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

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 ...


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