Appeal, No. 3, Jan. T., 1964, from order of Court of Common Pleas of Montgomery County, No. 61-4853, in case of Ralph J. Colucci, Jr., a minor, by Lillian Colucci, his guardian, and Lillian Colucci in her own right, v. Albert Imperial. Order affirmed; reargument refused May 25, 1964.
William B. Koch, with him Philip D. Weiss, and Duffy, McTighe & McElhone, for appellant.
Richard S. Lowe, with him Fox, Differ, DiGiacomo & Lowe, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE O'BRIEN
This is an appeal from an order of the court of Common Pleas of Montgomery County denying a petition to open a judgment by default and set aside a verdict.
A complaint in trespass was filed June 1, 1961, by Lillian Colucci, mother and natural guardian of Ralph J. Colucci, Jr., against Albert Imperial. The sheriff's return shows that a true and attested copy of the complaint filed was handed to Mrs. Albert Imperial on June 6, 1961, at the residence of the defendant, 300 Grove Street, Bridgeport, in Montgomery County.
On June 28, 1961, for want of an appearance, a default judgment was entered against the defendant, Imperial, and after the proper issue and listing procedure, the matter was heard by the Court of Common Pleas of Montgomery County, sitting with a jury. On May 24, 1962, the jury returned a verdict in favor of the Coluccis in the amount of $16,000.*fn*
On July 12, 1962, Imperial filed a petition to open the judgment and set aside the verdict, contending that he had not been served. We have said many times that the opening of a judgment regularly and formally entered in a court of law is an appeal to the equitable powers of the court. The use of this power lies in the discretion of the court below and will not be disturbed, absent a finding on our part of an abuse of discretion by the lower Court. Girard Tr. Corn Exch. Bank v. Sweeney, 413 Pa. 203, 196 A.2d 310 (1964); Universal B. Sup., Inc. v. Shaler H. Corp., 409 Pa. 334, 186 A.2d 30 (1962).
The appellant contends that the petition to open the judgment is not an attack on the sheriff's return because the issue of jurisdiction is not raised. The appellant contends that he merely wishes an opportunity to present his defense. In support of this position the appellant cites Minetola v. Samacicio, 399 Pa. 351, 160 A.2d 546 (1960). In the Minetola case, the sheriff's return indicated that the complaint was served on the adult son of the defendant. The evidence showed that the defendant (1) did not live at the residence where service was made and (2) the defendant was 21 years old and could not possibly have an adult son. We indicated in that case that since a petition to open a judgment is an appeal to the equitable side of the court, if the other requirements of a ...