Minetola v. Samacicio

160 A.2d 546, 399 Pa. 351, 1960 Pa. LEXIS 460

• Court: Supreme Court of Pennsylvania
• Decided: May 4, 1960
• Docket: Appeal, 327
• Status: Published

Opinions

Opinion by

Mb. Justice Bell,

The lower Court wisely discharged a rule to show cause why the judgment taken by default should not be stricken off because there were no fatal defects apparent on the face of the record: McGary v. Lewis, 384 Pa. 173, 180-181, 119 A. 2d 497; Nixon v. Nixon, 329 Pa. 256, 198 A. 154; Wisor v. Wisor, 175 Pa. Superior Ct. 233, 103 A. 2d 498. The lower Court likewise discharged the rule to show cause why the judgment should not be opened. From this last Order, the petitioner appealed.

Plaintiff filed a summons and a Complaint in Equity on February 19, 1959. Plaintiff took judgment by default on March 20, 1959, when, more than twenty days after service of his complaint, no answer was filed. The trial Court, on March 31, 1959, after a petition. sworn to by defendant on March 24, 1959,. granted a rule to open the judgment. Defendant’s petition alleged that she was not, at the time of service and' is not now, a'resident of 2321 South 15th Street, Philadelphia, the address where the Sheriff had i served a copy of the complaint on “an adult member of the •family of said .defendant, who stated that his relationship to said defendant-is that of son.” Defendant further. alleged that she had been married, and at the time of service was living with her husband at a different address from that stated in the complaint, where the. Sheriff had served the copy. Defendant further alleged ¿hat when she acquired knowledge of the existence of the action it was a few days prior to expiration of the twenty days allowed for filing an Answer, and that she. had a defense to the action, which she set forth.in an Answer which was attached to her petition.

The rule applicable to a petition to open judgment was recently reiterated in Ehnes v. Wagner, 388 Pa. 102, 130 A. 2d 171 (page 104)

“A petition to open judgment is addressed to the sound discretion of the court below, whose action will not be reversed on appeal unless an abusé of that discretion appears: Gagnon v. Speback, 383 Pa. 359, 362, 118 A. 2d 744. To open judgment, the petitioner must not only aver a valid defense

* but he must also establish equitable considerations which impress the court with the- need for relief: Lened Homes, Inc. v. Philadelphia Department of Licenses and Inspections, 386 Pa. 50, 53, 123 A. 2d 406.. .”

• In the instant case, depositions in support, of the rule were taken, under oath which established that petitioner at the time of service was not a resident at 2321 South 15th Street, the domicile of her family from which petitioner had moved upon her marriage some four months before the date of service. The error in the service is further demonstrated by the fact that petitioner was just about 21 years of age at the time service was made and could not possibly have had an adult son.* This testimony, if believed, would tend to establish “equitable considerations which impress the Court with the need for relief”, even though the testimony was weak and inconsistent as to the time when defendant received notice of the complaint.** However, the depositions fail to establish a valid defense on the merits of the case.*** Hence the most essential requirement of the Ehnes case necessary to move a Court to open a judgment, is missing. See also: McGary v. Lewis, 384 Pa. 173, 181, 119 A. 2d 497; Schuylkill Trust Co. v. Sobolewski, 325 Pa. 422, 190 A. 919; Ahrens v. Goldstein, 376 Pa. 114, 102 A. 2d 164.

Order affirmed; each party shall pay his respective costs.

Mr. Justice Musmanno dissents.

Italics throughout, ours.

Permitting such testimony did not conflict with the rule enunciated in Vaughn v. Love, 324 Pa. 276, 188 A. 299, that in the absence of fraud a sheriff’s return, full and complete on its face, is conclusive and cannot be set aside on extrinsic evidence, since appellant was not attempting to set aside the service and oust the jurisdiction of the Court of Common Pleas, but sought an opportunity to present a defense on the merits.

Appellant’s mother, Mrs. Samacicio, at whose residence the service of the complaint was made on February 20, 1959, testified at one point that she was sure she had told defendant about the complaint some time during the third week of February; at another point she testified that her son, on whom service was made, told her about it the day after service was made, which she said was in March; and at still another point she testified that it was in March when she gave the complaint to appellant.

This failure was due in part, if not entirely, to appellant’s counsel, who objected to every question put to the deponents concerning the facts of the transaction at issue, and who instructed the deponents not to answer any such questions.