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WILLIAM B. HOOVER AND JANET E. HOOVER v. KENNETH EDWARD CUMMINGS (07/24/81)

filed: July 24, 1981.

WILLIAM B. HOOVER AND JANET E. HOOVER
v.
KENNETH EDWARD CUMMINGS, APPELLANT



NO. 1272 October Term, 1979, Appeal from Order in the Court of Common Pleas of Clinton County, Civil Division, No. 26-1979.

COUNSEL

Kenneth Edward Cummings, appellant, in pro. per.

Larry E. Coploff, Lock Haven, did not file a brief on behalf of appellees.

Spaeth, Cavanaugh, and O'Kicki, JJ.*fn* Spaeth and Cavanaugh, JJ., concur in the result.

Author: O'kicki

[ 289 Pa. Super. Page 182]

This appeal arises from an order dismissing defendant's Petition to Strike Off Judgment.

On January 9, 1979, a complaint endorsed with motion to plead was filed and served upon the defendant January 12, 1979. Defendant failed to file an answer within the required twenty day period. On February 2, 1979, plaintiffs obtained a default judgment against the defendant for failure to appear or answer the complaint as required by Pa.R.C.P. 1047. On February 6, 1979, defendant filed a Petition to Strike Off Judgment. Briefs were submitted. Oral argument was held March 20, 1979.

The issue raised by the pleadings is whether or not a complaint is void ad initio when the original complaint filed with the prothonotary is legally correct but the copy served on the defendant is at variance with the original with regard to its verification, jurat and attorney's signature.

The record reveals that the original Complaint does contain the signatures of the plaintiffs as well as the signatures of the notary, together with the commission expiration dates. The only variance between the original and copy is

[ 289 Pa. Super. Page 183]

    the absence of original signatures and seals from the verification part of the copy. The original complaint is endorsed by plaintiffs' attorney on front of the notice to defend.

Appellant contends that these variances between the original and copy that was served on defendant cause the complaint to be void ab initio, thus justifying his failure to file an answer within the twenty day period. With that narrow contention this court can not agree.

In the case of Monroe Contract Corporation v. Harrison Square, Inc., 266 Pa. Super. 549, 405 A.2d 954 (1979), the plaintiff filed a praecipe for judgment for want of an answer, a mechanic's lien. Subsequently, defendant petitioned to strike or open the judgment. The lower court entered an order denying defendant's petition. The lower court's rationale for denying the petition was that the petition was not duly verified pursuant ...


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