Appeal, No. 327, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1958, No. 3231, in case of Leonardo Minetola v. Carmela Samacicio. Order affirmed.
John A. M. McCarthy, with him Ralph C. Donohoe, for appellant.
Peter B. Scuderi, with him Montemuro & Scuderi, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
The lower Court wisely discharged a rule to show cause why the judgment taken by default should not be stricken off because there were no fatal defects apparent on the face of the record: McGary v. Lewis, 384 Pa. 173, 180-181, 119 A.2d 497; Nixon v. Nixon, 329 Pa. 256, 198 A. 154; Wisor v. Wisor, 175 Pa. Superior Ct. 233, 103 A.2d 498. The lower Court likewise discharged the rule to show cause why the judgment should not be opened. From this last Order, the petitioner appealed.
Plaintiff filed a summons and a Complaint in Equity on February 19, 1959. Plaintiff took judgment by default on March 20, 1959, when, more than twenty days after service of his complaint, no answer was filed. The trial Court, on March 31, 1959, after a petition
sworn to by defendant on March 24, 1959, granted a rule to open the judgment. Defendant's petition alleged that she was not, at the time of service and is not now, a resident of 2321 South 15th Street, Philadelphia, the address where the Sheriff had served a copy of the complaint on "an adult member of the family of said defendant, who stated that his relationship to said defendant is that of son." Defendant further alleged that she had been married, and at the time of service was living with her husband at a different address from that stated in the complaint, where the Sheriff had served the copy. Defendant further alleged that when she acquired knowledge of the existence of the action it was a few days prior to expiration of the twenty days allowed for filing an Answer, and that she had a defense to the action, which she set forth in an Answer which was attached to her petition.
The rule applicable to a petition to open judgment was recently reiterated in Ehnes v. Wagner, 388 Pa. 102, 130 A.2d 171 (page 104):
"A petition to open judgment is addressed to the sound discretion of the court below, whose action will not be reversed on appeal unless an abuse of that discretion appears: Gagnon v. Speback, 383 Pa. 359, 362, 118 A.2d 744. To open judgment, the petitioner must not only aver a valid defense*fn1 but he must also establish equitable considerations which impress the court with the need for relief: Lened Homes, Inc. v. Philadelphia Department of Licenses and Inspections, 386 Pa. 50, 53, 123 A.2d 406...."
In the instant case, depositions in support of the rule were taken under oath which established that petitioner at the time of service was not a resident at 2321 South 15th Street, the domicile of her family ...