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STRAUSS v. WEINSTEIN. (03/19/64)

March 19, 1964

STRAUSS, APPELLANT,
v.
WEINSTEIN.



Appeal, No. 410, Oct. T., 1963, from order of County Court of Philadelphia, June T., 1963, No. 6070-E, in case of Ida Strauss v. Samuel Weinstein. Order reversed.

COUNSEL

Lionel B. Gumnit, for appellant.

Herbert S. Levin, for appellee.

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

Author: Flood

[ 203 Pa. Super. Page 390]

OPINION BY FLOOD, J.

The plaintiff in August, 1960, entered judgment by confession in an amicable action for the rent due for the balance of the term of a five-year lease executed in 1956. The court made absolute a rule to open the judgment upon the defendant's allegation of an oral novation in December, 1958, discharging him from any further liability under the lease. The plaintiff denied the allegation and the parties went to trial on this issue.

At this trial the plaintiff, after putting in part of her case, suffered a voluntary non-suit. Later she moved to take off the non-suit. Although such a motion is a prerequisite to a new trial when there has been a compulsory non-suit, which is conclusive if not taken off (Pa. R.C.P. No. 213(b); Act of March 11, 1875, P.L. 6, § 1, 12 PS § 645), it has no function following

[ 203 Pa. Super. Page 391]

    a voluntary non-suit, which determines nothing as to the merits (Pa. R.C.P. No. 231(a)). This rule provides: "After a discontinuance or voluntary non-suit the plaintiff may commence a second action upon the same cause of action upon payment of the costs of the former action."

The plaintiff followed Pa. R.C.P. No. 231(a) literally*fn1 by commencing a new action. Before she did so, apparently in an attempt to satisfy the requirement of that rule that she pay "the costs of the former action" before retrying the case, her attorney requested the defendant's attorney to execute an order to satisfy the judgment upon payment of costs only. When this was done, her attorney filed this order with the prothonotary and paid the costs. The prothonotary then marked the docket: "By order of the Defendant's attorney filed, the judgment is satisfied. Paid $7.00."

After the plaintiff filed her complaint in the new action, the defendant filed preliminary objections on the ground that the action was res judicata because the plaintiff's judgment in the first action had been marked satisfied. The court below sustained these objections and dismissed the complaint.

While the order appealed from appears correct on the face of the record, closer scrutiny reveals that the satisfaction was entered in error and, even though the plaintiff herself was chiefly responsible ...


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