*1 Judge have believed the trial could It is obvious that plaintiff’s testimony his manner or from from own injuries exaggerating testifying greatly that he was pain; certainly periоd have of his and he and the plaintiff’s in- from defendant’s evidence believed up relatively juries pain short and cleared within gross plaintiff and that accident, time after exaggerator, faker and a liar. light circumstances, of all these facts and
In the say possibly Court cán I don’t see how this —consider- ing evidеnce for the defendant evidence, i.e., all the plaintiff, for likewise as the evidence as well credibility Court factor of the lower unknown —that granting palpably clearly its abused discretion grossly excessive, trial because verdict was a new greatly immemorial emasculate unless we wish grant Judge рower or lower a new a trial trial. I dissent.
For these reasons Appellant. v. Samacicio, Minetola 1960. Before Argued January 12, C. Jones, J., Bell, *2 JJ. Bok Musmanno, Jones, Cohen, Eagen, John A. M. him with Ralph C. McCarthy, Donohoe, for appellant.
Peter B. him with Montemuro <& Scuderi, Scuderi, appellee. for by
Opinion
1960:
Bell, May 4,
Mb. Justice
The lower Court wisely
a
discharged
rule to show
cause
the judgment
why
taken
default should not
by
be stricken off because there were no fatal defects ap
on
parent
the face of the record:
384
McGary
Pa.
119
2d
173,
A.
180-181,
497; Nixon
329
Nixon,
Pa.
Plaintiff a filed summons and a Complaint Eq- uity on 1959. Plaintiff February 19, took judgment by default March on 20, 1959, when, more than twenty days after service of his nо complaint, answer was filed. The trial on March Court, 31, a 1959, pe- after grant- tition. sworn defendant on March 1959,. ed a rule to Defendant’s judgment. she at the time of
alleged service and' not, Phila- a'resident of South 15th now, Street, had i delphia, address where the Sheriff served adult of the complaint of the on “an mеmber copy of who relation- said stated (cid:127)family .defendant, defendant-is that of son.” Defendant fur- ship said ther. she had been and at alleged married, timе with her husband at differ- living service was ent from that stated where address complaint, had Defendant further Sheriff served copy. the. acquired of the exist- alleged when she knowledge ¿hat expiration prior ence the action it days few allowed for of the an twenty days filing Answer, *3 to had a defense which she sеt action, she. petition. an Answer which was attached to her forth.in a to applicable petition judgment to open The rule in reiterated Ehnes v. Pa. 388 recently Wagner, 171 (page 104) 130 A. 2d 102, “A is addressed to open judgment of the court sound discretion whose action will below, unless an abusé of that appеal be reversed on dis not v. Pa. Gagnon 362, cretion 383 Speback, appears: 359, petitioner A. 744. must open 118 2d judgment, To a he also not aver valid must estab but only defense* impress the court equitable lish considerations which for relief: Lened Inc. the- need v. Phila Homes, with of Licenses and 386 Department delрhia Inspections, A. 406 123 2d .. .” 50, 53, Pa.
(cid:127) depositions in of the support, the instant case, In taken, pe under oath established that which rule were at of at the time service was not resident titioner of from domicile her South 15th Street, family her some upon had moved marriage petitioner which * throughout, ours. Italics
fоur months before the date
in
of service. The error
the service is further
pe
demonstrated
the fact that
titioner
just
about
of
at the
serv
years
agе
time
ice was made and could not
have had an adult
possibly
son.* This
if
would
to es
testimony,
tend
believed,
“equitable
tablish
impress
considerations which
Court with the need for
even
the testi
relief”,
though
was weak and inconsistent
mony
as to the
when
time
defendant received
of
notice
the complaint.** However,
the depositions fail to establish a valid defense on the
merits of the case.*** Hence
require
the most essential
ment of the Ehnes case
necessary
move a Court
is
judgment,
missing.
See also:
McGary
384 Pa.
119 A. 2d
173, 181,
497; Schuylkill
Trust Co. v.
Order each shall affirmed; respective party pay costs. Justice
Mr. Musmanno dissents. * Permitting testimony such did conflict with rule Vaughn Love, 299, enunciated 324 Pa. 188 A. complete face, return, absence fraud a sheriff’s full on its conclusive cannot be set on evidence, aside extrinsic since appellant attempting was not to set aside the service and oust jurisdiction sоught oppor- Pleas, of the Common but an tunity present on defense the merits. **Appellant’s mother, Samacicio, Mrs. at whose residence the *4 cоmplaint February 20, 1959, service of the was made on testified point at one that she was sure she told defendant the had about complaint during February; somе time the third week of at an- point son, made, other she testified that her on whom service was day made, told her about it the after service was which she said March; point inwas and still another at she testified that it gave complaint appellant. in March when she the to *** part, appellant’s This failure was due in entirely, if not objected counsel, every question put deponents who to the con- cerning issue, the facts of the transaction at and whо instructed deponents any questions. the to answer such
3.55 by Dissenting Opinion : Me. Justice Bok in- I think that the court has overlooked an below and justice is on .the faсe of record patent, the that depositions. (cid:127).
The sheriff’s return reads: and made known “Served to Carmela Samacicio the within named defendаnt a true and attested of the within com- handing copy plaint to Thomas Samacicio an adult the member of of said who family stated that his relation- defendant, said defendant ship to is that of son at ... 2321 S. 15th ; the St. . . house of said defendant.” dwelling Both and Anna Carmela Samacicio testified. Anna said that Thomas is her sоn and Carmela her daugh- ter that' ; Carmela married and moved 1503 Ritner that Street; Thomas received a “letter” addressed to the sheriff’s ostensibly service —аnd gave it Carmela — to his mother Anna and ; that Anna put paper a closet and about forgot it.
Carmela testified that she is twenty-one years that age; she married on October and moved 25, 1958, from 2321 South 15th Street to 1503 Ritner Street and there on living February 20, date of sheriff’s service; she is expecting child; that she was nеver served with papers. any
Reading sheriff’s return depositions and the to- it apparent is gether, sheriff served adult son of a 21-year-old a result woman, sо absurd that should, my court’s curiosity view have been aroused to- out more and find justice where lie. might see. The rule that a sheriff’s return is conclusive and that is not оn only remedy the merits but against only the sheriff justice was to effect when else nothing the ends of justice. serve Here, where the record a danger signal beárs something amiss, the rule adverted,to shuts off the process fact-finding the truth. obscures *5 answer outlined in her
Defendant’s defense is valid because to it -to not complaint. testify Shе and objected about it her counsel asked her. nothing on it, that bore cross-examination question on every be I we should to answer. think her not directing еffect its counsel’s action when approve sagacious is to hide the truth. considera equitable suggest
The depositions
(1957),
Pa. 102
Ehnes v.
required by
Wagner,
tions
the petition
as the showing
130 A. 2d
as well
after
filed
open
promptly
discovery,
re
as
or
explained
excused,
default was reasonably
and Smelting
Britton v.
Mining
Continental
quired by
I dissent. Appellant.
Wentworth Doliner,