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DONALD PECK AND DELORES J. PECK v. CITY NEW KENSINGTON (06/22/84)

June 22, 1984

DONALD PECK AND DELORES J. PECK, APPELLANTS
v.
THE CITY OF NEW KENSINGTON, MRS. MARGARET J. BEAMER, PHILIP MERLE BEAMER, INDIVIDUALLY AND AS EXECUTORS OF LEVI BEAMER, DECEASED, KARL MEYER AND KATHERINE MEYER, HIS WIFE, AND WILLIAM I KLINGENSMITH, THEIR HEIRS, EXECUTORS, ADMINISTRATORS, DEVISEES AND ASSIGNS, GENERALLY AND ALL OTHER PERSONS CLAIMING ANY RIGHT, TITLE, INTEREST, CLAIM OR DEMAND WHATSOEVER IN A CERTAIN PIECE OR PARCEL OF LAND SITUATE IN THE THIRD WARD OF THE CITY OF NEW KENSINGTON IMMEDIATELY ADJACENT TO LAND OF DONALD J. PECK AND DELORES J. PECK; WALTER ADAMSKY AND ANNA ADAMSKY,
v.
THE CITY OF NEW KENSINGTON, MRS. MARGARET J. BEAMER, PHILIP MERLE BEAMER, INDIVIDUALLY AND AS EXECUTORS OF LEVI BEAMER, DECEASED, KARL MEYER AND KATHERINE MEYER, HIS WIFE, AND WILLIAM I KLINGENSMITH, THEIR HEIRS, EXECUTORS, ADMINISTRATORS, DEVISEES AND ASSIGNS, GENERALLY AND ALL OTHER PERSONS CLAIMING ANY RIGHT, TITLE, INTEREST, CLAIM OR DEMAND WHATSOEVER IN A CERTAIN PIECE OR PARCEL OF LAND SITUATE IN THE THIRD WARD OF THE CITY OF NEW KENSINGTON IMMEDIATELY ADJACENT TO LAND OF WALTER ADAMSKY AND ANNA ADAMSKY APPEAL OF: ANNA ADAMSKY



No. 286 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Westmoreland County, July Term, 1971, No. 347. No. 301 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Westmoreland County, July Term, 1971, No. 346.

Before Rowley, Johnson and Popovich, JJ.

Per Curiam:

Order affirmed.

IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW

WALTER ADAMSKY and ANNA ADAMSKY vs. THE CITY OF NEW KENSINGTON, MRS. MARGARET J. BEAMER, PHILIP MERLE BEAMER, individually and as Executors of LEVI BEAMER, Deceased, KARL MEYER and KATHERINE MEYER, His wife, and WILLIAM I. KLINGENSMITH, their heirs, executors, administrators, devisees and assigns, generally and all other persons claiming any right title, interest, claim or demand whatsoever in a certain piece or parcel of land situate in the Third Ward of the City of New Kensington immediately adjacent to land of Walter Adamsky and Anna Adamsky

DONALD PECK and DOLORES J. RECK vs. THE CITY OF NEW KENSINGTON, MRS. MARGARET J. BEAMER, PHILIP MERLE BEAMER, individually and as Executors of LEVI BEAMER, Deceased, KARL MEYER and KATHERINE MEYER, his wife, and WILLIAM I. KLINGENSMITH, their heirs executors, administrators, devisees and assigns, generally and all other persons claiming any right, title, interest, claim or demand whatsoever in a certain piece or parcel of land situate in the Third Ward of the City of New Kensington immediately adjacent to land of Donald Peck and Dolores J. Peck

No. 346 July Term, 1971

No. 347 July Term, 1971

BY THE COURT:

The plaintiffs, Walter and Anna Adamsky and Donald and Dolores Peck, are owners of separate lots in the City of New Kensington. Between those separate properties lies a parcel of land thirty (30) feet wide which is the subject of the current litigation. On August 4, 1971, each plaintiff filed a complaint to quiet title, each claiming fifteen (15) feet of the subject thirty (30) foot wide parcel, asserting title by adverse possession. The center line of the subject parcel is described in both complaints as the "center line of a certain unnamed and unopened and unmaintained street as said street is shown on the W. I. Klingensmith Plan of Lots as recorded . . . in Plan Book No. 4, page 353."

The named defendants are the same in both cases, i.e., the City of New Kensington and the various individuals named in the captions above. The complaints were accompanied by an affidavit signed by the plaintiffs asserting that despite their efforts, the whereabouts of the defendants were unknown, causing the court to enter an order granting the plaintiffs leave to serve the defendants by publication. On September 3rd, 1971, the defendant, City of New Kensington, filed an answer and new matter seeking to have the plaintiffs' action dismissed. On that same date, Carrol F. Mentzell and Jean Mentzell, through counsel, filed an answer and new matter seeking judgment in their favor.It is not disputed that the answer and new matter filed by the Mentzells was not served on plaintiffs' counsel in accordance with the requirements of RCP 1027. Approximately a year and a half later on July 18th, 1973, plaintiffs' counsel represented to the court that the City of New Kensington had withdrawn its contest and that no defendant had filed an answer. The plaintiffs' affidavit which asserted that no answer had been filed was, of course, incorrect in that the answer and new matter of the Mentzells had been on record for approximately a year and a half. Counsel for the plaintiffs protest that neither he nor the plaintiffs were aware of the Mentzells' answer as filed since they failed to comply with Rule 1027 and effectuate service. Pursuant to the affidavit before it, the court signed an order on July 18th, 1973, barring any defendants from asserting any interest in the ground unless an appearance was entered within thirty (30) days from the date of that order. Thereafter, by praecipe filed by plaintiffs' counsel with the prothonotary on September 10th, 1973, final judgment was entered in the plaintiffs' favor.

All was quiet until October 26th, 1981. On that date, Carrol F. Mentzell, et al. filed a petition to strike and/or open judgment asserting therein that Carrol F. Mentzell, et al. had filed an answer and new matter contrary to the representations made by the plaintiffs in their affidavit to the court. Subsequently, the plaintiffs filed preliminary objections causing Mentzells to file an amended petition to strike and/or open judgment and for quiet title, declaratory relief and non pros. At oral argument on February 19th, 1982, counsel stipulated that the Mentzell pleading would be treated as a motion to open and/or strike judgment.

The plaintiffs assert initially that the failure of the Mentzells to adhere to Rule 1027 is fatal; and, therefore, their taking a judgment, despite ...


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