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ESTATE FRANCIS J. MCCAULEY (04/28/78)

decided: April 28, 1978.

IN RE ESTATE OF FRANCIS J. MCCAULEY, DECEASED. APPEAL OF CHARLOTTE MCCAULEY, ADMINISTRATRIX AND HEIR


No. 423 January Term, 1976, Appeal from the Order dated April 1, 1976, of the Court of Common Pleas of Philadelphia, Orphans' Court Division, No. 1067 of 1975

COUNSEL

Michael J. Pepe, Jr., Philadelphia, for appellant.

Yale B. Bernstein, Stanley Bashman, Philadelphia, for appellees, Francis J. Foley and Philadelphia Police and Fire Federal Credit Union.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a dissenting opinion.

Author: Pomeroy

[ 478 Pa. Page 85]

OPINION OF THE COURT

Francis J. McCauley died intestate on May 12, 1974, and letters of administration were granted to his widow, Charlotte McCauley, the present appellant. Among the assets in the decedent's estate was a credit balance of $2,222.95 in an account which decedent had with the Philadelphia Police and Fire Credit Union, the appellee herein (Credit Union). Payment of this balance to the estate was requested but refused, whereupon a citation was issued to Credit Union to show cause why the proceeds should not be paid over to Charlotte McCauley as administratrix. The citation went unheeded, with neither an appearance nor an answer filed thereto, and, on July 14, 1975, the orphans' court division ordered that payment be made to the estate. Three months later, on

[ 478 Pa. Page 86]

October 15, 1975, appellee Credit Union filed a petition to strike the decree directing payment to the estate. The petition alleged that the decedent had executed a designation of beneficiary form which required Credit Union to pay the fund to decedent's son, Michael McCauley. A rule to show cause was granted forthwith, but was not served upon appellant until January 30, 1976. Thereafter, an answer containing new matter was filed by the administratrix and a reply to the new matter by Credit Union. On April 1, 1976, apparently without a hearing, the trial court granted the petition to strike.*fn1 The present appeal followed,*fn2 and we now reverse.

As this Court has often noted, a motion to strike a judgment or decree is the proper procedure to be followed

[ 478 Pa. Page 87]

"by one who complains of fatal irregularities appearing on the face of the record:" Cameron v. Great A & P Tea Co., Inc., 439 Pa. 374, 379, 266 A.2d 715, 717 (1970). See also Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Washington County Controller's Case, 427 Pa. 631, 235 A.2d 592 (1967); Mountain City Sav. & Loan Assoc. v. Bell, 413 Pa. 67, 197 A.2d 608 (1963). Where, however, the claim is that a judgment or decree, for reasons not appearing of record, should not have been entered, the proper remedy is not a motion to strike but a motion to open the judgment. Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); Northway Village No. 3, Inc. v. Northway Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968); Matlock v. Lipare, 243 Pa. Super. 167, 364 A.2d 503 (1976). In the case at bar Credit Union, as a defense to the original petition of the administratrix that the amount owing by Credit Union be paid to her, now belatedly asserts the existence of evidence dehors the record, viz., a designation of beneficiary form executed by the decedent. It is not alleged that the judgment is void or for any reason invalid; it is alleged that there exists a defense on the merits. Having failed to raise this matter at the proper time, appellee should have sought permission to do so out of time by means of a petition to open the judgment, in which the equities of the situation would be set forth. See DeRose v. Lombardi, 413 Pa. 258, 196 A.2d 336 (1964); Prestressed Structures, Inc. v. Bargain City, U.S.A., 413 Pa. 262, 196 A.2d 338 (1964). Because the judgment was valid and enforceable on its face, it was error to grant the motion to strike.

Appellee Credit Union nevertheless argues that the lower court had the power to open the default judgment, that it properly did so, in the interests of justice and that an appellate court should not interfere with the lower court's exercise of discretion. We are in effect asked to view the decree appealed from as pertaining to a motion to open rather than a motion ...


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