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PESCATORE v. SABATO (11/13/56)

November 13, 1956

PESCATORE
v.
SABATO, APPELLANT.



Appeal, No. 164, Oct. T., 1954, from judgment and order of Municipal Court of Philadelphia County, Jan. T., 1951, No. 30, in case of Joseph A. Pescatore v. Samuel Sabato. Judgment and order reversed.

COUNSEL

Benjamin H. Hellman, for appellant.

Vincent C. Veldorale, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Rhodes

[ 182 Pa. Super. Page 216]

OPINION BY RHODES, P.J.

A recital of the procedure in this case is sufficient to require a new trial. The appeal is by defendant from an order of Judge BONNELLY of the Municipal

[ 182 Pa. Super. Page 217]

Court of Philadelphia County dated January 15, 1954, vacating a previous order of November 5, 1953, granting defendant a new trial.

Plaintiff, on January 3, 1951, brought an action in trespass against defendant in the Municipal Court. In his complaint plaintiff averred that on November 11, 1950, his automobile was damaged by an automobile owned and operated by defendant. Defendant in his answer averred that his automobile had been stolen and at the time was being operated by a person other than defendant. The case was heard before a judge without a jury, who found for plaintiff in the sum of $257.75. On October 29, 1953, defendant's motions for new trial and for judgment n.o.v. were dismissed, and judgment was entered for plaintiff. On November 5, 1953, upon consideration of defendant's petition an order was made vacating the court's order of October 29, 1953, and granting defendant a new trial. On December 7, 1953, plaintiff appealed to this Court from the order of November 5, 1953, granting defendant a new trial. The order of November 5, 1953 (filed November 12, 1953) was signed as follows: "By the Court for the Court en banc, BONNELLY, J." Defendant had sought a new trial reciting, inter alia, in his petition that the local police records disclosed that his automobile had been reported stolen at the time of the alleged accident.

On January 5, 1954, counsel for plaintiff filed, in the office of the Prothonotary of the Superior Court, a certificate of discontinuance of plaintiff's appeal, apparently without the knowledge of defendant. The discontinuance of plaintiff's appeal was followed by this order in the Municipal Court: "Jan. 15, 1954. Upon reconsideration of order of Nov. 5, 1953, granting new trial is hereby vacated for reason Court en banc would

[ 182 Pa. Super. Page 218]

    not concur. BONNELLY, J." Thereupon defendant appealed to this Court on March ...


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