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MABLE HEPLER v. ANTHONY J. URBAN AND SUSAN I. URBAN (07/27/88)

decided: July 27, 1988.

MABLE HEPLER, APPELLANT,
v.
ANTHONY J. URBAN AND SUSAN I. URBAN, HIS WIFE, APPELLEES



Appeal from the Order of Superior Court at no. 00277 Phila. 1986 dated December 30, 1986, reversing the order of the Court of Common Pleas of Schuylkill County at No. S-1039 - 1978 dated January 3, 1979

COUNSEL

Kent D. Watkins, St. Clair, for appellant.

Joseph P. Semasek, McAdoo, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Larsen

[ 518 Pa. Page 483]

OPINION OF THE COURT

The issue in this case is whether the trial court had jurisdiction to strike or open a summary judgment entered by default, where the petition to strike or open was filed six months after the order granting summary judgment was entered without an indication on the docket of service of the order on the opposing party.

In 1978, appellant, Mable Hepler, filed an action to quiet title against appellees, Anthony J. Urban and Susan I. Urban, his wife, in the Court of Common Pleas of Schuylkill County. Appellees had claimed a large portion of appellant's real property through a tax claim sale. On May 4, 1979, appellees filed a motion for summary judgment. The matter was listed for argument on July 23, 1979. At the call of the argument list on July 16, 1979, appellees presented a motion for judgment pro forma, seeking the grant of their motion for summary judgment on the ground that

[ 518 Pa. Page 484]

    appellant had not filed a brief in response to appellees' motion for summary judgment, as required by local rule. Without considering the merits of appellees' motion for summary judgment, the trial court granted the motion and dismissed appellant's complaint with prejudice. The docket does not indicate that a copy of the court order was mailed to appellant or to her attorneys.

Appellees subsequently filed a bill of costs and a praecipe to issue a writ of possession. On December 24, 1979, the sheriff executed the writ and delivered possession of the disputed property to appellees. Appellant alleged that this was the first notice that she and her attorney of record had of the summary judgment proceedings or of the entry of summary judgment against appellant. On January 14, 1980, appellant filed a petition to strike or open judgment with stay of proceedings.

Following a hearing at which time evidence was presented concerning only the merits of appellant's action to quiet title, the trial court struck the summary judgment entered in the case. The court determined that appellant had met the requirements for opening a judgment, i.e., that the petition to open has been promptly filed; a meritorious defense can be shown; and the failure to appear can be excused. The trial court excused appellant's failure to appear by finding that the record did not show the requisite notice to appellant prior to the entry of summary judgment against her. Superior Court, in a memorandum opinion, reversed the trial court order and reinstated the grant of summary judgment in favor of appellees, 362 Pa. Super. 643, 520 A.2d 1219. Superior Court determined that the trial court lacked jurisdiction to strike the summary judgment in that the order granting summary judgment became final thirty days after the order was ...


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