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DORMONT REALTY v. BERTHULA CYRUS (04/13/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 13, 1978.

DORMONT REALTY, INC.
v.
BERTHULA CYRUS, APPELLANT

No. 514 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County at No. G.D. 77-02975, Civil Division - Equity.

COUNSEL

Michael J. Kearney, Jr., Braddock, with him Mark B. Greenblatt, Pittsburgh, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Jacobs, President Judge, and Price, J., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 253 Pa. Super. Page 205]

Appellant contends that the lower court erred in holding that it did not have jurisdiction to consider her petition to open and/or strike a judgment entered in the court of common pleas on the transcript of a justice of the peace. Because the lower court failed to consider the question of when appellant received notice of the entry of the justice of peace judgment, we remand for an evidentiary hearing on that issue.

The facts giving rise to the instant appeal are as follows: On October 7, 1976, appellee filed a landlord and tenant complaint against appellant in which it requested possession of the premises and $680.00 in rent remaining due and unpaid from July, 1976, to October, 1976, inclusive. At a hearing before a justice of the peace on October 28, 1976, appellant based her defense upon the statutory proscription against evictions from residential dwellings while a tenant is depositing rent in escrow pursuant to a certification that the premises are unfit for human habitation.*fn1 At the close of the hearing, the justice of the peace took the case under advisement. The disposition portion of the complaint shows that the justice of the peace entered judgment in favor of appellee for possession and $680.00 plus $35.00 in costs on November 23, 1976, 26 days after the hearing.

[ 253 Pa. Super. Page 206]

On February 10, 1977, appellee filed a writ of execution instructing the sheriff of Allegheny County to attach appellant's escrowed funds in the possession of the Mellon Bank, garnishee, and the Allegheny County Health Department, garnishee. On February 11, 1977, the Mellon Bank notified appellant that it had been served with the writ and had placed a hold on the balance in her account.

Appellant next received a letter*fn2 from the prothonotary of Allegheny County dated February 9, 1977, advising her that on February 10, 1977, a judgment in favor of appellee in the amount of $680.00 plus costs would be entered in the Court of Common Pleas of Allegheny County.*fn3 On February 18, 1977, appellant filed a "Petition to Open and/or Strike Judgment and Stay of Execution". Without conducting a hearing, the lower court denied the petition. This appeal followed.*fn4

Appellant contends that the lower court had jurisdiction to strike a judgment entered in a court of common pleas upon the transcript of a justice of the peace.*fn5 In refusing to

[ 253 Pa. Super. Page 207]

    hear appellant's petition, the lower court held that the court of common pleas had no power to strike a judgment entered upon the transcript of a justice of the peace. It asserted that the sole remedy was a writ of certiorari to the common pleas court. Our disposition of the instant appeal hinges on our resolution of these opposing assertions of law.

Rule 1001(3), Pa.R.C.P.J.P.; 42 P.S. 1001(3), defines certiorari as "an examination by the court of common pleas of the record of proceedings before a justice of the peace to determine questions raised under Rule 1009 A." Rule 1009 A, Pa.R.C.P.J.P. provides, in pertinent part, that "a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction over the parties or subject matter, improper venue or such gross irregularity of procedure as to make the judgment void." The rule also places time constraints on the availability of the writ: "If lack of jurisdiction over the parties or the subject matter is claimed, the praecipe may be filed at any time after judgment. Otherwise it shall be filed within twenty (20) days from the date of the judgment." Rule 1009 B, Pa.R.C.P.J.P. In construing a virtually identical statute,*fn6 our Court held that if a petitioner filed a praecipe for a writ of certiorari within twenty days following knowledge of the entry of judgment, such a praecipe would be deemed timely filed. We stated that: "The courts have given an equitable interpretation to the limitation imposed by the Act of 1810, supra, and have held in many cases where fundamental deficiencies appear in a record that a certiorari may be issued after twenty days. But it has also been held that the defendant must, in such case, sue out a writ within a reasonable time, which means

[ 253 Pa. Super. Page 208]

    within twenty days after knowledge that the judgment has been entered . . . ." Laska v. Zelazowski, 134 Pa. Super. 311, 4 A.2d 207 (1938). We see no reason not to extend this equitable interpretation to Rule 1009 B.

In the instant case, appellant, in her motion to strike the judgment, alleges that the justice of the peace contravened Rules 322 and 514 C, Pa.R.C.P.J.P. because he failed to enter judgment within five days following the hearing. In effect, appellant contends that this defect constituted a gross irregularity of procedure which rendered the judgment void. She could have raised this contention in a praecipe for a writ of certiorari under Rule 1009 B provided that she could establish that she acted within twenty days after receiving notice of the entry of judgment. Laska v. Zelazowski, supra. Instead, appellant filed a motion to strike the judgment because she believed that the twenty day period of Rule 1009 B had elapsed. Technically, appellant erred. However, in the case at bar, appellant's motion to strike is functionally identical to a writ of certiorari. Both seek to set aside a judgment because of irregularities or errors and both require that the irregularities appear on the face of the record. Compare Rule 1009 A, Pa.R.C.P.J.P. and Cameron v. Great A. & P. Tea Co., Inc., 439 Pa. 374, 266 A.2d 715 (1970) and Taylor v. Tudor & Free, 81 Pa. Super. 306 (1923). Therefore, if appellant can establish, at an evidentiary hearing, that she filed her petition within twenty days after receiving notice of the entry of the judgment, then the lower court should entertain the petition.*fn7

Order reversed and case remanded for proceedings consistent with this opinion.


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