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ROSE FLECK v. JOHN MCHUGH ET AL. APPEAL MARTIN CABRY (06/28/76)

decided: June 28, 1976.

ROSE FLECK
v.
JOHN MCHUGH ET AL. APPEAL OF MARTIN CABRY



Appeal from Order of June 6, 1975, Denying Defendant, Martin Cabry's Motion to Strike Judgment, of the Court of Common Pleas, Trial Division, of Philadelphia County, No. 5829, December Term, 1973. No. 1596 October Term, 1975.

COUNSEL

Kalvin Kahn, Philadelphia, for appellant.

Ronald Jay Bayer, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents.

Author: Hoffman

[ 241 Pa. Super. Page 309]

Appellant contends that the lower court erred in denying his motion to strike a default judgment.

On January 4, 1974, appellee, plaintiff below, filed a complaint in trespass, naming John McHugh, Ruth McHugh,

[ 241 Pa. Super. Page 310]

Mary McHugh Cabry, individually and as administratrix of the Estate of Mary McHugh, Martin Cabry, and Nora Wilson, as defendants.*fn1 On February 1, 1974, Eugene J. Maier, Esquire, filed preliminary objections on behalf of the defendants which challenged the service of process and raised the defense of non-joinder of a necessary party. See Rule 1017(b)(1) and (5), Pa.R.C.P. On June 28, 1974, appellee filed a motion to strike the preliminary objections on the ground that defendants had failed to file the objections "with the Motions Court so as to have same listed for hearing." The defendants did not contest the motion to strike, and it was granted by the lower court on July 11, 1974. In its order, the court also directed "that Defendants shall file an answer to Plaintiff's complaint within twenty (20) days."*fn2 On August 13, 1974, no answer having been filed, appellee caused the Prothonotary to enter a default judgment against defendants.

On October 11, 1974, defendant-appellant, Martin Cabry, filed a petition to open the default judgment, alleging that the complaint did not contain a notice to plead, and that the Estate of Mary McHugh had been improperly served. The lower court denied the petition on November 2, 1974.*fn3 On March 5, 1975, attorney Maier withdrew his appearance for the defendants; on May 9, 1975, Ernest Jones, Esquire, entered an appearance. On May

[ 241 Pa. Super. Page 31117]

, 1975, appellant filed a motion to strike the default judgment, alleging that the Rules of Civil Procedure prohibited the entry of the judgment against him. The lower court denied the motion to strike on June 6, 1975; this appeal followed.

It is well-settled that a motion to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining, the judgment cannot be stricken. See e. g., Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); Cameron v. Great Atlantic & Pacific Tea Co., Inc., 439 Pa. 374, 266 A.2d 715 (1970); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Washington County Controller's Case, 427 Pa. 631, 235 A.2d 592 (1967); Franklin Interiors, Inc. v. Browns Lane, Inc., 227 Pa. Super. 252, 319 A.2d 682 (1974); Goldenberg v. Holiday Inns of America, Inc., 227 Pa. ...


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