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FOSTER v. NIXON. (03/22/61)

March 22, 1961

FOSTER, APPELLANT,
v.
NIXON.



Appeal, No. 444, Oct. T., 1960, from order of Municipal Court of Philadelphia County, July T., 1959, No. 2638, in case of Alice Foster, administratrix of estate of Henry Founchious, deceased, v. Felton Nixon. Order reversed.

COUNSEL

B. Vetri, with him Edward M. Snyder, and Snyder & Lowenschuss, for appellant.

No argument was made nor brief submitted for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 194 Pa. Super. Page 573]

OPINION BY MONTGOMERY, J.

This appeal is from the order of the court below opening a judgment by default in a trespass action. On July 3, 1959, Henry Founchious, while crossing a

[ 194 Pa. Super. Page 574]

    street in the City of Philadelphia, was struck by defendant's automobile and sustained serious injuries. The following day, Founchious retained counsel to represent him, who wrote defendant on July 7, 1959, requesting him to stop at his office so that the matter might be adjusted. Defendant did nothing pursuant to this letter.

On July 17, 1959, at a hearing in the Philadelphia Traffic Court, defendant was found guilty of reckless driving and was fined. Plaintiff's counsel again contacted him on this date and, receiving no reply, instituted suit on July 22, 1959. Defendant was served properly by the sheriff but no appearance or answer was filed. Plaintiff entered judgment by default, placed the matter on the non-jury trial list for assessment of damages and notified the defendant of this action by letter.

On October 26, 1959, plaintiff died as a result of the injuries sustained in the accident.

On May 7, 1960, defendant was notified by the clerk of the Municipal Court that a hearing was scheduled for May 27, 1960, to assess damages. On May 26, 1960, defendant, by counsel, filed a petition to open the judgment. The petition averred that on July 21, 1959, the day before the complaint was filed, plaintiff gave defendant a release in full settlement of all claims arising from the accident in consideration of $50.00 paid by defendant. The release was allegedly executed by the making of an "X" thereon and acknowledged before a notary public. On July 18, 1960, on this allegation, the petition was granted and judgment opened. This appeal followed.

A petition to open judgment is addressed to the sound discretion of the court of first instance which will be reversed only upon demonstrated and clear abuse of discretion. Kazanjian v. Cohen, 175 ...


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