Appeal, No. 134, Jan. T., 1949, from order of Court of Common Pleas of Northumberland County, May T., 1948, No. 115, in case of Walter B. Vallish et ux. v. Mitchell Rapoport. Order reversed.
Isadore Rapoport, with him John A. Harter and Groman & Rapoport, for appellant.
John L. Pipa, Jr., for appellees.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE LINN
Plaintiffs, as lessors of a five-story business building in Mt. Carmel, Pennsylvania, entered judgment by amicable action against the lessee (a) in ejectment and (b) for $2,400 rent matured for the unexpired term in consequence of the defaults alleged in the amicable action. The judgment was entered in February, 1948. The lease provided a term of five years from October 25, 1943, with the right to renew for an additional term of five years.
On November 29, 1948, the lessee defendant petitioned for and obtained a rule to show cause why the judgment in ejectment should not be opened with leave to defend; the rule was made returnable December 6, 1948. In this petition he denied the lessors' averments of default and averred that, since the entry of the judgment, he had paid the sum of $2,400, the rent that would accrue to the end of the term, for which the judgment had been entered.
In proceedings to open judgment the practice by petition and answer is well established. "When the answer was filed, defendant had the choice of taking depositions, limited, of course, to the issues made by the pleadings (Fisher v. King, 153 Pa. 3 [25 A. 1029 (1893)]; Bauer v. Hill, 267 Pa. 559, 563 [110 A. 346 (1920)], and then having the application heard on petition, answer and depositions; or of having it heard on petition and answer alone, in which event the averments of the answer, so far as they were responsive to those of the petition, would have to be taken as true: Kelly et al. v. International Clay Products Co., 291 Pa. 383, [140 A. 143 (1928)]. This is the established practice, entirely aside from the applicable rule of the court below, which was quoted in appellee's brief." M.A. Long Co. v. Keystone Portland Cement Co., 302 Pa. 308, 315-316, 153 A. 429 (1931). The issue to be tried should be made by the petition and the answer: State Camp etc. v. Kelley et al., 267 Pa. 49, 110 A. 339 (1920); Miller v. Mastrocola et al., 133 Pa. Superior Ct. 210, 2 A.2d 550 (1938); Warren Sav. Bank & T. Co. v. Foley, 294 Pa. 176, 144 A. 84 (1928).
Instead of proceeding in what way with defendant's application to open the judgment pursuant to Rule 209 of the Rules of Civil Procedure, the court on the return day of defendant's rule, granted a motion on that day made by the plaintiffs, to discharge defendant's rule. This appeal is from that order discharging defendant's rule to open the judgment.
Our attention has not been called to anything in the record, and we have found nothing in it, and would justify the failure to ...