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FRANK GROSSMAN C/O CEDARBROOK REALTY v. TINA WEISER MITCHELL AND CHRISTINE PIERSON. APPEAL TINA WEISER MITCHELL (03/09/81)

submitted: March 9, 1981.

FRANK GROSSMAN C/O CEDARBROOK REALTY
v.
TINA WEISER MITCHELL AND CHRISTINE PIERSON. APPEAL OF TINA WEISER MITCHELL



No. 1910 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Division, Law, Philadelphia County, October Term, 1979, No. 2669X.

COUNSEL

Irv Ackelsberg, Philadelphia, for appellant.

Robert R. Guzzardi, Philadelphia, for appellees.

Hester, DiSalle and Montgomery, JJ.

Author: Montgomery

[ 291 Pa. Super. Page 386]

Plaintiff-Appellee Frank Grossman, c/o Cedarbrook Realty, initiated an action in the Municipal Court of Philadelphia to recover possession of certain real estate in the city of Philadelphia, and for back rent allegedly due under a lease of same entered into between him and Robert and Christine Pierson. Grossman secured a judgment for possession of the premises but his claim for back rent was denied due to the uninhabitable condition of the property, and judgment was entered for the tenants on this claim. He appealed to the

[ 291 Pa. Super. Page 387]

Court of Common Pleas from the judgment entered for the tenants. He thereafter filed a notice of appeal, and affidavit of non-delay, and a complaint. However, notice of the appeal was not sent to the tenants within the time prescribed by Philadelphia Civil Rule 300 which requires service of notice of such an appeal within forty-eight (48) hours after it is filed. Grossman did not mail such notice to the tenants until several days beyond the allotted time. Furthermore, the receipts attached to the mailings were returned unsigned, and no further effort was made to accomplish service. Notably, the notice sent to the tenants was addressed to them at the leased premises, which they had been ordered to vacate.

Nevertheless, on December 18, 1979, Grossman entered a default judgment against the tenants for $1,316.00, and, thereafter, caused a writ of attachment execution to be issued against a savings bank account in the name of Robert Pierson in trust for Tina Weiser Mitchell.

Robert Pierson*fn1 filed on March 18, 1980, a petition to strike the default judgment and to quash the appeal because of Grossman's failure to serve notice of the appeal according to the requirements of Rule 300. The lower court denied the petition, from which action Robert Pierson took this appeal. After doing so, he died on August 20, 1980, and Tina Weiser Mitchell, the beneficiary of the bank account, was substituted for him as party-appellant.

Rule 300 (Star Rule 28) is specially adapted to landlord and tenant cases in the Philadelphia Municipal Court, and differs from Rule 310 which covers appeals from "other civil claims" in that court.

The pertinent parts of Rule 300 read:

"Municipal Court -- Landlord ...


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