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S. MARSHALL GORSON ET AL. v. LACKAWANNA COUNTY BOARD COMMISSIONERS ET AL. COLLECTOR TAXES (09/13/83)

decided: September 13, 1983.

S. MARSHALL GORSON ET AL.
v.
LACKAWANNA COUNTY BOARD OF COMMISSIONERS ET AL. COLLECTOR OF TAXES, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of S. Marshall Gorson et al., trading as Viewmont Village Joint Venture v. Lackawanna County Board of Commissioners and Collector of Taxes, and School District of City of Scranton and City of Scranton, No. 81 Civil 984.

COUNSEL

William J. Hall, with him Edmund J. Scacchitti, City Solicitor, for appellant.

G. Craig Lord, with him Andrew D. Bershad, Blank, Rome, Comisky & McCauley, and Howard K. Goldstein, Rosenn, Jenkins & Greenwald, for appellees.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 77 Pa. Commw. Page 142]

This is the appeal of a judgment debtor from an order of the Court of Common Pleas of Lackawanna County refusing to open a default judgment. The default judgment in the amount of $46,949 was taken against Collector of Taxes, one of four defendants named in a lawsuit, for failure of the Collector of Taxes to appear or to answer the complaint in assumpsit and trespass of the judgment creditors, S. Marshall Gorson et al., trading as Viewmont Village Joint Venture.

The plaintiffs below, now judgment creditors, are individuals, who were members of a joint venture in real estate. The named defendants, in addition to Collector of Taxes, were the Lackawanna County Board of Commissioners, the School District of the City of Scranton and the City of Scranton.

The plaintiffs filed a summons on February 23, 1981, and it was returned by the sheriff as served personally on all parties defendant on March 2, 1981. The plaintiffs did not file their complaint until July 22, 1981, and the complaint was then served on the defendants by registered mail. The School District and the County promptly filed responsive pleadings. On August 25, 1981, plaintiffs' counsel sent notices to the Collector of Taxes and to the City of Scranton of the plaintiffs' intention to take a default judgment against them within ten days. An answer for the City of Scranton was prepared and filed by the city solicitor.

[ 77 Pa. Commw. Page 143]

None was filed for the Collector of Taxes. On September 10, 1981, counsel for the plaintiffs sent a notice to the Collector of Taxes that the plaintiffs intended to take default judgment within fifteen days. No appearance or answer was filed by or for the Collector of Taxes. The plaintiffs took default judgment against the Collector of Taxes on October 10, 1981.

The Scranton city solicitor prepared and filed a petition on behalf of the Collector of Taxes on October 23, 1981 for the opening of the default judgment, upon which a rule was entered. In this pleading, some of the defenses of the collector to the merits of the suit are described; and the failure of the collector to appear or to file an answer is explained and excused as due to a state of confusion on the part of the Collector of Taxes and of the city solicitor as to whether the tax collector's defense would be handled by the city solicitor or by other counsel. One David J. Wenzel filed an affidavit in support of the petition to open in which he identified himself as the Collector of Taxes and deposed: that it was his understanding that the city solicitor would defend him in the suit; that the office of the Collector of Taxes used the services of the several solicitors of the county, the city and the school district from time to time as occasion warranted; and that there was a misunderstanding between the Collector of Taxes and the city solicitor as to whether or not the responsive pleadings to the suit filed by the solicitor in behalf of the City of Scranton did not also constitute a responsive pleading for the Collector of Taxes.

The city solicitor testified on deposition that the Collector of Taxes collects the bills for taxes of the county, the school district and the city and that these taxing ...


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