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MARTIN QUINTILLIANO v. ROBERT L. O'NEILL AND ANN MARIE O'NEILL (12/23/82)

filed: December 23, 1982.

MARTIN QUINTILLIANO
v.
ROBERT L. O'NEILL AND ANN MARIE O'NEILL, H/W, APPELLANTS



NO. 1485 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 79-9274.

COUNSEL

David B. Glancey, Philadelphia, for appellants.

Ralph M. Russo, Upper Darby, for appellee.

Cavanaugh, McEwen and Beck, JJ.

Author: Per Curiam

[ 308 Pa. Super. Page 37]

We here review an order which denied a petition by appellant to open a default judgment entered pursuant to Pennsylvania Rule of Civil Procedure No. 4019. We reverse.

The record reflects that the Common Pleas Court, on September 15, 1980, entered a rule upon appellants, the defendants in this proceeding, to show cause why the Motion for Sanctions filed by appellee, the plaintiff, should not be granted; the rule was returnable October 24, 1980, and counsel for plaintiff filed a certificate that he had on September 24, 1980, provided notice thereof to counsel for the defendants. Counsel for plaintiff presented and the court executed on October 30, 1980, an order directing defendants to file answers to the interrogatories of plaintiff within ten days or suffer a default judgment. That ten day period expired on Saturday, November 8, 1980, and counsel for the plaintiff proceeded on Monday, November 10, 1980, to file with the prothonotary a praecipe for default judgment*fn1 upon which appears a handwritten notation to the prothonotary to assess damages in the amount of $5,575.00 plus interest. The record does not, however, contain the following documents:

An affidavit of service of the order of October 30, 1980 of Judge Mason Avrigian directing the defendants to file answers to the interrogatories within ten days or suffer a default judgment. (While counsel for the plaintiff filed an "Affidavit" of service with the prothonotary on November 5, 1980, it is a certification and does not relate to

[ 308 Pa. Super. Page 38]

    the order of court of October 30, 1980, threatening default judgment; rather, counsel merely refiled the certificate relating to the rule to show cause that was forwarded to the defendant on September 24, 1980.)

The actual entry of a default judgment for the plaintiff. (While the praecipe directs the prothonotary to enter a default judgment and while the docket reflects that the prothonotary did so on November 10, 1980, the record does not reflect any such formal entry of judgment by the prothonotary.)

Counsel for the defendant filed with the court a petition to open default judgment on November 25, 1980 which was subsequently denied. We are compelled to reverse.

Firstly, the entry of a default judgment by the prothonotary under Pa.R.C.P. No. 4019 is not permissible so that the judgment would appear to be void ab initio. Newsome v. ...


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