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STEIGLEMAN v. SCIOTTO (03/18/57)

March 18, 1957

STEIGLEMAN
v.
SCIOTTO, APPELLANT.



Appeal, No. 35, Jan. T., 1957, from order of Court of Common Pleas of Blair County, Oct. T., 1952, No. 13, in case of Samuel E. Steigleman to use v. A. Sciotto et al. Order affirmed.

COUNSEL

T. Dean Lower, for appellant.

Leo C. Mullen, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 388 Pa. Page 113]

OPINION BY MR. JUSTICE COHEN

The issue presented by this appeal is whether the court below exercised its discretion properly in refusing to open a judgment.

On November 13, 1952 a judgment by confession was entered against the appellant. On October 4, 1953 the judgment was assigned to the appellee, who on February 15, 1955 issued a sci. fa. to revive.

Appellant was served with the sci. fa. but entered no appearance, so that on March 28, judgment on the sci. fa. was entered against him.

[ 388 Pa. Page 114]

On July 5, execution was issued on the judgment and on July 21, a petition for a rule to open judgment was filed by the appellant. The petition was dismissed and an amended petition was filed, which on March 21, 1956 the court dismissed.

Appellant contends that the allegations in his amended petition present matters which should impel the submission of his cause to a jury, and which, if believed, would constitute a full and sufficient defense.

In Berkowitz v. Kass, 351 Pa. 263, 264, 40 A.2d 691 (1945) we said: "Appellant has confused the controlling principles of law. Courts are not required to open judgments merely because the defendant produces evidence which, if true, would constitute a defense. ... An application to open judgment is addressed to the court's sound discretion, and, on ...


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