No. 360 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. 3873 October Term 1974.
Edward F. Urbanik, Pittsburgh, for appellant.
Angelo C. Procopio, Pittsburgh, for appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 288 Pa. Super. Page 176]
This is an appeal from the refusal of the court below to open a judgment entered following a trial at which only plaintiff-appellee and his lawyer appeared. We reverse.
[ 288 Pa. Super. Page 177]
On September 23, 1974, appellee filed a complaint in assumpsit against appellant. On October 25, the sheriff filed a return of service stating that appellant could not be found. The complaint was reinstated on November 7, and served on appellant's son (her attorney-in-fact) on November 27. Appellant, by her lawyer, filed an answer, new matter and counterclaim on December 13. This pleading included a proper demand for trial by jury.*fn1 Appellee filed a praecipe for issue on October 26, 1976. Trial was scheduled for March 9, 1979. Notice of the trial date appeared in the county legal journal on January 25, 1979 and March 8, 1979.
At the beginning of the trial, the court stated:
Plaintiff has answered ready to try. There has been no answer from defense. Efforts of the Court to locate defense indicates [sic] that the defense is not interested in proceeding.
Plaintiff has advised the Court that it will waive its rights to a jury trial and proceed non-jury in accordance with our rules.
The case was then tried by the court alone, without a jury. The court returned verdicts in appellee's favor on his claim and on appellant's counterclaim. Judgment on the verdicts was filed on January 24, 1980. On February 11, 1980, appellant, by the same lawyer who had represented her at the beginning of this case, petitioned for, and the court below granted, a rule on appellee to show cause why the judgment should not be opened. Appellee answered the petition, and the court discharged the rule without hearing evidence on the issue.*fn2 Appellee's counsel stated, in his answer to appellant's ...