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MABEL CRUSE v. ROBERT WOODS AND NATIONAL COUNCIL JUNIOR ORDER. APPEAL ROBERT WOODS (TWO CASES). JAY C. LONG AND NAOMI LONG (06/27/80)

filed: June 27, 1980.

MABEL CRUSE
v.
ROBERT WOODS AND NATIONAL COUNCIL JUNIOR ORDER. APPEAL OF ROBERT WOODS (TWO CASES). JAY C. LONG AND NAOMI LONG, HIS WIFE V. ROBERT WOODS AND NATIONAL COUNCIL JUNIOR ORDER



No. 423 April Term, 1979, No. 424 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at Nos. GD-76-17639 and GD 76-17638, In Equity.

COUNSEL

Alan Frank, Pittsburgh, submitted a brief on behalf of appellant.

J. Lawrence McBride, Pittsburgh, for appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Cercone

[ 279 Pa. Super. Page 244]

This is an appeal from the order of the lower court denying appellant's motion to open a default judgment entered against him. We reverse the order of the lower court.

The relevant facts are as follows: The cases involved in these appeals were begun by two separate complaints in equity seeking an adjudication of title to real properties that had been purchased under installment purchase agreements. The home buyers, Mabel Cruse and Jay and Naomi Long had originally signed the installment purchase agreements with Robert Woods, appellant, and payments had initially been made to appellant. Payments were then made to the National Council Junior Order, appellee, after Junior Order claimed ownership of these properties. A dispute arose between the two and payments were finally made into an escrow account.

On November 22, 1977, Mr. Woods and National Council entered into a consent agreement that became a consent order signed by the lower court. The salient paragraph of that order reads:

". . . Junior Order will file a Petition to Withdraw Escrowed Funds, same to be treated in the nature of a complaint in assumpsit and defendant Woods shall plead to said petition in the nature of an answer to complaint in assumpsit."

On January 8, 1978, National Council filed such a petition to withdraw the escrow funds, but did not endorse it with a Notice to Plead. On January 10, appellee filed a Praecipe for Endorsement of Petition in order to add a notice to plead

[ 279 Pa. Super. Page 245]

    to the petition. On January 26, 1978, appellant filed preliminary objections to the petition which were dismissed. Appellant appealed from this order of the lower court, but discontinued his appeal on October 1, 1978.

On January 9, 1979, National Council obtained a default judgment against appellant for his failure to file an answer to the petition to withdraw escrow funds. Mr. Woods filed a petition to open on January 15, 1979, which was denied after a hearing. On appeal, appellant raises one issue for our review: Whether a default judgment may be opened, despite the failure ...


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