Fish v. Waters , 75 Pa. D. & C.2d 162 ( 1976 )

DOTY, J.,

This matter is before the court for consideration of plaintiffs motion to quash defendant’s appeal to the Common Pleas Court from a default judgment entered against defendant in the Municipal Court of Philadelphia. After oral argument, memoranda, a careful consideration of the entire record and the applicable law, we are convinced that plaintiffs motion must be granted.

This civil action was instituted in the Municipal Court of Philadelphia and, on March 8, 1976, a judgment by default was entered against defendant when defendant failed to appear. Subsequently, defendant filed a petition to open the judgment and when defendant again failed to appear at hearing, the petition was denied by the Hon. Joseph R. Glancey on June 4, 1976.

Thereafter, defendant filed an appeal to the Court of Common Pleas. It is clear that such appeal does not lie. Rule 117 of the Civil Rules of the Philadelphia Municipal Court, which provides for appeals, states that Rule 119 of the said court exclusively governs the procedure relating to opening or striking judgments. Rule 119, in turn, provides for procedure for filing a petition to open a default judgment. Moreover, Rule *31 of the Common Pleas Court of Philadelphia, which deals with appeals from the Civil Division of the Municipal Court of Philadelphia to the Common Pleas Court of Philadelphia, specifically provides that where a default judgment was entered and not opened in the Municipal Court, the party against whom the judgment was entered may not appeal on the merits to the Common Pleas Court. See particularly, the comment to Rule *31.

Thus, it is clear that the appeal of defendant which purports to be an appeal to have the matter listed for a de novo hearing on the merits, should not be permitted. Accordingly, and for the foregoing reasons, we enter the following

ORDER

And now, October 12, 1976, it is ordered that plaintiffs motion to quash defendant’s appeal is hereby granted, without prejudice to his right to refile in the Municipal Court of Philadelphia a petition to open the default judgment heretofore entered against him.