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LEA BRODSKY v. PHILADELPHIA ATHLETIC CLUB (05/02/80)

filed: May 2, 1980.

LEA BRODSKY, ADMINISTRATRIX OF THE ESTATE OF MICHAEL BRODSKY, DECEASED,
v.
PHILADELPHIA ATHLETIC CLUB, INC., THE HAHNEMANN MEDICAL COLLEGE AND HOSPITAL OF PHILADELPHIA AND SAMUEL RAPPAPORT. APPEAL OF PHILADELPHIA ATHLETIC CLUB, INC. AND SAMUEL RAPPAPORT



No. 2892 October Term, 1978, No. 478 October Term, 1979, No. 988 October Term, 1979, No. 1160 October Term, 1979, Appeals from Orders entered by the Court of Common Pleas of Philadelphia County at No. 1048 November Term, 1975.

COUNSEL

Leon W. Silverman, Philadelphia, for appellants.

Robert A. Rosin, Philadelphia, for appellee.

Price, Van der Voort and Wieand, JJ.*fn* Judge Donald E. Wieand participated in the consideration of this appeal by special designation after his term of office had expired.

Author: Wieand

[ 277 Pa. Super. Page 551]

This equity action spawned four appeals, all of which were consolidated for argument and are now before this Court for decision. The history discloses that the chancellor, following a full hearing, entered a decree nisi by which the Philadelphia Athletic Club, Inc. and Samuel Rappaport were directed to pay commissions to Lea Brodsky, Administratrix of the Estate of Michael Brodsky, deceased, calculated at the rate of 5% on past rentals paid for the Philadelphia Athletic Club building at Broad and Wood Streets in Philadelphia. Philadelphia Athletic Club, Inc. was also ordered to pay commissions of 5% on future rentals received for the premises from the tenant, Hahnemann Medical College and Hospital, so long as a lessor-lessee relationship continued to exist between the Philadelphia A.C. and Hahnemann. The decree nisi, accompanied by the chancellor's adjudication, was filed on October 13, 1978. When exceptions had not been filed by October 24, 1978, Lea Brodsky, Administratrix, filed a praecipe to have the decree nisi entered as the final decree. An appeal was thereafter filed by Rappaport and the Philadelphia A.C. to the Superior Court, but this appeal was discontinued.*fn1 Instead, on October 27, 1978, an application for leave to file exceptions to the decree nisi nunc pro tunc was filed with the chancellor. This was denied without hearing and without opinion on November 22, 1978. An appeal was filed from this order by Rappaport and the Philadelphia Athletic Club, Inc. and is properly before this Court.

On February 27, 1979, after hearing, the trial court found appellants in contempt of court and imposed a fine of $50 per day for each day after March 15, 1979 on which appellants failed to comply with the final decree. An appeal to this Court was filed from the contempt order on March 6,

[ 277 Pa. Super. Page 5521979]

, and a supersedeas was entered. However, only the order of February 27, 1979 was stayed.

On April 18, 1979, appellee filed another petition seeking to have appellants held in contempt of court. A hearing thereon was held on May 1, 1979, when it was shown that although rentals were continuing to be paid to appellants, they refused to pay therefrom the commissions ordered by the court. At that time, the chancellor threatened to send Rappaport, the individual appellant, to jail and fine him $50 per day if the matter was not resolved in ten days. A formal order, however, was not entered. Nevertheless, appellants filed another appeal.*fn2 A petition to stay further attempts to enforce the decree of October 13, 1978 was filed in the Superior Court but denied per curiam on May 16, 1979.*fn3

Thereafter, on May 29, 1979, the court below entered an order which found appellants in contempt, entered judgment against appellants for rent due in the total sum of $108,311.40 and directed the Prothonotary to issue an assignment of rents from the tenant to appellee. The court also directed appellants to pay the sum of $5,000 to the County of Philadelphia as costs of the contempt proceedings. A fourth appeal was taken by appellants from this order.

We consider first the order of November 22, 1978, by which the chancellor refused appellants' petition for leave to file exceptions nunc pro tunc. Pa.R.C.P. No. 1518 provides for the filing of exceptions to a chancellor's adjudication "within ten (10) days after notice of the filing of the adjudication." The period for filing exceptions commences when the Prothonotary complies with Pa.R.C.P. ...


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