Opinion
October 11, 1965.
November 9, 1965.
Appeals — Review — Scope — Petition to open judgment — Court below — Discretion.
A petition to open judgment is an appeal to the equitable powers of the court, and its disposition of the petition will not be disturbed on appeal unless a clear abuse of discretion is shown.
Mr. Justice MUSMANNO dissented.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 233, March T., 1965, from order of Court of Common Pleas of Allegheny County, July T., 1962, No. D.S.B. 5230, Ex. July T., 1962, No. 913, in case of Bernard R. Nilles and Mary Elizabeth Nilles, his wife v. Frank R. Guiden, individually and doing business as Arrow Cleaners. Order affirmed.
Petition to open judgment entered by confession.
Petition dismissed, opinion by FIOK, J. Defendant appealed.
Charles G. Notari, for appellant.
David R. Levin, for appellee.
Appellant petitioned the court below for a rule to show cause why a judgment entered against him upon a warrant of attorney contained in a lease should not be opened.
A rule was granted on appellees to show cause why the judgment should not be opened and, after depositions, interrogatories and oral argument, the court below discharged the rule, thereby giving rise to this appeal.
A petition to open judgment is an appeal to the equitable powers of the court, and its disposition of the petition will not be disturbed on appeal unless a clear abuse of discretion is shown. Thomasik v. Thomasik, 413 Pa. 559, 198 A.2d 511 (1964); Girard Tr. Corn Exch. Bank v. Sweeney, 413 Pa. 203, 196 A.2d 310 (1964); Univ. B. Sup., Inc. v. Shaler H. Corp., 409 Pa. 334, 186 A.2d 30 (1962).
The court below found that the primary reason advanced for opening the judgment was predicated upon appellees' alleged failure to perform some future act and, even if true, did not require the opening of the judgment. Our review of the record fails to disclose any abuse of discretion or error of law and we will not disturb the order of the court below.
Order affirmed.
Mr. Justice MUSMANNO dissents.