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NATIONAL RECOVERY SYSTEMS v. FRANCIS X. MONAGHAN (12/16/83)

filed: December 16, 1983.

NATIONAL RECOVERY SYSTEMS, APPELLANT,
v.
FRANCIS X. MONAGHAN



No. 942 Philadelphia 1982, APPEAL FROM THE ORDER OF MARCH 16, 1982 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 170 NOV. TERM, 1979.

COUNSEL

Melvin Rubin, Ardmore, for appellant.

Stewart A. Eisenberg, Philadelphia, for appellee.

Cirillo, Johnson and Cercone, JJ.

Author: Cirillo

[ 322 Pa. Super. Page 186]

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County striking the judgment entered in favor of the appellant, National Recovery Systems. Appellant brought an assumpsit action against the appellee, Francis X. Monaghan, to collect a $7,500 loan which the latter failed and refused to repay. The case was heard on its merits by an arbitration panel. After hearing, this panel found in favor of the appellant in the amount of $7,500 plus interest. On June 24, 1981, the Report and Award of the Arbitrators expressing the findings of the panel was docketed.

Pursuant to the Pennsylvania Rules of Civil Procedure, the appellee was entitled to an appeal of the arbitration award, and to a trial de novo before the Court of Common Pleas. Pa.R.C.P. 1308, 1311(a). In order to perfect such an appeal, a defendant must comply with the appropriate requirements and file the necessary documents not later than thirty days after the entry of the award on the docket. Pa.R.C.P. 1308(a). If no appeal is taken within thirty days after the docketing of the award, the award becomes final, and the Prothonotary shall enter judgment thereon. Pa.R.C.P. 1307(c).

It is undisputed that the appellee failed to comply fully with the technical requirements for perfecting an appeal of the arbitration award within the required thirty days. Pursuant to praecipe filed by plaintiff, the Prothonotary entered judgment on the award.

[ 322 Pa. Super. Page 187]

Subsequently, on August 28, 1981, appellee filed a Petition to Open or Strike Judgment with the Court of Common Pleas. This petition challenged the propriety of the Prothonotary's entry of judgment. In his petition, appellee alleged that he made several attempts to file an appeal of the arbitration award within the thirty day period, but because of certain technical irregularities, the Prothonotary refused to accept the tendered appeal documents. The appellee requests that the Court overlook the minor imperfections,*fn1 strike or open the judgment, and allow the appeal of the award to proceed. Appellee's averments concerning efforts to file were denied by appellant in its answer to the petition. Thus, the assertion that appeal papers were ever tendered to the Prothonotary is now a fact in dispute.

The matter was assigned to Judge Guarino for disposition. After reviewing the matter, and in consideration of Rule 209 of the Pennsylvania Rules of Civil Procedure, Judge Guarino inquired whether appellee intended to take depositions to prove his allegations. On December 2, 1981, appellee's counsel advised the court that he would not take depositions and asked the court to consider the matter on Petition and Answer. On March 16, 1982 without requiring further proceedings pursuant to Rule 209, Judge Guarino ruled in favor of appellee, and ordered the judgment stricken. In his Opinion below, Judge Guarino ruled that the appeal documents were in fact tendered, and that they should be considered to have been timely filed notwithstanding the minor imperfections. Judge Guarino considered the Prothonotary's refusal to accept the papers to be an on the record defect. Because Judge Guarino opted to strike judgment, he did not address the question of whether judgment should be opened. This appeal followed.

The critical issue raised on appeal is whether Judge Guarino's striking of judgment was proper. ...


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