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COMMONWEALTH v. ROBERTS. (03/20/57)

March 20, 1957

COMMONWEALTH, TO USE, APPELLANT,
v.
ROBERTS.



Appeal, No. 165, April T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1956, No. 1911, in case of Commonwealth of Pennsylvania v. David B. Roberts et al. Judgment reversed.

COUNSEL

Julius J. Lorenzi, for appellant.

William H. Eckert, with him Ralph H. Smith, Jr., Roderick G. Norris, J. M. McCandless, and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Ervin

[ 183 Pa. Super. Page 206]

OPINION BY ERVIN, J.

This is an appeal by plaintiff from the order of the Court of Common Pleas of Allegheny County sustaining preliminary objections in the nature of a demurrer and entering judgment in favor of the defendants in an action in assumpsit brought by Pete Orris, an individual, against David B. Roberts, Prothonotary of Allegheny County, and the Continental Casualty Company, as surety on the prothonotary's bond.

The pertinent facts which are not in dispute are stated in the opinion of the court below as follows: "Peter Orris, the use plaintiff in this action, is the payee in a judgment note given by one Edith M. Whitaker, dated August 11, 1952. On August 15, 1952, an attorney for the plaintiff presented to the cashier in the Office of the Prothonotary of Allegheny County a judgment confessed by one George A. Dawson, Esq., as attorney for debtor, on said judgment note in the amount of $800.00. At the same time plaintiff's attorney paid the statutory fee required for filing the judgment. After the cashier had assigned a number to the judgment, viz., D.S.B. No. 1337 October Term, 1952, he handed the same to one Harry Haas, 'who is employed by the County of Allegheny in the Office of the Prothonotary of the Court of Common Pleas of said County as a clerk to index judgments.'

"Judgments are indexed in the Office of the Prothonotary of Allegheny County under a system of key letters, in conformity with the 'Russell Index System'. The proper index letters for 'Whitaker', under that system, are the letters 'T R'. Mr. Haas in indexing said judgment omitted the key letter 'T' and indexed the same in the section of the judgment index having the key letter 'R'.

[ 183 Pa. Super. Page 207]

"The plaintiff alleges in his complaint that, at the time the judgment note was filed in the Office of the Prothonotary, Edith M. Whitaker was the owner of certain real estate in Allegheny County which she conveyed to third parties for $11,000.00, by a deed dated October 17, 1952, and recorded on October 18, 1952. Plaintiff further alleges that on June 16, 1955, he caused to be issued a writ of fieri facias at No. 613 July Term, 1955, and on September 8, 1955, a writ of alias fieri facias, both of which proved to be unsuccessful, and that the plaintiff firmly believes that said Edith M. Whitaker is now execution proof.

"It is agreed by stipulation filed in this case that 'the indexing of the judgment' against Edith M. Whitaker 'was done wholly and solely by said Harry Haas who is paid by the County of Allegheny out of its general funds.'"

The sole issue here involved is whether the Prothonotary of Allegheny County is liable on his official bond to a judgment creditor who suffered damages as a result of the failure of the prothonotary's ...


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