Tabas v. Robert Development Co.

Opinion by Spaulding, J., These two appeals arise from the same cause of action and facts. On November 20, 1970, creditor appellees Tabas filed a complaint and confession of judgment with the Prothonotary of Philadelphia County based on a judgment note signed by all five appellants. The appellees’ attorney inadvertently failed to include an affidavit of nonmilitary service, as required by the local rules of civil procedure.1 On November 23, appellants Berman filed a petition to show cause why the judgment by confession should not be stricken off because of the failure to include said affidavit or in the alternative why the judgment should not be opened. Judge Edward J. Bradley of the Court of Common Pleas of Philadelphia signed an order allowing the rule to show cause and also directing “all proceedings in the meantime to stay”. Appellees subsequently filed an affidavit of nonmilitary service on November 25, 1970, and their answer to the petition to strike off or open the judgment on December 23, 1970. Between these two filing dates, appellees obtained certified copies of the docket entries in Philadelphia County and certification of the judgment and entered them with the Prothonotary of Montgomery County, who transferred the judgment on No — 293 — vember 27, 1970. Proceedings continued in Philadelphia.2 On February 10, 1971, appellees filed a petition to allow the Affidavit of Non-Military Service filed November 25, 1970 to be allowed nunc pro tunc to November 20, 1970. The petition was answered and argument heard by Judge Ned L. Hirsh. On October 26, 1971, he entered an order granting appellees’ petition, denying appellants’ petition to strike off the judgment, and continuing the case for the taking of depositions relevant to appellants’ petition to open the judgment. Appellants Berman appeal from the granting of appellees’ petition and the denial of their petition to strike the judgment (No. 60). Subsequent to the transfer of the judgment to Montgomery County on November 27, 1970, separate proceedings on the judgment took place in the Court of Common Pleas of that county. On March 15, 1971, all five appellants filed a petition to strike the transferred judgment on the basis that the transfer was improper and violative of Judge Bradley’s order staying all proceedings. After argument, Judge Louis D. Stefan of the Court of Common Pleas of Montgomery County, refused to do so and dismissed this petition on December 9, 1971. Appellants appeal from his order (No. 330). No. 60 Appellants Berman contend that the Court of Common Pleas of Philadelphia erred in allowing the affidavit of nonmilitary service to be entered nunc pro tunc after appellees failed to file it at the time required — 294 — by the local rules of civil procedure.3 We disagree with this argument and find no abuse of discretion by the court below. Pennsylvania’s policy in this area is illustrated by Rule 126 of the Pennsylvania Rules of Civil Procedure which states that: “The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every state of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” The application of this policy to the instant factual situation is a question of first impression for the appellate courts of this Commonwealth. However, a lower court decision, which is in accord with the action of the court below here, adequately states the applicable reasoning in cases where an affidavit of nonmilitary service is not properly filed as follows: “While it is true that the Plaintiff did not comply with the above Rule and Act and that this noncompliance would ordinarily be ground for strildng off the judgment, 7 Standard Pennsylvania Practice, Chapt. 30, Sections 52 and 173, Coon v. Catten, 2 Del. Co. Reports 101, 3 Luzerne Leg. Reg. Rep. 137 (1879), nevertheless, a study of the cases decided under Section 520 of 50 U.S.C.A. App., clearly shows that only a defendant actually in the military service of the United States may take advantage of the Plaintiff’s failure to file the proper non-military affidavit since the Act and Local Rules of Court adopted to supplement it, were — 295 — designed solely to protect only persons in the military service. See Arenstein v. Jenks, Tex. Civ. App. (1944), 179 S.W. 2d 831; Poccia v. Benson, R.I. (1965) 208 A. 2d 102; Sanchez v. Sobiesk, 3 Ill. App. 2d 478, (1954), 122 N.E. 2d 602; Haller v. Walczak, 347 Mich. 292 (1956), 79 N.W. 2d 622; Seifert v. Keating, 344 Mich. 456 (1955), 73 N.W. 2d 894.” Johns Hopkins Hospital v. Croft, 82 York Legal Record 31, 32 (1968). The court therefore allowed the plaintiff to file its affidavit of nomnilitary service nunc pro tunc and dismissed the defendant’s petition to strike the judgment. The similar order of the court below in No. 60 is affirmed. No. 330 All five appellants appeal from the order of the Court of Common Pleas of Montgomery County dismissing their petition to strike the transferred judgment. The precise issue raised may be stated as follows: Does an order directing “all proceedings in the meantime to stay”, entered by the court of common pleas of a county during proceedings on a petition to open or strike a confessed judgment, require that the judgment be stricken by the court of common pleas of another county to which the judgment creditor transfers the judgment in violation of the stay order? The court below answered this question in the negative, concluding that any relief from violation of the stay order should only be granted by the same court that entered the order, not by the common pleas court of the county to which the judgment was transferred. We disagree. Rule 3002 of the Pennsylvania Rules of Civil Procedure does provide for the transfer of a judgment from — 296 — one county to another.4 However, “[i]t is well-established that orderly judicial procedure dictates that the court which first acquires jurisdiction over a matter be permitted to decide all questions relating thereto.” Binenstock Trust, 410 Pa. 425, 430, 190 A. 2d 288 (1963); cited with approval in Tallarico v. Bellotti, 414 Pa. 535, 539, 200 A. 2d 763 (1964). “It has been held time and again that the court of the county to which the judgment is transferred has no power over it except for purposes of execution, and cannot inquire into its merits. That can be done only by the court in which it was originally obtained: King v. Nimick, 34 Pa. 297; [other citations omitted]”; Selden v. Jackson, 403 Pa. 193, 195, 169 A. 2d 301 (1961). When the court in which a judgment was originally entered orders “all proceedings in the meantime to stay” while considering a petition to strike or open the judgment, the courts of other counties should not permit the transfer of the judgment until the stay order is removed.5 The stay order is in the nature of an injunction and should be honored by all other common pleas courts of concurrent jurisdiction. Wkether proceedings on the judgment or its transfer, creating additional liens against property owned by appellants in other counties than that in which it was originally filed, should be stayed pending disposition of the petition to strike or open was properly determined by the court of common pleas which had “full — 297 — control of the major controversy between the parties, the judgment being merely security for the payment of whatever may be owing by defendant [s] to plaintiffs”. Foster v. Rubenstein, 383 Pa. 236, 238, 118 A. 2d 195 (1955). A stay order in these circumstances is particularly appropriate: “the initial judgment may be found erroneous, and the ultimate judgment may be in favor of the other party. The mere entry of the judgment by confession did not conclude this litigation.” Lukacko v. Mucerino, 192 Pa. Superior Ct. 4, 7, 159 A. 2d 235 (1960). The order of the Court of Common Pleas of Montgomery County is reversed and the judgment is ordered stricken. Footnotes [1] Rule 921(a) of the Philadelphia County Rules of Civil Procedure provides that before a judgment may be confessed “an affidavit must be filed by the plaintiff setting forth facts showing that the defendant is not in the military service . . . ,” [2] Appellants Berman filed an amended petition to strike off or open the judgment and appellant Robert Development Company filed a similar petition, botb of which were answered by appellees. [3] Rule 921(a) of the Rules of Civil Procedure of Philadelphia County provides, in part, that: “Before a default judgment may he entered in any case . . . where judgment is sought upon a warrant of attorney to confess judgment . . ., an affidavit must be filed by the plaintiff setting forth facts showing that the defendant is not in the military service, . . . [4] The rule reads, in part, as follows: “(a) A judgment may be transferred to another county by filing of record a certified copy of all the docket entries in the action and a certification of the amount of the judgment. “(b) The prothonotary of the court to which a judgment is transferred shall forthwith enter it in the appropriate docket and index it against the defendant” [5] Once the stay order is removed, a transfer would of course be proper.