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ANTHONY MAIORANA AND JEAN MAIORANA v. FARMERS & MERCHANTS BANK (09/30/83)

filed: September 30, 1983.

ANTHONY MAIORANA AND JEAN MAIORANA, FRANK MAIORANA AND LINDA MAIORANA AND POCONO FUTURES, INC., APPELLANTS,
v.
FARMERS & MERCHANTS BANK



NO. 307 Philadelphia, 1981, Appeal from the Order of December 18, 1980, of the Court of Common Pleas of Philadelphia County, Civil, No. 1981, March Term, 1977.

COUNSEL

Ronald Jay Smolow, Bensalem, for appellants.

Edward B. McDaid, Philadelphia, for appellee.

McEwen, Johnson and Hoffman, JJ. Johnson, J., files a dissenting statement.

Author: Mcewen

[ 319 Pa. Super. Page 340]

Appellants have taken this appeal from an order that (1) granted the petition of appellee to strike the default judgment upon which the Prothonotary had, pursuant to the praecipe of appellants, assessed damages in the amount of $225,800.00 or, (2) in the alternative, in the event that the order striking the judgment would be reversed during appellate review, granted the petition to open that default judgment. We affirm.

Appellee, in 1973 loaned, to appellant Pocono Futures, Inc., the sum of $45,000.00 which was partially secured by a mortgage on certain real estate situate both in Wayne County and Pike County, Pennsylvania, and which was further secured by the agreement of the individual appellants to serve as surety. Appellee proceeded to foreclosure and to execution upon the real estate, a proceeding that apparently had become the subject of intense litigation that was not concluded at the time of the entry of the order that is the subject of this appeal. Attorney M.E. Jones, a partner in a Wilkes-Barre law firm retained by appellee, represented appellee in the foreclosure proceeding, while Attorney H.M. Biglan of Susquehanna County represented appellants.

Attorney Biglan filed on March 16, 1977, in the Common Pleas Court of Philadelphia County, the complaint upon which the default judgment we here study was entered. That complaint is aptly described in the opinion of the hearing judge, as follows:

The Complaint, while captioned as one in assumpsit is on examination of its contents manifestly a Complaint sounding

[ 319 Pa. Super. Page 341]

    in trespass. It alleges vaguely that the unspecified 'entire interests of the plaintiffs including a second mortgage in the sum of $200,000.00' were 'placed in jeopardy', because of various fraudulent acts and misrepresentations by the Bank which is the defendant in the Philadelphia action. The Complaint accuses the defendant of malicious interference of contract, conspiracy, and other tortious conduct, including the allegation that the defendant and others' . . . tortiously and criminally removed the recorded documents from the Courthouse to conceal records from the defendants (in the Wayne County action) in order to prevent plaintiffs from learning that a default judgment was illegally entered against them.'

While the Complaint alleges various tortious acts by the defendant arising out of the Wayne County mortgage transaction and other alleged written and oral agreements, the written agreements are without explanation not annexed to the Complaint. There is absolutely nothing in the Complaint which would permit anyone to discern or compute the sum of the alleged damages. Moreover, the claim for relief at the end of the Complaint is the usual ad damnum clause used in trespass actions, "Wherefore plaintiffs hearby (sic) demand judgment in excess of $10,000.00."

Appellee filed on April 18, 1977, preliminary objections to the complaint which asserted, in summary: a demurrer, a motion to strike, a motion for a more specific pleading and a motion to dismiss by reason of the pendency of the identical claim in a prior suit, specifically, a counterclaim that had been asserted by appellants in the Wayne County proceeding. The preliminary objections did not, however, comply with the requirements of the Rules of the Common Pleas Court of Philadelphia County, as a result of which the preliminary objections were dismissed by a routine order of the motion judge entered on July 6, 1977. The order of ...


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