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KENNEDY & CARTER CONSTRUCTION COMPANY v. GERALD L. BARKLEY AND GRACE BARKLEY (11/25/83)

filed: November 25, 1983.

KENNEDY & CARTER CONSTRUCTION COMPANY, INC., APPELLANT,
v.
GERALD L. BARKLEY AND GRACE BARKLEY, HIS WIFE



No. 451 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas of Fayette County, Civil Nos. 469 of 1981, D.S.B., and 90 of 1981, E.D.

COUNSEL

Michael L. Fitzpatrick, Washington, for appellant.

Simon B. John, Uniontown, for appellees.

Cavanaugh, Rowley and Cirillo, JJ.

Author: Per Curiam

[ 321 Pa. Super. Page 349]

This is an appeal from an order of the trial court, sitting en banc, dismissing exceptions to an order opening a judgment. Because it was taken out of time, this appeal must be quashed.

On January 13, 1981, Kennedy & Carter Construction Company, Inc. (hereinafter "appellant"), filed a complaint in assumpsit before District Justice Anthony Shuli alleging

[ 321 Pa. Super. Page 350]

    damages in the amount of $2,000.00 stemming from the allegedly wrongful cancellation of a construction contract by Gerald L. and Grace Barkley (hereinafter "appellees"). On February 2, 1981, after a hearing which all parties attended, together with counsel, the District Justice entered a decision in favor of appellant in the amount of $2,000.00 plus $27.00 in record costs. Appellees admit that they filed no appeal from the decision of the District Justice.

On March 19, 1981, the judgment was filed of record in the Prothonotary's Office of Fayette County. On May 12, 1981, a writ of execution was issued and appellee's home was listed to be sold at a sheriff's sale scheduled for July 16, 1981. On June 2, 1981, after receiving notice of the execution, appellees consulted a second attorney to see what could be done. For the next month, appellees and their new attorney attempted to settle the dispute with appellant but were not successful.

On July 3, 1981, appellees filed a petition to stay execution and to strike the judgment. The same day, the trial judge signed an order staying the execution, striking the judgment and setting the matter for a hearing before "an arbitration panel" at 9:30 a.m. on September 21, 1981. Appellant's answer to this petition was filed twenty-two minutes prior to the scheduled commencement of the hearing on September 21, 1981. Inter alia, appellant alleged that appellees had failed "to raise any grounds for which a petition to strike can be granted." No notes of testimony or other record of the September 21 hearing have been transmitted with the record on appeal and no order of court appears of record disposing of the petition and answer. However, the parties and the court later agreed that the court dismissed the petition to strike. (N.T. 11/13/83 at 2-3.)

On September 25, 1981, appellees filed a "praecipe for a writ of certiorari." On October 6, 1981, appellees filed a combined petition to open judgment and motion for permission to appeal nunc pro tunc. That same day, the court issued ...


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