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GREAT AMERICAN CREDIT CORPORATION v. THOMAS MINI-MARKETS (09/23/74)

decided: September 23, 1974.

GREAT AMERICAN CREDIT CORPORATION
v.
THOMAS MINI-MARKETS, INC. (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, No. 3352, in case of Great American Credit Corporation v. Thomas Mini-Markets, Inc., Warren D. Scruggs Associates, Inc., Warren D. Scruggs, and Continental Bank.

COUNSEL

Lawrence C. Hutchings, with him John B. Brumbelow, and Blank, Rome, Klaus & Comisky, for appellant.

Lewis Jay Gordon, with him Herbert Brener, and Meshon and Brener, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 230 Pa. Super. Page 211]

The sole issue presented in this appeal is whether a court has the power in a contested matter to vacate sua sponte an order or judgment more than 30 days after the close of the term of court in which that order or judgment was entered.

In the case before us, Great American Credit Corp. instituted an assumpsit action against Thomas Mini-Markets,

[ 230 Pa. Super. Page 212]

Inc., Warren D. Scruggs Associates, Inc., and Warren D. Scruggs, individually, to recover the balance due on an installment note and against Continental Bank as guarantor. For reasons not pertinent herein Continental filed a Motion for Summary Judgment. Receiving no timely answer to the motion and believing it to be uncontested, the court entered an order granting Continental's motion for summary judgment.

Subsequently, it was brought to the attention of the court that a letter from appellee, "requesting an extension of time within which to answer the motion, was inadvertently mislaid in transmission through court processes . . . ." Memorandum Opinion by Judge Hirsh at 2. The court, more than 30 days after the close of the term of court, vacated its previous order and entered an order dismissing the Motion for Summary Judgment. It is from this latter order that Continental Bank appeals.

It is well established at common law that the power of a court to open or modify a judgment entered in a contested matter ordinarily expires with the term of entry. See, e.g., King v. Brooks, 72 Pa. 363 (1872); Catlin v. Robinson, 2 Watts 373 (Pa. 1834).*fn1 Seeking to prevent any harshness in the application of this rule the legislature adopted the Act of June 1, 1959*fn2 which extended by a maximum of 30 days the time

[ 230 Pa. Super. Page 213]

    period within which the courts may ordinarily act. Continental asserts that by virtue of the common law rule even as amplified by the Act of 1959 the court lacked the power to vacate its first order. It points out that the order granting the motion for summary judgment was issued on January 31, 1973 and the second order vacating the prior order was filed on June 26, 1973, nearly 5 months later. Continental notes that this is in conflict with the purpose ...


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