January 3, 1956
MATHEWS TRUCKING CORPORATION.
Appeal, No. 1, March T., 1956, from order of Court of Common Pleas of Beaver County, March T., 1953, No. 179, in case of Ernest Grant Young, George A. Tenos, John E. Tenos and Inez Tenos, doing business as Tenos Brothers v. Mathews Trucking Corporation. Order reversed.
Clyde P. Bailey, with him James B. Ceris, Thomas J. Dempsey and Weller, Wicks & Wallace, for appellants.
Oran W. Panner, with him Thompson Bradshaw and Bradshaw & Panner, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
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OPINION BY MR. JUSTICE ARNOLD
This was a petition to strike off a judgment entered by default. It necessarily had to do with the regularity of the record under admitted facts, and could not be based upon any equities of the situation. The court declined to strike off the judgment but opened it, and the plaintiffs appealed.
This appeal is by the plaintiffs and not by the defendant, and there is not before this Court the validity of the ruling of the court below refusing to strike off the judgment: Bowser v. Citizens Light, Heat & Power Company, 267 Pa. 483, 489, 110 A. 372; Miller v. Wayne Title & Trust Company, 154 Pa. Superior Ct. 329, 338, 35 A.2d 786.
Without the consent or even the knowledge of the parties, the court below converted the rule to strike into a rule to open, and thereupon made the rule absolute. This was error: Hamborsky v. Maggar Presbyterian Church (No. 1), 78 Pa. Superior Ct. 519. See also Nixon v. Nixon, 329 Pa. 256, 263, 198 A. 154.
Before the court could open the judgment it was necessary for the petition to set forth (1) due diligence;
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(2) the grounds for opening the judgment; and (3) the existence of a meritorious defense, by averring the facts upon which the meritorious defense is based: Planters Nut and Chocolate Company v. Brown-Murray Co., Inc., 128 Pa. Superior Ct. 239, 244, 193 A. 381. See also Britton v. Continental Mining and Smelting Corporation, 366 Pa. 82, 84, 76 A.2d 625.
In addition, the appellee in the case at bar entered only a qualified appearance, and to open the judgment he must first submit himself to the jurisdiction of the court.
As was done in Rome Sales and Service Station v. Finch, 120 Pa. Superior Ct. 402, 404, 183 A. 54, we make the following order:
Order reversed, without prejudice to the appellee to present in 20 days a petition to the court below to open said judgment; that court to dispose of the same after taking whatever testimony may be necessary.
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