Malicia v. Proietta Catering & Cocktail Lounge, Inc. , 270 Pa. Super. 342 ( 1979 )

HESTER, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County striking a judgment entered by confession.

Appellant filed a judgment note in August of 1976 and after damages were assessed, a writ of execution issued on September 1, 1976.

Forty-four days later, appellee filed a petition to open and/or strike the previously entered judgment. Appellant filed an answer and new matter.

On April 6, 1977, the lower court struck the judgment by the following order:

“AND NOW, this 6th day of April, 1977, it is hereby Ordered and Decreed that the judgment entered by confession in this matter shall be stricken.

Defendant shall have 20 days from the date of this Order within which to file a responsive pleading to the Complaint.”

On April 27, 1977, appellant praeciped to enter judgment for failure of appellee to file a responsive pleading. On May 6, 1977, appellant praeciped for a writ of execution. On June 21, 1977, appellee petitioned to open/or strike the judgment.

The lower court by the following order; struck the judgment:

“AND NOW, to-wit, this 17th day of June, 1977, upon consideration of the defendant’s Petition to Strike Judgment in the above captioned matter, it is Ordered and Decreed that:

1) The Order of this Court entered on April 6, 1977 is hereby vacated;'

2) The Judgment entered by Default on April 27, 1977 pursuant to the aforementioned Order is hereby stricken;

3) The Writ of Execution filed on May 6, 1977 is hereby stricken;

4) The pleadings in this matter shall be limited to the following:

a) Plaintiff’s Complaint for Confession of Judgment, Averment of Default and Praecipe to Assess Damages; and

b) Defendant’s Petition to Open Judgment; and

c) Plaintiff’s Answer to Defendant’s Petition to Open Judgment.

5) There shall be no further pleadings in this matter prior to trial.”

Appellant contends that the court improperly struck the judgment, which was proper on its face.

Our review here covers only the validity of the order striking the default entered on April 27, 1977. We need not discuss the merits of this case since appellant did not challenge the court’s original order of April 6, 1977.

Appellee asserts that Pa.R.C.P. 2960 does not require an answer after a judgment by confession is opened and the lower court, recognizing the error of its order of April 6, 1977, regarding a responsive pleading, properly struck the judgment.

Our reading of Pa.R.C.P. 2960 leads us to believe that indeed no responsive pleading was necessary, hence it was error to enter judgment based on appellee’s failure to file an answer.

Rule 2960 reads:

If a judgment is opened in whole or in part the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition, answer and the order of the court opening the judgment. There shall be no further pleadings. ...

We find this language clear and unambiguous. Thus following Pa.R.C.P. 127, we must give meaning to the letter of the rule. Only where a rule is not explicit or is ambiguous are we permitted to mold our own interpretation.

Opening a default judgment is an appeal to the equitable power of the court. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973).

Here the court improperly ordered the appellee to file a responsive pleading in contradiction of Pa.R.C.P. 2960. Recognizing its error, the court opened the default judgment entered when appellee filed no pleading.

We find no abuse of discretion and affirm the order of the lower court.

WIEAND, J., files a concurring opinion.