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RICHARD CORKELL AND MARY CORKELL v. WILLIAM GAEBEL AND VIRGINIA GAEBEL (10/08/82)

filed: October 8, 1982.

RICHARD CORKELL AND MARY CORKELL, APPELLANTS,
v.
WILLIAM GAEBEL AND VIRGINIA GAEBEL



No. 2470 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, civil Action, Law, of Chester County, at No. 94 March Term, 1980.

COUNSEL

William Emil Molchen, II, Coatesville, for appellants.

Kevin J. Ryan, West Chester, for appellees.

Hester, Cavanaugh and Cirillo, JJ.

Author: Per Curiam

[ 305 Pa. Super. Page 338]

Presently before the court is appellants' Richard and Mary Corkell (hereinafter Corkell), appeal from the order of the lower court dated September 4, 1981, wherein appellees' petition to open judgment was granted.*fn1

We affirm in part and modify in part.

The instant litigation between the parties had its genesis in January of 1980 when the appellees, William Gaebel and

[ 305 Pa. Super. Page 339]

Virginia Gaebel (hereinafter Gaebel), filed a landlord and tenant complaint before a Justice of the Peace against the appellants seeking rental arrearages and possession of the premises. In response, appellants filed a cross-claim seeking the refund of all rents previously paid, upon the legal theory of appellees' alleged breach of the implied warranty of habitability. Following hearing, the District Justice entered judgment for the Gaebels (the landlords) on the original landlord and tenant complaint and also entered judgment for the Gaebels on appellants' cross-claim. Thereafter, appellants filed a notice of appeal and praecipe to enter rule to file a complaint upon the Gaebels.

As a result of Gaebels' failure to timely file a complaint pursuant to appellants' rule, appellants entered judgment of non pros against the Gaebels on Gaebels' original landlord and tenant complaint. Not wholly satisfied with that result, however, appellants filed a complaint on their original warranty of habitability cross-claim which they denominated "in assumpsit and trespass", containing six (6) counts and 63 paragraphs with 29 pages of exhibits. (As the lower court noted, the document was forty pages long.)

Following service upon the Gaebels and their failure to timely file a responsive pleading, and following notice pursuant to Pa.R.C.P. 237.1, appellants praeciped for judgment by default on May 6, 1980.

On July 15, 1980, appellees filed a petition with supporting brief to open default judgment. On July 17, 1980, the court issued the rule upon the appellants to show cause why the default judgment should not be opened. Following the filing of appellants' answer and brief in opposition thereto, the lower court ...


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