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211 Pa. Super. 126

Hyman v. Borock

Superior Court of Pennsylvania

Decided November 16, 1967

Superior Court of Pennsylvania · decided 1967-11-16

Key passage — most relied on by later courts

“We symphathize with the desire of the distinguished President Judge of the court below to effect disposition of these cases without further delay. However, the parties did not agree to such disposition and counsel promptly objected thereto. New trials must therefore be granted. Cf. Cowsill v. Vipond Construction Co., 250 Pa. 32 , 95 A. 317 . We are clearly of the opinion that, in the absence of consent thereto, the substitution of another judge for the trial judge may not be approved where the testimony has been heard without a jury and the trial judge has not yet rendered a decision on the factual issues.”

quoted by 1 later decision, including 295 Pa. Super. 122 - Labyoda v. Stine

Relies on 113 Pa. Super. 439 - Com. of Pa. v. Claney · Cowsill v. Vipond Construction Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1967-11-16

How this case has been cited

Cited by 14 later decisions — most recently January 2019

14 state decisions

60196719701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 Opinion by

Wright, J.,

¶2 We are here concerned with an assumpsit action instituted on June 12, 1964, by Martin Hyman, trading as Martin Hyman Realty Company, against Joseph Borock and Ruth Borock, his wife, wherein the plaintiff sought to recover a commission of $1050.00 on the sale by defendants to Stephen J. Green and Zelda Green of premises at 661 Artwood Drive in the City of Philadelphia. On June 22, 1964, an action was instituted by Bernard Kievan to recover a commission on the same sale. The two actions were consolidated for *128 trial and were ultimately tried, February 9, 1966, before Judge Theodore O. Spaulding sitting without a jury. Without deciding the matter, Judge Spaulding resigned his commission as a Judge of the County Court and became a member of the Superior Court.

¶3 The ensuing procedural history in the court below is thus stated in the opinion of President Judge Bonnelly: “The record was turned over to the writer as President Judge of the County Court. After a careful study of the entire record and consultation with Judge Spaulding, an adjudication was filed August 3, 1966 and a finding was entered in favor of the plaintiff, Kievan, against the defendants in the sum of $1050, with interest, and in the claim of Hyman a finding was entered for the defendants. Exceptions were filed and were dismissed by the Court en banc and judgment was entered on the findings”. Hyman has appealed at No. 555 October Term 1967. The Borocks have filed a companion appeal at No. 576 October Term 1967.

¶4 We sympathize with the desire of the distinguished President Judge of the court below to effect disposition of these cases without further delay. However, the parties did not agree to such disposition and counsel promptly objected thereto. New trials must therefore be granted. Cf. Cowsill v. Vipond Construction Co., 250 Pa. 32, 95 A. 317. We are clearly of the opinion that, in the absence of consent thereto, the substitution of another judge for the trial judge may not be approved where the testimony has been heard without a jury and the trial judge has not yet rendered a decision on the factual issues. “The facts of a case only partially appear in the transcript of the testimony”: Commonwealth v. Claney, 113 Pa. Superior Ct. 439, 173 A. 840.

¶5 Judgment reversed with a venire.

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