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SMITH v. DALE. (11/14/61)

November 14, 1961

SMITH, APPELLANT,
v.
DALE.



Appeal, No. 118, March T., 1961, from order of Court of Common Pleas of Allegheny County, July T., 1959, No. 3315, in case of Warren C. Smith, trading and doing business as Spray Bake Finishing Co., v. David E. Dale, trading and doing business as Furniture Associated. Order affirmed.

COUNSEL

Thomas P. Geer, with him Ryan, Newman, Geer and Goldring, for appellant.

Paul E. Moses, with him James C. Evans, and Evans, Ivory & Evans, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Eagen

[ 405 Pa. Page 294]

OPINION BY MR. JUSTICE EAGEN.

This is an action in assumpsit on an implied contract for the use and occupancy of premises owned by the plaintiff, for services rendered and for use of equipment and facilities furnished. Suit was instituted on June 19, 1959, and the complaint served on June 25, 1959. Judgment for want of an appearance and failure to file an answer was entered on January 5, 1960.

The defendant petitioned the court to open the judgment on May 19, 1960, and a rule to show cause was granted returnable to June 1, 1960. Attached to the petition was a proposed answer to the complaint containing, if true, a complete meritorious defense to the claim of the plaintiff and, in addition, a counterclaim. An answer to the petition was filed on May 26, 1960.

Counsel for the parties appeared in court on June 1, 1960, before Judge NIXON who, by assignment, was presiding in motion court. Counsel for the defendant requested the opportunity of taking depositions in support of the factual allegations contained in the petition to open the judgment. This was refused and the presiding judge entered an order discharging the rule to show cause. No reasons for this action appear of record. On the same day, counsel for the defendant renewed his request to Judge NIXON that he be permitted to submit depositions in support of the request to open the judgment, and asked for a rehearing on the petition. The judge directed that the issue be placed on the general argument list for consideration by a full court. The issue was argued before a court en banc (including Judge NIXON) on June 7, 1960. Depositions on behalf of the defendant were taken on June 13, 1960, and submitted to the court. The court en banc entered a unanimous order and opinion on December 2, 1960, vacating the original order discharging the rule to show cause and directed that the rule be made absolute. The plaintiff appealed from this order on March 1, 1961.

[ 405 Pa. Page 295]

It is the prime contention of the plaintiff that the order of June 1, 1960, discharging the rule to show cause was a final order, a definitive judgment from which the defendant had the right to appeal; that no appeal having been taken the order was conclusive and the court en banc abused its power and authority in giving further consideration to the request to open judgment.

Under the Act of May 20, 1891, P.L. 101, § 1, 12 PS § 1100, in all cases involving the application for the opening, vacating and striking off of judgments of any kind, a party aggrieved by the decision of the court may appeal at that stage of the proceeding. If no such appeal is taken and the judgment involved is one entered by amicable confession, upon warrant of attorney or by default, the order opening the judgment or discharging the rule to open is interlocutory in nature, rendered in an equitable proceeding and may be fully reviewed by the court at a subsequent term. Under such circumstances the discharge of the rule to open judgment will not prevent the court from entertaining a renewal of the application to open at a subsequent term. See, Home B. & L. Assn. v. Houlihan, 373 Pa. 43, 95 A.2d 189 (1953); Markofski v. Yanks, 297 Pa. 74, 146 Atl. 569 (1929); Trescott v. Co-operative Building Bk., 215 Pa. 438, 64 Atl. 630 (1906) and Kozuhowski & Reuss v. Snigel & Snigel, 90 Pa. Superior Ct. 75 (1927). The rule against opening, amending or vacating a judgment after the expiration of the term does not apply to interlocutory ...


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