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WARNER v. CORTESE (03/10/72)

decided: March 10, 1972.

WARNER, ET AL.
v.
CORTESE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Miles Warner and Thomas J. McCormack, Individually and as Partners Practicing Law as Warner & McCormack v. Americo V. Cortese, No. 3555, September Term, 1970. Transferred to the Commonwealth Court of Pennsylvania from the Supreme Court of Pennsylvania, November 8, 1971.

COUNSEL

Miles Warner, with him Thomas J. McCormack and Warner & McCormack, for appellants.

W. Clark Hanna, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 5 Pa. Commw. Page 52]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County refusing the appellants' motion for a summary judgment and granting

[ 5 Pa. Commw. Page 53]

    summary judgment to the appellee. The appeal was first taken to the Supreme Court, but by an order dated November 8, 1971, it was transferred to this Court.

The appellants instituted an action in mandamus against the appellee, Prothonotary of the Court of Common Pleas of Philadelphia County, to compel him to accept praecipes for simultaneous entry of default judgment and assessment of damages in eight trespass cases in which appellants represent the plaintiffs therein as attorneys. The appellee prothonotary had refused to accept the praecipes to assess damages until a minimum of ten days had elapsed from the entry of judgment, even though ten days notice of intention to assess damages had been given to each defendant concerned prior to the entry of judgment.

The issues before this Court are whether or not the appellee prothonotary is required by the Pennsylvania Rules of Civil Procedure to wait ten days after the entry of judgment before accepting a praecipe to assess damages, or, in the alternative, whether or not the appellee prothonotary has the discretion to establish such a procedure if he so desires. It must also be considered whether or not mandamus is the proper remedy in the event these questions are answered in the negative.

The procedure here in question is controlled by Pennsylvania Rule of Civil Procedure 1047(b).*fn1 This

[ 5 Pa. Commw. Page 54]

    rule does not require an interval of ten days between the entry of judgment and the filing of a praecipe to assess damages; its only requirement as to time is that notice of intention to assess must be given to the ...


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