In my opinion the judgment entered on the verdict should not be disturbed; I think that the court below erred when it made the rule to open the judgment absolute. There was no irregularity in the proceedings which led up to the verdict of the jury, and I do not consider National Finance Corp. v. Bergdoll, 300 Pa. 540,151 A. 12, and similar cases controlling. The defendant had been properly served; the case was listed and tried in its regular turn. The petition, to which a responsive answer was filed, does not satisfactorily explain defendant's delinquency. No testimony was taken on the petition and answer but argument was heard on petition and answer alone; and it appears that defendant so ordered the case for hearing. Therefore all relevant averments of the answer must be accepted as true, and all facts in the petition which were denied in the answer must be rejected. M.A.Long Co. v. Keystone Portland Cement Co., 302 Pa. 308,153 A. 429; Welmet Building Loan Ass'n v. Matchica, 310 Pa. 275,165 A. 227; Hild v. Dunn, 310 Pa. 289, 292, 165 A. 228; Harr,Secretary of Banking et al. v. Bernheimer et al., 322 Pa. 412,185 A. 857; Feldman v. Leace, 71 Pa. Super. 239; Rebic etal. *Page 256 v. Gulf Refining Co., 122 Pa. Super. 149, 186 A. 236. But the petition does not even state that the attorney was retained by defendant to defend the suit in question, or to whose inadvertence the neglect to appear was due. In short the petition does not set forth facts which disclose that defendant suffered the judgment to be entered for any excusable reason.
In addition, the petition to open the judgment was not signed and sworn to by defendant, and no reason appears therein for its having been executed and sworn to by an attorney. See Borteck etal. v. Goldenburg et al., 87 Pa. Super. 602. Defendant should have explained on his own oath the cause of his apparent laches, and have sworn to a good defense; and if the allegations were disputed by a responsive answer the issues thus made should have been supported in the usual manner.
I would therefore reverse the action of the court below, and affirm the judgment entered on the verdict in this case.
KELLER, P.J., concurs in this dissent.