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DANIEL B. MURPHY v. GEORGE BRONG AND MARTHA BRONG (02/01/83)

submitted: February 1, 1983.

DANIEL B. MURPHY
v.
GEORGE BRONG AND MARTHA BRONG, H/W AND DENNIS N. SAKELSON, APPELLANT. APPEAL OF DENNIS N. SAKELSON



No. 2592 Philadelphia, 1981, Appeal from the Judgment Nunc Pro Tunc of the Court of Common Pleas of Montgomery County, Civil, No. 78-00862

COUNSEL

Raymond B. Reinl, Willow Grove, for appellant.

John G. Younglove, Willow Grove, for Murphy, appellee.

Frederick C. Horn, Lansdale, for Brong, et al., appellees.

Wieand, McEwen and Montgomery, JJ. Wieand, J., filed dissenting statement.

Author: Per Curiam

[ 321 Pa. Super. Page 341]

Appellant, Dennis N. Sakelson, seeks review of two orders of the Court of Common Pleas of Montgomery County entered on September 2, 1981, dismissing both his "Petition for Waiver of Montgomery County Rule 252 and Rule 301(d)" and his exceptions to a verdict entered by the court on June 5, 1980. For the reasons hereinafter expressed, we are constrained to quash this appeal.

Daniel B. Murphy filed a complaint in assumpsit on January 18, 1978, against Mr. and Mrs. George Brong seeking to recover broker's commissions allegedly due on

[ 321 Pa. Super. Page 342]

    the sale of a business by the Brongs. The Brongs joined Dennis N. Sakelson, the appellant herein, as additional defendant, alleging that appellant was solely liable to the plaintiff. Trial was held before the distinguished Judge William W. Vogel sitting without a jury and a verdict was rendered in favor of the plaintiff and against the defendants, George and Martha Brong, and the additional defendant, Dennis N. Sakelson in the amount of $11,200.00. After exceptions had been filed by the defendants and by the additional defendant, Judge Vogel, in a supplemental order entered on June 5, 1980, rendered a verdict in favor of the defendants, Mr. and Mrs. Brong and against the additional defendant Dennis N. Sakelson, in the amount of $11,200.00.

On June 16, 1980, appellant filed exceptions to the supplemental order of Judge Vogel. Thereafter, while the exceptions were still outstanding, counsel for the Brongs first advised all parties of his intent to enter judgment on the verdict and subsequently proceeded to enter judgment on August 19, 1980 in favor of the plaintiffs and against the defendants and the additional defendant. Notice of the entry of judgment was sent to all parties pursuant to Pa.R.C.P. 236. It was not until six months later, on February 23, 1981, that appellant filed a motion to strike the judgment, averring that it was improperly entered as his exceptions to the verdict were still outstanding. An answer to the motion to strike was filed by plaintiff on April 10, 1981. Prior to any disposition by the court of the motion to strike, appellant filed a petition on July 8, 1981, captioned "Petition for Waiver of Montgomery County Rule 252 and Rule 301(d) of the Rules of Civil Procedure" seeking to be excused from compliance with the local rules based upon financial inability. Both the plaintiff and the original defendants denied the averment by appellant of financial inability and appellant filed no depositions or affidavits in support of his petition. On September 2, 1981, Judge Vogel dismissed the petition of appellant as well as his outstanding exceptions to the supplemental order. On September

[ 321 Pa. Super. Page 34329]

, 1981, appellant filed a notice of appeal from the order entered by Judge Vogel ...


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