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PATRICIA DINARDO AND JOSEPH DINARDO v. CENTRAL PENN AIR SERVICES (09/19/86)

filed: September 19, 1986.

PATRICIA DINARDO AND JOSEPH DINARDO, H/W, APPELLANTS,
v.
CENTRAL PENN AIR SERVICES, INC.



Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 3730 November Term, 1984.

COUNSEL

Stuart Fiel, Philadelphia, for appellants.

Byrna S. Greenblatt, Philadelphia, for appellee.

Cavanaugh, Wickersham and Roberts, JJ.

Author: Wickersham

[ 358 Pa. Super. Page 76]

This is an appeal from an order dated October 17, 1985, granting appellee's petition to open/strike the default judgment entered against it. We reverse.

On or about February 14, 1984, it is alleged that Jere H. Sweigart, an employee of Central Penn Air Services, appellee herein, was operating a company truck in a negligent and reckless manner, and further, that the truck collided with an automobile that Mrs. DiNardo, appellant, was operating at the Philadelphia International Airport. Thereafter, appellants filed a civil action sounding in negligence against appellee and its employee on November 23, 1984. Service of the complaint was made on Mr. Sweigart on December 6,

[ 358 Pa. Super. Page 771984]

. Service was returned non est inventus, however, upon appellee, Central Penn Air Services.*fn1 Unable to personally serve appellee, a petition for alternative service of process was filed by appellants pursuant to local rule. By order dated January 31, 1985, the lower court granted the petition thereby allowing service upon appellee by regular mail, certified mail, and posting of a sheriff's notice. Appellants were successful in serving appellee by registered mail, the return being dated February 22, 1985.

Upon appellee's failure to respond, appellants served a Pa.R.C.P. No. 237.1 notice upon them. Still receiving no response, appellants filed a praecipe to enter default judgment against Central Penn Air Services on May 16, 1985. A judgment by default was thereafter entered against appellee.*fn2 On August 12, 1985, appellee filed a petition to open/strike the default judgment; appellants filed an answer thereto. By order dated October 17, 1985, the lower court ultimately granted the petition and opened the default judgment. Appellants timely appealed from the order pursuant to Pa.R.A.P. 311(a)(1).

Appellants raise three issues for our review and consideration:

I. Was the record ripe for judicial determination when the court below considered the petition to open/strike [the] default judgment despite the fact that no depositions were taken?

II. Was the petition to open/strike [the] default judgment "promptly" filed so as to satisfy that element of the tripartite test ...


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