decided: April 22, 1970.
Appeal from order of Court of Common Pleas No. 3, Trial Division, of Philadelphia, in case of Maxine Whatley v. Robert Baynard.
Samuel Merovitz, for appellant.
Harry J. Oxman, with him Milton D. Soiferman, and Silverberg & Oxman, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ.
Author: Per Curiam
[ 437 Pa. Page 499]
This is an appeal from an order entered below striking from the record a judgment of non pros. in an action seeking damages for injuries suffered in an automobile accident.
In striking the judgment, the court took into consideration facts outside the record. This was error. A motion to strike off a judgment of non pros., regular on its face, challenges only defects appearing on the face of the record. Cox v. Felice Perri & Sons, 412 Pa. 415, 195 A.2d 79 (1963). However, since the facts which moved the learned court below to strike the judgment appear to have sufficient merit to warrant the court in the exercise of its discretion to open the judgment, and the court below could properly treat the motion to strike as one to open,*fn1 we will vacate the order appealed from and remand the record for the purpose of permitting the court below to consider the motion as one to open the judgment.
It is so ordered.
Order vacated and record remanded.