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MAURICE GOLDSTEIN CO. v. RALPH MARGOLIN (12/29/80)

filed: December 29, 1980.

MAURICE GOLDSTEIN CO., INC., APPELLANT,
v.
RALPH MARGOLIN, T/A MARGO REALTY



No. 2728 October Term, 1978 Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil-Assumpsit, entered October 26, 1978 at No. 4251 Nov. 1972

COUNSEL

Richard D. Malmed, Philadelphia, for appellant.

David L. Pollack, Philadelphia, for appellee.

Wickersham, Watkins and Lipez, JJ.

Author: Wickersham

[ 285 Pa. Super. Page 162]

This is an appeal from an order granting a petition to open a default judgment. We reverse.

The relevant procedural history of this case is set forth in the lower court's opinion.

"Plaintiff filed its Complaint in Assumpsit on December 1, 1972, claiming damages in the amount of $15,842.27, plus interest and costs for defendant's failure to pay for fuel oil delivered and used from September, 1966 to the date of the Complaint. The return of service filed by the Sheriff of Philadelphia County indicates that the Complaint was served

[ 285 Pa. Super. Page 163]

    on the Manager of the apartment building wherein defendant resided on December 5, 1972, in compliance with Pa.R.Civ.P. 1009(b)(2)(ii). No responsive pleading whatsoever was filed by defendant, however, and on February 23, 1973, plaintiff took a default judgment.

"On May 30, 1975, defendant filed a Petition to Open Judgment. In early August, 1975, the Petition to Open was assigned to this Court for disposition. On August 21, 1975, this Court denied defendant's Petition. An appeal to the Superior Court of Pennsylvania followed, being No. 59 of October Term, 1976.

"On June 29, 1977, the Superior Court, per Spaeth, J., filed an opinion reversing this Court's Order refusing to open judgment and remanding the case for further proceedings pursuant to Pa.R.Civ.P. 209. Maurice Goldstein Co., Inc. v. Ralph Margolin, t/a Margo Realty, 248 Pa. Super. 162, 374 A.2d 1369 (1977).

"On March 28, 1978, defendant filed the deposition of Ralph Margolin, and on April 14, 1978, filed two sets of stipulations. All of this evidence, together with that already of record, was considered by the Court. On October 26, 1978, this Court opened the judgment and ...


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