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LOOMIS LAKE ASSOCIATION BY HAMILTON S. HUGHES v. FLOYD C. SMITH (10/07/87)

filed: October 7, 1987.

LOOMIS LAKE ASSOCIATION BY HAMILTON S. HUGHES, TRUSTEE AD LITEM
v.
FLOYD C. SMITH, JR., AND REVA SMITH, HIS WIFE, APPELLANTS (TWO CASES)



Appeal from the Order of August 8, 19875 in the Court of Common Pleas of Susquehanna County, Civil Division, No. 264 August Term, 1976. Appeal from the Judgment of August 13, 1985 in the Court of Common Pleas, of Susquehanna County, Civil Division, No. 1980-637 C.P.

COUNSEL

Peter G. Loftus, Scranton, for appellants.

Laurence M. Kelly, District Attorney, Montrose, for appellee.

Cirillo, President Judge, and Rowley and Wieand, JJ. Wieand, J., concurs in the result.

Author: Rowley

[ 366 Pa. Super. Page 614]

OPINION OF THE COURT

These are consolidated appeals from an order entered in a trespass action and a summary judgment entered in an ejectment action, both of which involve the same parties and

[ 366 Pa. Super. Page 615]

    the same parcel of land. Appellants, Floyd C. and Reva Smith (Smiths), were defendants in an action in trespass brought by plaintiff-appellee, Loomis Lake Association (Association), on July 9, 1976. The Association alleged that the Smiths wrongfully trespassed on property owned by the Association and caused damage thereon by removing trees and erecting a fence. The case went to trial and on September 14, 1977, the jury found for the Association awarding it nominal damages of $2.00. The Smiths filed a timely motion for a new trial. On September 28, 1979, the trial court filed an order denying the Smiths' motion for new trial because they had failed to pursue it. Judgment on the verdict was entered by the Association on December 17, 1984. No appeal was ever taken from this judgment.

After the trial court's denial of the Smiths' motion for a new trial, but prior to the entry of judgment in the trespass action, the Association, in 1980, instituted an action in ejectment to oust the Smiths from the property at issue in the trespass action. The Smiths counterclaimed raising a claim of adverse possession. The Association moved for summary judgment on the issue of adverse possession based on the doctrine of res judicata.

On January 2, 1985, in an attempt to invalidate the claim of res judicata in the ejectment action, the Smiths filed a motion to open or, in the alternative, to strike the judgment entered in the trespass action erroneously alleging that the trial court had not ruled on their post-trial motion. The Smiths also claimed that they were prejudiced by the Association's late filing of the praecipe for judgment in the trespass action. On August 8, 1985, the court, after argument on the petition to open or strike, entered the following order:

AND NOW TO WIT, this 8th day of August, 1985, the Motion for New Trial in this matter, having been filed on the 16th of September 1977, being without merit, the same are [sic] hereby dismissed and the court affirms the judgment heretofore entered by the Prothonotary on the Praecipe of the plaintiff.

[ 366 Pa. Super. Page 616]

On August 13, 1985 the court entered the following order in the trespass action:

NOW TO WIT, this 13th day of August, 1985, this matter has lain dormant since the verdict of the jury of the 14th of September, 1977. That verdict was in favor of the plaintiff, Loomis Lake Association. Motions were filed for a new trial and never presented to the court. Such motions were usualboilerplate, (sic), raising no issues relative to the verdict of the jury. The Motions for a New Trial is (sic), therefore, dismissed nunc pro tunc. The motion to Open or in the Alternative to Strike Judgment, filed by the defendant on the 17th of Seprember, (sic) 1984, is therefore, dismissed.

The Smiths, on September 5, 1985, appealed from the August 8, 1985 order entered in the trespass action. That appeal is ...


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