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SOUTHWEST PHILADELPHIA PLUMBING SUPPLY v. CATANZARO. (07/17/56)

July 17, 1956

SOUTHWEST PHILADELPHIA PLUMBING SUPPLY
v.
CATANZARO.



Appeals, Nos. 19 and 20, Oct. T., 1956, from order of Municipal Court of Philadelphia County, Aug. T., 1955, No. 48, in case of South Philadelphia Plumbing Supply Co. v. Alfio Catanzaro. Order affirmed.

COUNSEL

Pershing N. Calabro, for appellant.

Maurice J. Friedman, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P.j., absent).

Author: Gunther

[ 181 Pa. Super. Page 210]

OPINION BY GUNTHER, J.

This is an appeal from the granting of a motion to strike off an appeal from a magistrate's judgment and from the discharge of a petition for leave to file an appeal nunc pro tunc.

The judgment of the magistrate was entered July 19, 1955. On July 27, 1955 defendant appealed. The transcript was filed in the Municipal Court August 2, 1955. The first return day for the filing of appeals after the judgment was taken was August 1, 1955.

The basis of the court's action in granting the motion to strike off was the omission by the defendant to file his transcript on or before August 1, 1955.

[ 181 Pa. Super. Page 211]

The Act of May 18, 1933, P.L. 809, Section 2; 17 P.S. 703 provides that transcripts of judgments of magistrates shall be filed in the Municipal Court of Philadelphia. The act gave magistrates' courts in the City of Philadelphia all powers and the same jurisdiction formerly exercised by aldermen and justices of the peace and rendered appeals from magistrates subject to the same law.

Section 2 of the Act of May 1, 1861, P.L. 535, 42 P.S., Section 926 provides that all appeals from aldermen shall be filed in the Court of Common Pleas of the City and County of Philadelphia on or before the next monthly return day. This legislation fixed the time within which the transcript of an appeal must be filed in the court after the appeal is taken, and under our Appellate Courts' decisions an appeal to the Municipal Court from the judgment of a magistrate must be filed on or before the monthly return day next succeeding the date of the appeal. In the American Travel and Hotel Directory v. Culm-Burn Equipment Company, Inc., 82 Pa. Superior Ct. 264, an appeal had been taken within the proper time limit but counsel had neglected to file the transcript until after the monthly return day had passed. The action of the court below in striking off the appeal was affirmed. In Ward v. Letzkus, 152 Pa. 318, 25 A. 778, an appeal was filed after an intervening return day had passed and the lower court granted leave to file appeal nunc pro tunc. In reversing the lower court the Supreme Court decided that appeals from magistrates ...


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