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LYDIA MISCHENKO A/K/A LYDIA MICHENKO v. KENNETH C. GOWTON (12/10/82)

filed: December 10, 1982.

LYDIA MISCHENKO A/K/A LYDIA MICHENKO
v.
KENNETH C. GOWTON, DOROTHY D. GOWTON, HILLCREST-OSBORNE, INC., RICHARD E. DRAKE, INC. APPEAL OF DOROTHY D. GOWTON



No. 2056 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Division, at No. 79-7932-09-1

COUNSEL

William L. Goldman, Doylestown, for appellant.

Francis J. Sullivan, Fairless Hills, for appellee.

Brosky, Wieand and Beck, JJ. Wieand and Beck, JJ., concur in result.

Author: Brosky

[ 307 Pa. Super. Page 428]

This appeal is from a dismissal of a petition to strike or open a default judgment. The issue before us is whether a lack of proper service, in the face of actual notice can excuse a failure to promptly file a petition to open. Although this issue was raised before it, the lower court failed to reach this argument. It appears this was due to the trial court not considering part of the contents of the record, namely the deposition. We reverse and remand for proceedings consistent with this opinion.

It is appellant's contention that since she never received proper service of plaintiff/appellee's complaint, the court lacked personal jurisdiction over her in the case, thus rendering the default judgment void. Because the judgment itself is a nullity, appellant argues further that a petition to open should be granted even though tardily filed. We agree.

The procedural history of this case is as follows. On July 10, 1979, plaintiff/appellee filed a complaint against, among others, Dorothy Gowton. On August 27, 1979, the Sheriff served this complaint at the residence of Russell Gowton, Dorothy's brother-in-law. In her petition to strike/open and in a deposition, appellant stated that Russell Gowton's residence had never been hers nor did he have her power of attorney to receive process. Mrs. Gowton also stated in the deposition that about a month before the notice of default judgment, she received a copy of the complaint from persons unknown via uncertified, regular mail delivery. Default judgment was entered on September 11, 1979 and appellant acknowledged receiving notice of the default judgment

[ 307 Pa. Super. Page 429]

    shortly thereafter. On May 29, 1980, more than eight months after entry of default, appellant filed a petition to strike the default judgment, or, in the alternative, to open judgment. A deposition of defendant/appellee was taken on October 21, 1980 and filed on January 9, 1981. On June 30, 1981, the court below filed its opinion and order dismissing the petition to open/strike.

The trial court opinion of Judge Rufe states:

The defendant contends that the sheriff's service of process was defective and, consequently, the court did not have jurisdiction over the defendant. However, this claim is based on facts dehors the record which cannot be considered in a petition to strike.

The statement above disregards the existence of Mrs. Gowton's deposition of October 21. More than six months before the filing of the trial court opinion, the deposition was made part of the record. Included in this deposition are statements which could show a lack of proper service. Evidently, the trial court considered the deposition irrelevant as it stated: "In the present case, the record contains a complaint, a ...


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