Opinion by
This was an action of assumpsit on an alleged oral agreement entered into on Aрril 6, 1939, contemporaneously with the execution and delivery of a deed, from the plаintiff to the defendants, whereby the defendants *257 were to reconvey the said property to the plaintiff, within a reasonable time, for the sum of $5,191, plus interest on $3,800 from April 6, 1939, on the theоry that the agreement created a trust in said property for the use and benefit of the plaintiff.
On November 1, 1945, defendants entered into an agreement to sell the propеrty' to other persons. The suit was to recover the difference between the amоunt they received on the sale and the alleged agreed price.
The jury returned a verdict in favor of the plaintiff for $7,000. Four days later, on May 19, 1947, each of the defendants filеd motions for judgment n. o. v. and for a new trial. The cáse was argued before the court en banc, consisting of Judges Keenan, Laird, and Mc-Wherter. Judge Keenan's term of office expired on January 4, 1948. Judge Bauer's term of office commenced on the following day. On February 2, 1948, Judge McWherter filed an order setting forth that, “the term of President Judge J. Hilary Keenan having expired without passing on this case, and the remaining two Judges who heard the argument in this case having failed to agree, it is ordered that the papers in the ease be referred bаck to the office of the Prothonotary”. The case was then placed on the Argument List to be heard by the court en banc.
On February 14, 1948, counsel for the plaintiff paid the jury fеe and directed the prothonotary to enter judgment on the verdict. No notice of the entry of the judgment was given to either the defendants or their attorneys prior to Marсh 29, 1948, when the case was called for argument before the court en banc, at which timе the counsel for the plaintiff announced to the court that he had entered judgment оn February 14, 1948, and that the questions on the motions were therefore moot, and had given no notice to the attorneys for the defendants, of his action in so entering judgment. On April 14,1948, the appellees filed their petition to open the judgment. A rule was entered on the appellant to show cause why *258 the judgment should not be opened and the defendants pеrmitted to make a defense thereto. The rule was returnable 10 days after service. Thе answer of the appellant was filed April 25, 1948. On May 3, 1948, the decree by Judge Bauer, concurred in by Judge Laird was entered granting a new trial, vacating and striking off the judgment, and overruling the motion for judgment n. o. v. Judge McWherter filed a dissenting opinion.
It is the appellant’s contention thаt where a motion for a new trial is argued before a court en banc of three judges and one member of the court retires from office before the case is disposed of, and the remaining two judges disagree, that a valid judgment can be entered on the vеrdict. The court below that passed on this question decided, with one judge dissenting, that a judgment сould not be entered on the verdict. With this we agree. In the opinion of Judge Bauer, of thе court below, he says: “Judge George H. McWherter in his order of February 2, 1948, supra, definitely sets forth that Judge J. Hilary Keenan’s term of office expired and that Judge Keenan did not pass on the сase. In other words Judge Keenan did not take any action on the case, which our Suрreme Court has time after time .emphasized must be done by the Judges sitting as a court en banc. If Judge Keenan failed to pass on this case then it should have been reargued and heard by the court en banc, consisting of President Judge Richard D. Laird, Judge George H. McWherter and Judge Edward G. Bauer. The Prothonotary was right in placing it on the Argument List to be heard by these three judges. In the meantime counsel for the plaintiff had no right as a matter of law to take judgmеnt because as a matter of law the motion for a new trial and judgment N. O. Y. was still pending.”
The court below cited what we said in
Dobson v. Crafton Borough,
Tbe court below also said: “We have carefully considered all tbe issues involved in this cаse and are of tbe opinion that to do complete justice a new trial should be granted.” We agree with that statement.
•Tbe judgment is affirmed.