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TOWNSHIP MIDDLETOWN v. FRIED & GERBER (12/17/82)

filed: December 17, 1982.

TOWNSHIP OF MIDDLETOWN, APPELLANT,
v.
FRIED & GERBER, INC., IRVIN FRIED AND ALBERT D. GERBER



No. 995 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 1766 May Term, 1970.

COUNSEL

Paul M. Lewis, Philadelphia, for appellant.

Gilbert J. Golding, Morrisville, for appellees.

Cavanaugh, DiSalle and Watkins, JJ. DiSalle, J., did not participate in the consideration or decision of this case.

Author: Cavanaugh

[ 308 Pa. Super. Page 163]

We consider on appeal the trial court's order granting a petition to strike a judgment which had been taken in favor of appellant, Township of Middletown and against appellee, Irvin Fried.

The instant action is a suit to recover amusement taxes allegedly due the township as the result of revenues from auto races conducted at the Langhorne Speedway in Bucks County. The complaint filed in June of 1970, alleged that Fried was President of Fried and Gerber, Inc. and that he, together with the other defendants, was liable to the township for substantial sums representing amusement tax revenue. Fried was never served with the complaint, although service was made upon the co-defendants Fried and Gerber, Inc. and Albert Gerber. After the filing of the complaint, the defendants met with their attorney, John W. Dean, III, concerning defense of the suit. There were some preliminary discussions with the attorney for the township, Mr. Nathan, but the matter laid at rest until October 1971 when Nathan advised Dean's office that he intended to proceed with the litigation. Shortly thereafter, Donald B. McCoy, Esquire, on behalf of the law firm of Dean and McCoy, filed an appearance for all three defendants and filed preliminary objections to the complaint on behalf of all defendants. Again the matter went into repose, and it was about five years later when counsel for the township notified attorney McCoy of his renewed intention to puruse the case. The township then proceeded without response from defendants to seek and obtain a dismissal of the 1971 preliminary objections and thereafter it obtained a default judgment against defendants for want of an answer, since at that time there were appearances on behalf of all defendants of record and no responsive pleadings. The matter in course proceeded to the assessment of damages against the defendants in the sum of $82,852.02 in August of 1977. Appellee Fried petitioned to strike the judgment in December

[ 308 Pa. Super. Page 164]

    of 1977. After submission of depositions taken of Fried, Dean, McCoy and Nathan, the court entered its order striking the judgment from which the township has filed this appeal.

The first argument which we treat on appeal is that since the court considered matters extrinsic to the record, it should not have entered an order to strike the judgment under Pennsylvania law. Since the record admittedly shows that there has been an appearance entered on behalf of Fried and since the appellee's claim is that the appearance was unauthorized, the court of necessity had to consider the depositions and other material taken in support to the motion to strike the judgment in reaching the conclusion that the appearance was unauthorized, thereby striking the judgment. It is often repeated in Pennsylvania cases that a petition to strike a judgment is a common law proceeding and operates as a demurrer to the record and that a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining the judgment will not be stricken and matters dehors the record will not be considered. Kophazy v. Kophazy, 279 Pa. Super. 373, 421 A.2d 246 (1980). See also Parliament Industries, Inc. v. Vaughan Company, 287 Pa. Super. 458, 430 A.2d 981 (1980); Bethlehem Steel Corporation v. Tri-State Industries, Inc., 290 Pa. Super. 461, 434 A.2d 1236 (1981); J.F. Realty Company v. Yerkes, 263 Pa. Super. 436, 398 A.2d 215 (1979); Equibank v. Dobkin, 284 Pa. Super. 143, 425 A.2d 461 (1981). Moreover, we are precluded from considering this matter as a petition to open judgment because, initially, the original petition here was only a petition to strike and that is the remedy which the court allowed, and secondly, since in Kophazy, supra, a panel of our court after a review of the cases concluded that trial courts may not sua sponte convert a petition to strike into a petition to open. The court held:

We therefore hold that a lower court commits error when it sua sponte converts a petition to strike a judgment into a petition to open a judgment and grants relief

[ 308 Pa. Super. Page 165]

    without first giving the opposing party the opportunity to contest the petition to open as a petition to open. Since that is what the lower ...


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