Appeal, No. 309, Oct. T., 1962, from order of County Court of Philadelphia March T., 1961, No. 939-D, in case of Field Enterprises Educational Corporation v. Sanders Golatt et ux. Order reversed.
Paul Breen, with him Paul Kraft, for appellant.
Charlie I. Miller, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 199 Pa. Super. Page 424]
This is an appeal from an order of the County Court of Philadelphia striking off a judgment entered on a transcript from the docket of a magistrate.
The judgment in question had been obtained by Field Enterprises Educational Corporation against Sanders Golatt and Mattie Golatt, his wife, as a result of the purchase by the Golatts of, and their failure to pay for, a set of the World Book Encyclopedia. The transcript shown that judgment was rendered by Magistrate Iannarelli on February 23, 1960, in the sum of $100.00 plus costs of suit. There was no appeal or certiorari. The transcript was filed in the County Court of Philadelphia on March 10, 1961, and judgment was entered thereon. Following the issuance of an execution, there were two rules by the sheriff for interpleader as a result of property claims by separate individuals. On February 8, 1962, the day before the sheriff's sale, the Golatts filed a petition to stay the sale and open the judgment. It is from the order made on this petition that the instant appeal has been taken.
In their petition the Golatts did not attack the regularity of the magistrate's judgment. They admitted the purchase and failure to pay. Their position was that they had been advised by appellant's agent that they could return the books, and that the books had been returned on April 8, 1960. It should perhaps be noted that this was after judgment had been entered by the magistrate. In its answer to the petition, appellant denied that its agent made any statement about returning the books. No depositions were taken. Pa. R.C.P. No. 209 provides that, if a cause is determined on petition and answer, all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted. Cf. Better Living, Inc. v. Filosa, 199 Pa. Superior Ct. 110, 184 A.2d 314. Howbeit, the learned judge of the court below correctly held that
[ 199 Pa. Super. Page 425]
he was without power to open the judgment. See Lacock v. White, 19 Pa. 495; Littster v. Littster, 151 Pa. 474, 25 A. 117.
It is then to be questioned whether the court below was authorized to treat the petition to open as one to strike, especially when the petition made no attack upon the regularity of the judgment. The propriety of such action was doubted by Chief Justice STERN in a note to Kros v. Bacall Textile Corp., 386 Pa. 360, 126 A.2d 421, wherein he said (page 364): "... whether, where the obligor asks only that a judgment be opened, the court can, of its own motion, strike off the judgment, is, to say the least, extremely doubtful". See A.B. & F. Contracting Corp. v. Matthews Coal Co., 194 Pa. Superior Ct. 271, 166 A.2d 317. However, assuming arguendo that the court below was technically correct in its treatment of the petition, we are clearly of the opinion that its action in striking off the judgment was erroneous.
The petition contained the following averment: "6. That on or about May 31, 1961, the petitioners received notice that Field Enterprises Educational Corporation was making demands for $156.50". Paragraph six of the petition was answered as follows: "6. Denied. The plaintiff made demand upon the defendants much earlier than May 31, 1961. The plaintiff repeated demands upon the petitioners for payment through its attorney since November 30, 1959, and obtained a judgment in the Magistrate's Court on March 13, 1960".*fn1 According to the docket entries in the court below, the judgment was stricken for the following reason: "The ...