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LOJESKI v. QUIRK (03/17/64)

March 17, 1964

LOJESKI
v.
QUIRK, APPELLANT.



Appeal, No. 368, Oct. T., 1963, from order of County Court of Philadelphia, June T., 1962, No. 4455-E, in case of Walter Lojeski et ux. v. John J. Quirk, Jr. Order affirmed.

COUNSEL

Michael D. Foxman, with him Blank, Rudenko, Klaus & Rome, for appellant.

Edward Greer, with him Folz, Bard, Kamsler, Goodis & Greenfield, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 202 Pa. Super. Page 472]

OPINION BY ERVIN, J.

In this appeal we adopt the following opinion prepared and filed by Judge FRANCIS F. BURCH for the court below: "This is an appeal from an order discharging charging defendant's rule to strike off a default judgment.

"The complaint in assumpsit was filed June 28, 1962, and service was made on July 30, 1962. The default judgment was entered on September 17, 1962.

"On March 6, 1963, the defendant filed a 'Motion for a Rule to strike off judgment' on the ground that service of the complaint was made thirty-two days after filing of the complaint in violation of Pa. R.C.P. 1009, which provides that service of the complaint must be made within thirty days after filing.

"The plaintiff filed an answer setting forth that the thirtieth day was Saturday and the thirty-first day was Sunday. The answer also avers that the defendant entered an appearance on Junuary 17, 1963, prior to filing of the motion to strike on March 6, 1963.

"There the thirtieth day falls on a Saturday, is that day as well as Sunday, omitted from the computation? If the answer is in the affirmative, service of the complaint in this case on Monday, which was in point of time the thirty-second day, was proper service.

"The defendant relies on Pa. R.C.P. 106(b) which provides: 'Whenever the last day of any such period shall fall on Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United ...


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