Whatley v. Baynard , 1970 Pa. LEXIS 908 ( 1970 )

437 Pa. 498 (1970)

Whatley
v.
Baynard, Appellant.

Supreme Court of Pennsylvania.

Argued November 14, 1969. April 22, 1970.

Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

Samuel Merovitz, for appellant.

Harry J. Oxman, with him Milton D. Soiferman, and Silverberg & Oxman, for appellee.

OPINION PER CURIAM, April 22, 1970:

This is an appeal from an order entered below striking from the record a judgment of non pros. in an action seeking damages for injuries suffered in an automobile accident.

In striking the judgment, the court took into consideration facts outside the record. This was error. A motion to strike off a judgment of non pros., regular on its face, challenges only defects appearing on the face of the record. Cox v. Felice Perri & Sons, 412 Pa. 415, 195 A. 2d 79 (1963). However, since the facts which moved the learned court below to strike the judgment appear to have sufficient merit to warrant the court in the exercise of its discretion to open the judgment, and the court below could properly treat the motion to strike as one to open,^[1] we will vacate the order appealed from and remand the record for the purpose of permitting the court below to consider the motion as one to open the judgment.

It is so ordered.

NOTES

[1] Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A. 2d 63 (1962).