Department of Public Assistance v. Scalzo

Lackawanna County Court of Common Pleas

Department of Public Assistance v. Scalzo

45 Pa. D. & C. 89, 1942 Pa. Dist. & Cnty. Dec. LEXIS 139

CourtPennsylvania Court of Common Pleas, Lackawanna County

DecidedApril 15, 1942

Docketno. 2873

StatusPublished

This text of 45 Pa. D. & C. 89 (Department of Public Assistance v. Scalzo) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Department of Public Assistance v. Scalzo, 45 Pa. D. & C. 89, 1942 Pa. Dist. & Cnty. Dec. LEXIS 139 (Pa. Super. Ct. 1942).

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Opinion

Eagen, J.,

On August 28, 1940, judgment was entered in the prothonotary’s office in the above-entitled case upon a transcript from the office of a justice of the peace. On March 2,1942, a petition was presented asking the court to strike the judgment from the record on the ground that the judgment was void for many reasons appearing upon the face of the transcript.

An examination of the record of the proceedings readily discloses that the judgment is void. As counsel for plaintiff admitted at the argument “it [the transcript] is a sorry mess.” The transcript is fatal in many respects. The first glaring defect is that the summons in this action in assumpsit was returnable 13 days after its issuance. This is in violation of the Act of March 20, 1810, P. L. 208, 42 PS §422. The act provides that in such a case the summons must be made returnable no more than eight days after it is issued. Another defect in the transcript is the return of service. This fails to disclose the place or location of the service of the writ. There are other questionable things about the record which need not be discussed here. Either of those pointed out above is fatal.

Iri the answer filed to defendant’s petition plaintiff requests the right to file an amended transcript of the docket of the justice of the peace. It is alleged that the transcript or record of the case filed was not a true and correct one of the proceedings before the magistrate. This request is denied.

“. . . if a judgment is entered in the Common Pleas Court, on a justice’s transcript void on its face for want of jurisdiction, it will be stricken off on motion, and the court has no authority to permit the transcript [91]*91to be amended”: 5 Standard Pa..Practice 561, §793. This is emphatically so where the rights of third persons would be prejudiced: sec. 792.

Now, therefore, April 15,1942, the rule to strike off judgment is made absolute and it is so ordered.

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Eagen, J.,

On August 28, 1940, judgment was entered in the prothonotary’s office in the above-entitled case upon a transcript from the office of a justice of the peace. On March 2,1942, a petition was presented asking the court to strike the judgment from the record on the ground that the judgment was void for many reasons appearing upon the face of the transcript.

An examination of the record of the proceedings readily discloses that the judgment is void. As counsel for plaintiff admitted at the argument “it [the transcript] is a sorry mess.” The transcript is fatal in many respects. The first glaring defect is that the summons in this action in assumpsit was returnable 13 days after its issuance. This is in violation of the Act of March 20, 1810, P. L. 208, 42 PS §422. The act provides that in such a case the summons must be made returnable no more than eight days after it is issued. Another defect in the transcript is the return of service. This fails to disclose the place or location of the service of the writ. There are other questionable things about the record which need not be discussed here. Either of those pointed out above is fatal.

Iri the answer filed to defendant’s petition plaintiff requests the right to file an amended transcript of the docket of the justice of the peace. It is alleged that the transcript or record of the case filed was not a true and correct one of the proceedings before the magistrate. This request is denied.

“. . . if a judgment is entered in the Common Pleas Court, on a justice’s transcript void on its face for want of jurisdiction, it will be stricken off on motion, and the court has no authority to permit the transcript [91]*91to be amended”: 5 Standard Pa..Practice 561, §793. This is emphatically so where the rights of third persons would be prejudiced: sec. 792.

Now, therefore, April 15,1942, the rule to strike off judgment is made absolute and it is so ordered.

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Bluebook (online)

45 Pa. D. & C. 89, 1942 Pa. Dist. & Cnty. Dec. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-public-assistance-v-scalzo-pactcompllackaw-1942.