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LEO CLYMIRE AND RITA CLYMIRE v. DAVID L. MCKIVITZ (02/03/86)

filed: February 3, 1986.

LEO CLYMIRE AND RITA CLYMIRE, HIS WIFE
v.
DAVID L. MCKIVITZ, ROBERT MCKIVITZ AND JEANNE M. MCKIVITZ, AND HOUSEHOLD FINANCE CONSUMER DISCOUNT COMPANY. APPEAL OF RITA CLYMIRE



Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 84-9544

COUNSEL

Gilbert H. Ludwig, McKeesport, for appellant.

Alden E. Bowen, Pittsburgh, for David McKivitz, appellee.

Thomas J. Michael, Pittsburgh, for McKivitz, appellees.

Wieand, Del Sole and Hester, JJ.

Author: Wieand

[ 350 Pa. Super. Page 473]

This is an appeal from an order striking a default judgment entered against David L. McKivitz. The judgment was entered after McKivitz had failed to answer a complaint filed against him and his parents by Leo and Rita Clymire. We agree that the record does not support the default judgment and, therefore, affirm.

On June 1, 1984, Leo and Rita Clymire, husband and wife, caused a summons in equity to be issued against David L. McKivitz, Robert McKivitz and Jeanne M. McKivitz. The summons was served by Joseph Panucci, Sr., an adult person, who, on June 18, 1984, handed a copy of the writ of summons "to Robert McKivitz, an adult person and being one of the Defendants and a member of the family with which said Defendants reside." Panucci, according to his affidavit, left additional copies with Robert McKivitz for the other two named defendants. On August 2, 1984, an appearance was entered on behalf of Robert and Jeanne McKivitz. No appearance, however, was entered on behalf of David L. McKivitz. A multi-count complaint was filed by the Clymires on August 31, 1984. In this complaint they alleged, inter alia, that David McKivitz was indebted to them on a promissory note given in payment of the purchase price of a tract of real estate which McKivitz had purchased from them and subsequently conveyed to his father, Robert McKivitz. The latter, in turn, had allegedly placed title in the names of himself and his wife as tenants by the entireties, all before the promissory note had been

[ 350 Pa. Super. Page 474]

    paid by David McKivitz or reduced to judgment. The complaint, although endorsed with a notice to plead, did not contain a notice to defend as required by Pa.R.C.P. 1018.1. The record also does not disclose that the complaint was ever served on David L. McKivitz.

On September 21, 1984, preliminary objections were filed on behalf of Robert and Jeanne McKivitz.*fn1 No pleading, however, was filed on behalf of David McKivitz. On November 19, 1984, the Clymires caused a default judgment to be entered against David McKivitz for failure to file an answer.*fn2 Pursuant to praecipe, the prothonotary assessed damages on the second count of the complaint in the amount of $6,087.50. Damages on the third and fourth counts were to be determined by the court after hearing.

On December 6, 1984, David McKivitz filed a petition to strike the default judgment which had been entered against him. He alleged that the judgment was defective because (1) the complaint had not been endorsed with a notice to defend; (2) because he had not been served with a copy of the complaint; and (3) because he had not been a member of his parents' household when the summons had been served upon his father, Robert McKivitz. Following argument, the trial court sustained the petition and struck the default judgment. The Clymires appealed. After an appeal had been filed, the trial judge prepared and filed an opinion in which he stated that his reason for striking the judgment had been that the record did "not show that David McKivitz was personally served with the writ of summons and does not show his residence . . . ."

The law pertaining to the striking of judgments was reviewed in Kophazy v. Kophazy, 279 Pa. Super. 373, 421 ...


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