decided: March 14, 1967.
SCIENTIFIC LIVING, INC.
Appeal from decree of Court of Common Pleas of Lackawanna County, Sept. T., 1965, No. 16, in case of Scientific Living, Inc. v. Ervin Hohensee.
Ervin Hohensee, appellant, in propria persona.
William T. Malone, with him Powell and Malone, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
[ 424 Pa. Page 360]
This is an appeal from a final decree in equity.
The action, instituted in Lackawanna County, involves title to real estate located therein. Service of the complaint was made upon the defendant, a resident of Illinois, by registered mail pursuant to Pa.
[ 424 Pa. Page 361]
R. C. P. 1504(b) (2) (b). Delivery was effected on December 4, 1965.
On December 27, 1965, the plaintiff caused judgment to be entered against the defendant for failure to answer the complaint within twenty days. Also on December 27, 1965, the defendant filed, in the District Court for the Eastern District of Pennsylvania, a petition to remove the case to that court. On August 12, 1966, the district court remanded the case back to the state court for further consideration and disposition.
On August 25, 1966, the plaintiff filed a motion for a final decree in the Court of Common Pleas of Lackawanna County. Notice of this motion was served upon the defendant by registered mail. On September 12, 1966, the defendant, appearing in propria persona, filed a motion in the same court to vacate the default judgment and to dismiss the proceedings. The pleading, while not artfully drawn, questioned the jurisdiction of the court over the person of the defendant, and also stated the default judgment was entered prematurely. On September 16, 1966, a final decree was entered as prayed for. According to the record this decree was entered, although the defendant's motion to vacate and dismiss had not been disposed of.
The final decree was entered prematurely. Defendant's pending motion should have been considered and resolved before such action was taken.
Decree vacated and record remanded for further proceedings consonant with this opinion. Each side to pay own costs.
Decree vacated and record remanded.
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