Rihr v. Domke Et Ux.

Per Curiam, In this appeal from an order, refusing to strike off a judgment entered in an amicable action in ejectment, appellants assert, what they claim to be “a perfect right to take full advantage of the act of the lower Court in *479 this case” to retain possession of ,a rented property to which fhey clearly are not entitled-. (Italics.added..), , Thisiis.the seqond time the case has.been before this. Court.-. When it wan here beforq, .th.e appeal was, quashed because it was premature. Rihr v. Domke, 163 Pa. Superior Ct. 482, 62 A. 2d 766. Rule 125 B of the. Court-of. Common .pleas-of Alle,-. gheny County provides, in part:: “(e) Upon thq filing.,of. an.amicable.action in ejectment,.based pn warrant of attorney, a,rule.tp show, cause, shall issue as of course.”, and “(h) If an answer, is .filed raising an issue, of ;fact, the petitioner may apply to: the. Assignment Boom for. U date of hearing, not more-than, ten, (10.) -days, after such application, and notice, thereof shall .be given to. respondent or his attorney of record, and upon the, (late so fixed, for a hearing,, the matter shall; be - heard 4by the Judge in the Assignment Boom; or assigned .to,a Judge for disposition thereof.” The praecipe for the rule to show cause .and the Declaration in Ejectment were filed October 13, 1918, and, after due notice, defendants on October 25, .1918, filed their answer to the Declaration,, praying; -that ‘/judgment [be entered] in favor of the defendants.” On the following day, to wit, October. 26, 1948, ,the Assignment Boom Judge, without notice to defendants,- entered the following -order; “Buie.in the above entitled case is made absolute.” That is , the “act of .the lower -Court” of which appellants seem determined Ato-take ipil advantage.” On the following day, to, wit,. October. 27> 1948, a confession of judgment by .virtue of. authority in. the lease was filed. ■ . ,- . Following fhe.quashing, of the premature appeal,, appellants petitioned the. learned .court.belpyetp, ¡strike.off the judgment on the sole ground.,that, “The said ¡judgment was entered without the. defendants’ having a hearing,” as provided by Buie 125 B (h), and “without *480 notice having been given to defendants or their attorney of the time and place of applying for said Order making said Rule absolute.” But; as stated in the opinion of the learned court below, section (h) provides that “notice of the hearing so fixed shall be given to defendants or their counsel. This does not mean notice of the application. It means notice of the date of hearing, if a hearing he awarded.” (Italics added.) Since the Assignment Room Judge decided that defendants’ answer did not entitle them to á hearing, they should have petitioned the court to open the judgment entered by confession on the warrant of attorney contained in the lease. This they did not do. Instead they moved to strike off the judgment. In the words of the Supreme Court, in Dando v. Brobst, 318 Pa. 325, 330, 177 A. 831, 833, “We do not approve the conduct of defendants’ counsel in not moving to open the judgment and thus giving the court below an opportunity to pass upon the case on its merits.” We reiterate what we said oh the former appeal, Rihr v. Domke, 163 Pa. Superior Ct. 482, 483, 62 A. 2d 766, 767: “There is nothing in the Federal Housing and Rent Act and the local rule adopted pursuant thereto that relieves an aggrieved party from the duty of so proceeding”; that is, of proceeding as provided by the “. . . statutes [which] give legislative sanction to the entry of amicable actions and the confession of judgment thereon”: Equipment Corp. of America v. Primos Vanadium Co., 285 Pa. 432, 437, 132 A. 360, 362, and the uniform practice prior to the adoption of the aforesaid rule. To construe the rule in the manner contended for by appellants would be in direct violation of the ruling of the Supreme Court in the case last cited. The order is affirmed.