Appeal from the Order entered August 28, 1985 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 628 July Term 1985.
Joyce S. Wilkerson, Philadelphia, for appellants.
Jerome M. Feinberg, Philadelphia, for appellee.
Olszewski, Hoffman and Roberts, JJ.
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This is an appeal from the order below denying appellants' petition to strike or open a default judgment. Appellants contend that the trial court abused its discretion in refusing to open the default judgment. We agree and, accordingly, reverse the order below and remand for proceedings consistent with this opinion.
On April 4, 1985, the United States Department of Housing and Urban Development (HUD), appellee, filed a Landlord and Tenant eviction complaint against appellants in Philadelphia Municipal Court. In the complaint, HUD sought a judgment for possession of the premises, alleging that (1) appellants were in wrongful possession of HUD property as a result of a failure to pay rent, and (2) appellants' oral lease was to expire on April 19, 1985. A hearing was set for April 19, 1985, and the complaint was posted on the subject premises on April 16, 1985. When appellants did not attend the April 19 hearing, a judgment for possession by default was entered against them. Pursuant to the default judgment, a municipal court writ was served on appellants on May 10, 1985, giving them fifteen days to vacate the premises. When appellants failed to vacate, a second writ was issued and appellants were physically evicted from the premises on June 5, 1985. On June 7, 1985, appellants filed a petition to strike or open the judgment. The Municipal Court denied this petition on July 2, 1985.*fn1 Appellants appealed this decision to the Court of
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Common Pleas. Their appeal was denied by order and opinion dated August 28, 1985. This appeal followed.
Appellants contend that the common pleas court abused its discretion in refusing to open the default judgment. In support of this contention, appellants argue that notice of the complaint and hearing was not served in conformity with local municipal court rules. We agree.
A petition to open a judgment is an appeal to the court's equitable powers and the disposition of the petition will not be disturbed on appeal absent a mistake of law or a clear abuse of discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973); Penneys v. Richard Kastner Co., 297 Pa. Superior Ct. 167, 169, 443 A.2d 353, 354 (1982). Ordinarily, three factors should be considered and must coalesce before a default judgment can be opened: "(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense." McCoy v. Public Acceptance Corp., supra 451 Pa. at 498, 305 A.2d at 700. If, however, the party seeking to open the judgment has not received valid service and has no notice of the proceedings, the court has no jurisdiction over the party and is without power to enter a judgment against him. Liquid Carbonic Corp. v. Cooper & Reese, 272 Pa. Superior Ct. 462, 466, 416 A.2d 549, 551 (1979). "We have not hesitated to open judgments and give defendants an opportunity to file answers in cases where process was not properly served." Id., 272 Pa. Superior Ct. at 466-67, 416 A.2d at 551. See also Taylor v. Humble Oil & Refining Co., 221 Pa. Superior Ct. 394, 398, 292 A.2d 481, 483 (1972) (where improper
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service, party normally not subject to jurisdiction of court). Accordingly, we must inquire into the accuracy of appellants' contention that they were improperly served. Liquid Carbonic Corp. v. ...