No. 452 October Term 1979, Appeal from the Order of the Court of Common Pleas of Susquehanna County, Civil Division at No. 1009 C.D. 1978.
Philip V. Mattes, Scranton, for appellants.
Frederick J. Meagher, Jr., Montrose, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 278 Pa. Super. Page 376]
This is an appeal from an order refusing to issue a rule to show cause why a petition to open a default judgment should not be granted.
On August 21, 1978, appellee filed a complaint in two counts, the first count demanding judgment for rent at the rate of $350 per month from November 15, 1977, for appellants' occupancy of certain property in Susquehanna County, the second count demanding judgment for possession of the property and the ejectment of appellants. As the basis of these demands, the complaint pleaded an agreement dated September 12, 1977, by the terms of which appellants had conveyed the property in question to appellee in partial satisfaction of certain outstanding debts. The agreement provided that appellants could not remain in possession of the property after November 15, 1977.
The complaint was served on appellants on August 23, 1978. The office address of the attorney on the complaint was a Binghamton, New York, address. On October 25, the attorney on the complaint withdrew, and a new attorney, from Montrose, Susquehanna County, Pennsylvania, entered his appearance on appellee's behalf and caused a default judgment in the amount of $4,560.67 to be entered against appellants for failure to answer the complaint.
Appellants filed their petition to open the judgment on December 4, 1978.*fn1 In the petition they allege:
[ 278 Pa. Super. Page 3772]
. Both parties at that time [at the time the complaint was filed] were represented by New York attorneys.
3. Mistakenly following New York practice, petitioner's New York attorney served respondent's New York attorney with the Answer attached hereto as Exhibit A, asserting failure of consideration of the underlying agreement.
4. Contrary to Pennsylvania practice, but in accord with New York practice, said Answer was not filed with the Prothonotary of Susquehanna County, by accident or mistake.
5. Fully apprised by virtue of having been served with same, petitioners intended to answer the Complaint, and with malice generated by other litigation between the parties, respondents, without notice or warning, entered a default on the state of the Susquehanna record in the above matter, and thereafter caused same to be issued to ...