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FLAGSHIP FIRST NATIONAL BANK MIAMI BEACH v. LEO I. BLOOM AND SHIRLEY R. BLOOM (07/02/81)

filed: July 2, 1981.

FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, EXECUTOR OF THE ESTATE OF FRED COHEN, DECEASED,
v.
LEO I. BLOOM AND SHIRLEY R. BLOOM, HIS WIFE, APPELLANTS. FRED COHEN V. LEO I. BLOOM AND SHIRLEY R. BLOOM, HIS WIFE, APPELLANTS



Appeal from the Judgments of the Court of Common Pleas, Civil Action-Law, of Berks County, at Nos. 131 June Term, 1977 and at No. 297 December Term, 1979, J.D. Appeal from the Judgments of the Court of Common Pleas, Civil Action-Law, of Berks County, at Nos. 164 August Term, 1972, A.D.. No. 1304 June Term, 1972, J.D.

COUNSEL

Brett A. Huckabee, Reading, for appellants.

Jay N. Abramovitch, Reading, for Flagship First Nat. Bank and Fred Cohen, appellees.

Wickersham, Hoffman and Van der Voort, JJ. Hoffman, J., concurs in the result.

Author: Van Der Voort

[ 288 Pa. Super. Page 348]

The central issue is this case is whether the failure of a debtor to interpose the defense of accord and satisfaction to

[ 288 Pa. Super. Page 349]

    a revival judgment taken by default precludes the debtor from pleading such defense in a later action of Assumpsit on the debt. The lower Court held that the revival judgment became res judicata of the issue. We reverse for the reasons hereinafter stated.

A judgment in favor of Fred Cohen, now deceased, was entered against Leo I. Bloom and Shirley Bloom, his wife, appellants herein, on December 11, 1967 in the Prothonotary's Office of Berks County on a judgment note dated October 8, 1965 executed by the appellants in favor of Cohen in the amount of $35,000. On the next day, December 12, 1967, Cohen assigned the judgment to Leo Bloom "in consideration of the sum of $35,000 to me paid by Leo Bloom". The assignment was drafted by Cohen's attorney, acknowledged before a Notary Public in the attorney's office and duly delivered by Cohen's attorney to counsel for Bloom who delivered the document to Bloom. The assignment was under seal.

A Praecipe for a Writ of Revival (adverse) of the judgment was filed by Cohen on June 27, 1972, and the Writ was issued by the Prothonotary on the same date. It was served on the appellants on July 15, 1972. On August 10, 1972, a Judgment of Revival was entered by default in favor of Cohen and against appellants in the amount of $35,000 with interest from October 8, 1967.

Cohen died on August 8, 1975 and Flagship First National Bank of Miami Beach, appellee herein, was named as Executor of his estate.

The bank, as Cohen's executor, has filed suit in assumpsit on the judgment note of 1965 instead of issuing execution on the revived judgment of 1972, as it might have done. Appellants defended on the ground that the assignment of the 1967 judgment and acknowledgment of payment of the debt constituted a full accord and satisfaction of the obligation. The assignment was not recorded and the original document could not be ...


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