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DUNN v. ORLOFF. (06/01/64)

THE SUPREME COURT OF PENNSYLVANIA


June 1, 1964

DUNN, APPELLANT,
v.
ORLOFF.

Appeal, No. 230, Jan. T., 1964, from order of Court of Common Pleas No. 7 of Philadelphia County, March T., 1960, No. 1778, in case of Howard M. Dunn, to use of The Federation of Jewish Agencies, to use of Russell C. Hughes, v. Michael Orloff and Miriam Orloff, his wife. Order affirmed.

COUNSEL

Robert L. Trescher, with him Edward D. Slevin, and Montgomery, McCracken, Walker & Rhoads, for appellant.

Paul Shalita, with him Melvin Lashner, and Adelman & Lavine, for appellees.

Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 414 Pa. Page 637]

OPINION BY MR. JUSTICE COHEN

On May 3, 1962, the lower court made absolute a rule to open judgment. No appeal was taken from that order even though the Act of May 20, 1891, P.L. 101, § 1, 12 P.S. § 1100 makes such an order appealable.*fn1

At the time of argument on the petition to open judgment, the pleadings before the lower court consisted of the judgment note and the judgment entered thereon, the petition to open judgment and plaintiff's answer thereto. On November 26, 1963, more than 16 months after entry of the order opening judgment and more than 13 months after the time for appeal from that order elapsed, plaintiff-appellant filed a motion

[ 414 Pa. Page 638]

    for judgment on the pleadings.*fn2 The motion was denied and this appeal was taken.

The sole impact of the motion for judgment on the pleadings was to request the court below to reconsider its prior determination that the judgment should be opened and the parties should proceed to trial. In effect, this new motion seeks to collaterally attack the lower court's prior determination.

It is not necessary to labor the point that all issues raised in the original motion to open judgment and all issues that could have been raised are similar to those which confronted the lower court on the motion for judgment on the pleadings. Hence, this motion for judgment on the pleadings is nothing more than an attempt to reargue a previous ruling from which no appeal, although available, had been taken. The same pleadings were before the court on both motions. We do not find any question raised by the petition for judgment on the pleadings that could not have been raised for decision on the original motion to open. See Adams v. Hubbard, 227 Pa. 304, 76 Atl. 17 (1910).

Disposition

Order affirmed.


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