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MARLENE K. BECKER v. NANCY SCHOETTLE (04/18/80)

filed: April 18, 1980.

MARLENE K. BECKER
v.
NANCY SCHOETTLE, APPELLANT



No. 2187 October Term, 1978, Appeal from Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 4001 April Term, 1978.

COUNSEL

Robert P. Weiner, Philadelphia, for appellant.

Howard Wallner, Philadelphia, for appellee.

Spaeth, Hester and Cavanaugh, JJ.

Author: Hester

[ 277 Pa. Super. Page 130]

Presently before the court is appellant's appeal from the lower court's order dated July 28, 1978, sustaining appellee's preliminary objections to appellant's petition to open judgment and discharging the court's previously issued role.

[ 277 Pa. Super. Page 131]

We are of the opinion that the lower court abused its discretion in granting appellee's preliminary objections in the nature of a demurrer to appellant's petition to open judgment and thereafter discharging said previously issued rule; therefore, we reverse.

First, it must be noted that the procedure employed by the appellee in contesting appellant's petition to open judgment and thereafter adopted by the lower court was highly irregular.

For purposes of this opinion, however, we shall consider the substance of appellee's preliminary objections as an answer and appellant's answer and new matter to appellee's preliminary objections as a reply thereto.

A review of the procedural history of this case is appropriate at this time. The judgment was entered April 21, 1978. On May 18, 1978, appellant filed a petition to open judgment, and on May 25, 1978, the lower court granted a rule upon the appellee to show cause why the confessed judgment should not be opened and appellant let into a defense. On June 5, 1978, appellee filed preliminary objections to appellant's petition to open. Ten days later, the lower court opened the judgment and let the appellant into a defense; which order the lower court later vacated on June 30, 1978, stating that the June 15, 1978 order was entered in the erroneous belief that appellant's petition to open was uncontested and also so that appellee's preliminary objections to said petition could be considered. On July 11, 1978, appellant filed an answer and new matter*fn1 to appellee's preliminary objections, and thereafter, appellee did not file a reply to same. Notwithstanding the above, on July 28, 1978, the lower court entered an order sustaining appellee's preliminary objections in the nature of demurrer and thus discharged its previously issued rule to show cause. It is from this order that the instant appeal has been taken.

[ 277 Pa. Super. Page 132]

We reiterate as we have done on numerous occasions, our scope of review on appeals from the lower court's grant or denial of a petition to open judgment, is very narrow. A petition to open judgment is first an appeal to the equitable and discretionary powers of the lower court and as such, the exercise of the lower court's discretion in either opening or refusing to open a judgment taken by confession, will not be disturbed on appeal unless the lower court has committed a manifest abuse of discretion or an error of law. M. H. Davis Estate Oil v. Sure Way Oil, 266 Pa. Super. 64, 403 A.2d 95 (1979); ...


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