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TABAS v. ROBERT DEVELOPMENT COMPANY ET AL. (11/16/72)

decided: November 16, 1972.

TABAS
v.
ROBERT DEVELOPMENT COMPANY ET AL., APPELLANTS



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 3214, and judgment of Court of Common Pleas of Montgomery County, No. 70-15072, in case of Charles L. Tabas et al. v. Robert Development Company et al.

COUNSEL

Thomas B. Rutter and Henry L. Menin, with them Litvin and Rutter, for appellants.

Daniel Sherman, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Concurring and Dissenting Opinion by Packel, J. Jacobs, J., joins in this concurring and dissenting opinion.

Author: Spaulding

[ 223 Pa. Super. Page 292]

These two appeals arise from the same cause of action and facts. On November 20, 1970, creditor appellees Tabas filed a complaint and confession of judgment with the Prothonotary of Philadelphia County based on a judgment note signed by all five appellants. The appellees' attorney inadvertently failed to include an affidavit of nonmilitary service, as required by the local rules of civil procedure.*fn1 On November 23, appellants Berman filed a petition to show cause why the judgment by confession should not be stricken off because of the failure to include said affidavit or in the alternative why the judgment should not be opened. Judge Edward J. Bradley of the Court of Common Pleas of Philadelphia signed an order allowing the rule to show cause and also directing "all proceedings in the meantime to stay".

Appellees subsequently filed an affidavit of nonmilitary service on November 25, 1970, and their answer to the petition to strike off or open the judgment on December 23, 1970. Between these two filing dates, appellees obtained certified copies of the docket entries in Philadelphia County and certification of the judgment and entered them with the Prothonotary of Montgomery County, who transferred the judgment on November

[ 223 Pa. Super. Page 29327]

, 1970. Proceedings continued in Philadelphia.*fn2 On February 10, 1971, appellees filed a petition to allow the Affidavit of Non-Military Service filed November 25, 1970 to be allowed nunc pro tunc to November 20, 1970. The petition was answered and argument heard by Judge Ned L. Hirsh. On October 26, 1971, he entered an order granting appellees' petition, denying appellants' petition to strike off the judgment, and continuing the case for the taking of depositions relevant to appellants' petition to open the judgment. Appellants Berman appeal from the granting of appellees' petition and the denial of their petition to strike the judgment (No. 60).

Subsequent to the transfer of the judgment to Montgomery County on November 27, 1970, separate proceedings on the judgment took place in the Court of Common Pleas of that county. On March 15, 1971, all five appellants filed a petition to strike the transferred judgment on the basis that the transfer was improper and violative of Judge Bradley's order staying all proceedings. After argument, Judge Louis D. Stefan of the Court of Common Pleas of Montgomery County, refused to do so and dismissed this petition on December 9, 1971. Appellants appeal from his order (No. 330).

No. 60

Appellants Berman contend that the Court of Common Pleas of Philadelphia erred in allowing the affidavit of nonmilitary service to be entered nunc pro tunc after ...


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