Appeal, No. 167, Oct. T., 1961, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1957, No. 2936, in case of Henry M. Drury v. Concetta Zingarelli et Vir. Order reversed.
Lawrence Corson, with him Max Meshon, and Eilberg, Meshon & Brener, for appellant.
Alexander Schamban, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
OPINION BY MONTGOMERY, J.
Plaintiff-appellant has appealed from an order opening a judgment entered in his favor in default of an appearance
by defendant-appellee and her husband who is now deceased. The action of the lower court was based upon appellee's petition and appellant's answer thereto, no deposition in support of either having been taken. The petition of appellee, surviving defendant, sets forth facts which, if proven, would constitute a defense to appellant's claim and also alleges that "Neither of the defendants, petitioner or her late husband, received notice at any time, of the institution of the action nor were served personally with the Complaint." This statement was later qualified to mean until process in the nature of a writ of fieri facias was executed upon petitioner's goods on or about November 30, 1959.
The complaint was filed March 26, 1957, the sheriff's return shows service on April 5, 1957, judgment was entered in default of an appearance on May 28, 1957, there was a pre-trial conference in defendant's absence before HAGAN, President Judge, and a trial was held November 16, 1959 before FLOOD, President Judge (now of this Court), without a jury, also in defendant's absence, for the purpose of assessing damages, at which time damages were assessed at $2,000. The writ of execution issued November 24, 1959, and the petition to open judgment was filed December 15, 1959.
The sheriff's return shows service upon appellee as follows:
"Served and made known to Concetta Zingarelli the within named defendant by handing a true and attested copy of the within complaint to Mrs. Zingarelli an adult member of the family of said defendant, who stated that her relationship to said defendant, is that of Mother in law, on 4-5, 1957, at 10:30 o'clock, A.M., Eastern Standard Time, at 2053 Emily St., ...