Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HELEN J. KOPHAZY v. RICHARD E. KOPHAZY AND KAREN M. KOPHAZY (07/11/80)

filed: July 11, 1980.

HELEN J. KOPHAZY, APPELLANT,
v.
RICHARD E. KOPHAZY AND KAREN M. KOPHAZY, HIS WIFE



No. 1674 October Term 1979, Appeal from the Order of the Court of Common Pleas of Northampton County, Civil Action - Law, at No. 208 April Term, 1977.

COUNSEL

Ronold J. Karasek, Bangor, for appellant.

Nicholas Noel, III, Bethlehem, for appellees.

Spaeth, Brosky and Van der Voort, JJ.

Author: Spaeth

[ 279 Pa. Super. Page 374]

This is an appeal from an order opening a default judgment. The question presented is whether a judge may treat a petition to strike a judgment as a petition to open a judgment.

On or about May 3, 1977, a complaint in assumpsit was filed by Helen Kophazy against Richard Kophazy and his wife, Karen Kophazy, alleging that they had failed and refused to repay two loans totaling $10,735. The record indicates that the complaint was served on both defendants. No answer or entry of appearance was filed by Karen Kophazy, and on January 19, 1979, a default judgment was entered against her. On February 13, 1979, she filed a petition to strike the default judgment, alleging that she had not been properly served with the complaint, since

[ 279 Pa. Super. Page 375]

    service was only personally made on her husband at the marital residence, after she had separated from him and moved away. In support of this claim she attached a sheriff's record of service indicating that the complaint had been personally handed to her husband but not to her. After depositions and briefs, the lower court, on July 10, 1979, issued an opinion and order. By its opinion and order the lower court sua sponte converted the petition to strike into a petition to open the judgment, and opened the judgment. Helen Kophazy then took this appeal.

A petition to strike a judgment differs from a petition to open a judgment. Although the difference has been stated many times in the cases, it apparently bears restating.

A petition to strike a judgment is a common law proceeding, Hamborsky v. Magyar Presbyterian Church, 78 Pa. Super. 519, 522 (1922), and operates as a demurrer to the record, Advance Building Services Co. v. F. & M. Schaefer Brewing Co., 252 Pa. Super. 579, 582 n.3, 384 A.2d 931, 932 n.3 (1978), citing, Master Homecraft Co. v. Zimmerman, 208 Pa. Super. 401, 222 A.2d 440 (1966). Thus, a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken. Cameron v. Great Atlantic and Pacific Tea Co., 439 Pa. 374, 266 A.2d 715 (1970); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa. Super. 462, 416 A.2d 549 (1979); Advance Bldg. Services Co. v. F. & M. Schaefer Brewing Co., supra; Metropolitan Federal Savings & Loan Ass'n of Eastern Pennsylvania v. Bailey, 244 Pa. Super. 452, 368 A.2d 808 (1976); Policino v. Ehrlich, 236 Pa. Super. 19, 345 A.2d 224 (1975).

A petition to open a judgment is an appeal to the court's equitable powers and is a matter for judicial discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Hamborsky v. Magyar Presbyterian ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.