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MARCHESE v. MARCHESE. (10/16/74)

October 16, 1974

MARCHESE, APPELLANT,
v.
MARCHESE.



Appeal, No. 228, Jan. T., 1974, from decree of Court of Common Pleas of Montgomery County, No. 73-6443, in case of Joseph Marchese v. Stephen Marchese and Julia Marchese, his wife. Decree reversed and case remanded.

COUNSEL

John Rogers Carroll, for appellant.

Paul W. Callahan, with him Fox, Differ, Callahan & Ulrich, for appellees.

Before Jones, C.j., Eagen, O'brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 457 Pa. Page 626]

OPINION BY MR. CHIEF JUSTICE JONES.

This is a direct appeal from the decree of the Court of Common Pleas of Montgomery County granting the motion of defendants-appellees for summary judgment

[ 457 Pa. Page 627]

    and dismissing the complaint in equity of plaintiff-appellant. The substance of appellant's complaint, filed May 24, 1973, was that a 1956 deed, purporting to convey a certain piece of land from appellant and his wife to appellees, husband and wife, was a forgery and that appellees should, therefore, be removed from the premises. Appellees' answer denied the allegations of forgery and also raised, inter alia, the defenses of laches and estoppel via conclusory pleading. Appellant then filed a reply to the New Matter raised in the answer.

On September 7, 1973, appellees filed a motion for summary judgment accompanied by affidavits of Judge Robert W. HONEYMAN and Mrs. Vernice Pugh. Appellant made no immediate response to this motion. Argument on this motion was scheduled for November 26, 1973. On November 23, 1973, appellant's counsel filed a Petition for Leave to Withdraw, which was granted by the court. After appellees had presented oral argument on the motion, the court continued the matter until December 10, 1973, in order to permit appellant to obtain new counsel and to prepare a brief and argument on the motion. In so doing, however, the court directed that such brief and argument could relate only to the record as it then existed. Nevertheless, on December 7, 1973, appellant, per his new counsel, filed a brief with counter-affidavits attached.

On December 19, 1973, the court below entered its decree granting appellees' motion for summary judgment. In its subsequent opinion of April 15, 1974, that court noted that it had refused to consider the counter-affidavits of appellant since they were filed subsequent to the date when the record had been closed. In addition to holding that summary judgment should be entered pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure since appellant had elected to rely on his pleading rather than submitting affidavits, the

[ 457 Pa. Page 628]

    court below held that the action was barred by the ...


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