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DEER PARK LUMBER v. C.B. MAJOR AND EUNICE MAJOR (06/08/89)

filed: June 8, 1989.

DEER PARK LUMBER, INC., APPELLEE,
v.
C.B. MAJOR AND EUNICE MAJOR, HIS WIFE, THEIR HEIRS, SUCCESSORS, ASSIGNS, AND ALL PERSONS, FIRMS, OR ASSOCIATIONS CLAIMING RIGHT, TITLE OR INTEREST FROM OR UNDER THEM, GENERALLY, APPELLANTS



Appeal from the Order entered August 12, 1988, in the Court of Common Pleas of Wyoming County, Civil, No. 1987-421.

COUNSEL

James R. Anzalone, Wilkes-Barre, for appellants.

Helen R. Vanston, Tunkhannock, for appellee.

Brosky, McEwen and Olszewski, JJ.

Author: Olszewski

[ 384 Pa. Super. Page 627]

This is an appeal from an order entered by the Court of Common Pleas of Wyoming County denying appellants' petition to open judgment. On appeal, appellants argue that the trial court erred by ordering service of appellee's complaint by publication. Additionally, appellants claim that the trial court abused its discretion in denying their petition to open judgment on the basis that the petition was untimely. For the following reasons, we reverse.

On July 21, 1987, appellee instituted an action to quiet title to a parcel of real estate situated in Noxen Township, Wyoming County. On that same date, the trial court issued an order directing that service of the complaint be made by publication based upon an affidavit filed by Ronald Andrews, president of appellee, alleging that appellants were dead or, if living, their whereabouts were unknown. On August 21, 1987, the trial court directed that judgment by default be entered against appellants for failure to respond to the complaint, and further ordered that final judgment would be entered unless appellants brought an action in ejectment within thirty days. On September 24, 1987, after appellants failed to respond within the allotted time, judgment was entered in favor of appellee and against appellants, granting title to the parcel of land in the name of appellee.

On March 3, 1988, appellants filed a petition to open the default judgment. Pursuant to rule to show cause, the trial court ordered that depositions be taken and that a hearing be scheduled. After consideration of the testimony and facts presented, the trial court, by order dated August 10,

[ 384 Pa. Super. Page 6281988]

, denied appellants petition to open judgment. Appellants then filed the instant appeal.

Appellants first argue that the trial court erred in its determination that service by publication was proper. Appellants point to Rule 430(a) of the Pennsylvania Rules of Civil Procedure and stress that before service by publication is authorized, the plaintiff must state in an affidavit the reasons why personal service cannot be made as well as the nature and extent of the investigation utilized to determine the whereabouts of potential defendants. In the present case, appellants claim that the affidavit in support of service was defective on its face in that it failed to state the investigation undertaken to determine the whereabouts of any potential heirs to the property in question.*fn1 According to appellants, such a defect renders the method of service invalid. We agree.

A petition to open a default judgment is an appeal to the court's equitable powers, and the trial court's disposition of the petition will not be disturbed absent an error of law or a manifest abuse of discretion. Romeo v. Looks, 369 Pa. Super. 608, 535 A.2d 1101 (1987), allocatur denied, 518 Pa. 641, 542 A.2d 1370 (1988); U.S. Dept. of Housing v. Dickerson, ...


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