Opinion
November 15, 1972.
December 11, 1972.
Practice — Judgments — Striking off — Opening — Irregularity or defects not appearing in the record or on the face of the judgment — Prior grant of rule to open judgment.
In this case in which it appeared that judgment had been entered by default and a petition to stay execution and to strike off the judgment was filed by defendant; that the court below stayed the execution and granted a rule to open the judgment; that the petition contained allegations of fact outside the record as excuses for failure to answer and as a defense to the action but no allegations of irregularity or defects appearing in the record or on the face of the judgment; it was Held that it was improper for the court below to strike off the judgment, but in view of the fact that the court had granted a rule to open judgment the order striking off the judgment was reversed without prejudice to the right of the court below to determine whether or not the judgment should be opened.
Before WRIGHT, P.J., JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ. (WATKINS, J., absent).
Appeal, No. 236, April T., 1972, from order and judgment of Court of Common Pleas, Civil Division, of Allegheny County, No. 3413 of 1971, in case of Sydney Klein v. George L. Ginter and Rose Marie Ginter, his wife. Order reversed and judgment reinstated.
Proceedings upon petition of defendants to strike off judgment entered by default.
Order entered striking off judgment. Plaintiff appealed.
Stewart B. Barmen, with him Sheinberg, Raphael Sheinberg, for appellant.
James Ashton, for appellees.
Argued: November 15, 1972.
On June 10, 1971, appellant took a default judgment against appellees for failure to enter an appearance or file an answer to a complaint in assumpsit. After execution was issued the appellees filed a petition entitled: "Petition To Stay Execution And For Rule To Show Cause Why Judgment Should Not Be Stricken." The court below, on September 9, 1971, stayed the execution and granted a rule to show cause why the judgment should not be opened. The petition contained numerous allegations of fact outside the record as excuses for failure to file an answer and as a defense to the action. To this petition an answer was filed. No depositions were taken and the petition and answer were argued before the lower court. On February 23, 1972, the lower court entered an order striking the judgment. No opinion has been filed in support of this order.
The judgment is regular on its face. Appellees' petition contains no allegations of irregularity or defects appearing in the record or on the face of the judgment. Absent such defects or irregularity it was improper to strike the judgment in this case. Products Corp. of Am. v. Madway Eng. Con., 210 Pa. Super. 498, 233 A.2d 630 (1967).
Since the court below originally granted a rule to show cause why the judgment should not be opened, it is possible that it was that court's intention to open rather than strike. For that reason our order in this case is filed without prejudice to the right of the lower court to determine whether or not the judgment should be opened.
The order of the court below is reversed and the judgment reinstated.