black’s Law Dictionary 1513 (4th Ed. 1968).
. A writ of fieri facias is, in practice, “a writ of execution commanding the sheriff to levy and make the amount of a judgment from the goods and chattels of the judgment debtor.” Black’s Law Dictionary 754 (4th Ed. 1968).
This process is codified at Section 804 of Title 21 of Purdon’s which states:
No inquisition shall be necessary in connection with the sale of a real estate by the sheriff, upon a writ of fieri facias, issued upon a judgment entered upon a bond or promissory note accompanying a *277mortgage, secured upon the real estate to be sold; and the sheriff may, after giving notice in the manner now provided by law in cases of sales under writs of venditioni exponas, proceed to sell such real estate upon the said writ of fieri facias without any other writ whatever.
Act of May 6, 1929, P.L. 1557 § 1; 21 P.S. § 804.
Appellees proceeded by writ of fieri facias, which was improper and constituted void process because the warrant of attorney upon which it proceeded was invalid.