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LEOMPORRA v. AMERICAN BAKING COMPANY (07/09/62)

THE SUPERIOR COURT OF PENNSYLVANIA


July 9, 1962

LEOMPORRA
v.
AMERICAN BAKING COMPANY, INC., APPELLANT.

198 Pa. Super. 545, 178 A.2d 806.

Author: Flood

[ 198 Pa. Super. Page 551]

SUPPLEMENTAL OPINION SUR REARGUMENT BY FLOOD, J., July 9, 1962:

By petition for reargument the plaintiffs seek an order permitting their suit to be transferred to the court of common pleas on the grounds that (1) the suit originally was instituted in the county court rather than the common pleas court because of an error in the prothonotary's office, (2) the county court declined to transfer the suit to the common pleas court after the principal obligation and certain interest had been paid because it erroneously believed that the balance of interest and attorney's fees could be recovered, if at all, only in the county court, and (3) an order striking off the judgment may have the effect of depriving the plaintiffs of any remedy to recover attorney's fees because a separate suit cannot be brought to recover them. In its answer the defendant contends that the cases authorizing transfers of suits from one court to another are inapplicable "since the initial judgment in this case was void and could not be transferred".

Section 10 of the Act of July 12, 1913, P.L. 711, as amended, 17 PS ยง 693, provides, in part, as follows: "... The said court [Municipal Court, now County Court, of Philadelphia] shall also have authority, with the consent of the court of common pleas, upon the application of the plaintiff, to transfer to that court all suits wrongfully brought in the municipal court in excess of its jurisdiction ..."

The general rule is that an error in entering a proceeding in the wrong court may be corrected and the case certified to the proper tribunal. Romberger Appeal, 190 Pa. Superior Ct. 11, 151 A.2d 805 (1959). In Carney v. Hughes, 186 Pa. Superior Ct. 576, 142 A.2d 383 (1958), we held that the County Court of Allegheny County could properly transfer a suit to the common pleas court even after the statute of limitations had expired. And in Gaitley's Adoption, 303 Pa. 200,

[ 198 Pa. Super. Page 552154]

A. 368 (1931), the Supreme Court approved an order certifying an adoption proceeding from a common pleas court to an orphans' court after final decree, stating: "... we have heretofore held in many cases that an error entering a proceeding in the wrong court may be corrected and the case certified to the proper tribunal (Brickway's Case, 80 Pa. 65, 70; Com. v. March, 248 Pa. 434, 439-40), even after final decree: Brown v. Com., 78 Pa. 122, 127."

Where the authority and procedure for transferring a suit is set forth in a statute which, by its terms, is applicable only to "pending" causes, it may be that the right of transfer is lost once judgment is entered. See L. & N. Sales Co. v. Stuski, 188 Pa. Superior Ct. 117, 146 A.2d 154 (1958). However, the act before us contains no language limiting the right of transfer to "pending" causes, and, in view of our prior appellate decisions liberally construing the right of transfer, we cannot attribute to the legislature an intention, not expressed, to so limit the right of transfer. On the contrary, the absence of any limiting language reinforces our conclusion that the legislature intended the transfer provisions in question to apply, not only to "pending" actions, but also to the large number of actions which are instituted in the County Court of Philadelphia by confession of judgment.

Since a transfer will not deprive the defendant of its right to contest the plaintiffs' claim for attorney's fees, and an order striking off the plaintiffs' judgment appears to be unduly harsh under the circumstances shown here, we have concluded that the plaintiffs' application for relief is meritorious and should be granted.

The order of this court entered March 21, 1962, is hereby vacated; the order of the court below discharging the defendant's rule to strike off the judgment also is vacated and the record is remanded with directions to discharge the said rule in the event the plaintiffs cause their said suit to be transferred to the court of common pleas within thirty (30) days from the date of this order, otherwise to make the said rule absolute.

Disposition

The order of this court entered March 21, 1962, is hereby vacated; the order of the court below discharging the defendant's rule to strike off the judgment also is vacated and the record is remanded with directions to discharge the said rule in the event the plaintiffs cause their said suit to be transferred to the court of common pleas within thirty (30) days from the date of this order, otherwise to make the said rule absolute.

19620709

© 1998 VersusLaw Inc.



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