Wurster v. Peters

BROSKY, Judge:

The issue before us in this appeal is whether the lower court erred in vacating a judgment of non pros which had been entered in appellant’s favor. Because we find that the judgment should not have been removed, we reverse.

Appellees commenced this action by writ of summons on March 19, 1965. They seek damages for personal injuries allegedly suffered in an automobile accident which occurred on January 26, 1964.

A complaint was filed on February 15, 1966. Various pleadings as well as interrogatories were filed between that date and February 4, 1972 when previous counsel withdrew his appearance and new counsel, Joseph Bongiovanni, III, entered his appearance.

On January 20, 1969, appellant, City of Philadelphia, had filed answers to requests for admissions made by an additional defendant. From that date until November 9, 1979, when the action was dismissed, the only apparent activity was the 1972 change of counsel. Nothing else was filed with the Prothonotary.

In August, 1980, appellees’ counsel attempted to file a Certificate of Readiness and discovered that the case had been dismissed in November, 1979, pursuant to Philadelphia Rule SSOil).¹

On March 12, 1981, new counsel, who entered his appearance for the limited purpose of filing a petition to remove the judgment of non pros, filed such a petition. An amended petition was granted and this appeal followed.

The criteria which must be met if judgment of non pros is to be removed were explained in Faulks v. Papo Bar., Inc., 280 Pa.Super. 454, 456, 421 A.2d 810, 811 (1980), as follows:

(1) Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary’s Office for a period of two successive years, the action shall be dismissed with prejudice, for failure to prosecute, under the provisions of this rule, and the docket so marked, provided that no less than sixty (60) days’ notice be given by publication once in the Legal Intelligencer.

(3) Dismissal under (1) or (2) is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal within three (3) months of the date of dismissal. (Adopted February 15, 1973, effective immediately.)

Reinstatement of a cause of action is authorized under Philadelphia Rule 1047A and its replacement rule 350(3) “for good cause shown”. Repeated decisions of this Court and the Supreme Court of Pennsylvania have established that “good cause shown” requires satisfactory proof of three positions, stated in Boyles v. Sullivan, 230 Pa.Super. 453, 455, 326 A.2d 440, 442 (1974) to be as follows:

“The criteria for opening a judgment of non pros are: (1) the petition must be timely filed; (2) the reason for the default reasonably explained or excused; and, (3) the facts constituting grounds for the cause of action be alleged.” (Citations omitted.)

The lower court found that the petition had been timely filed because neither appellees nor any of their attorneys had received notice of the dismissal. Pa.R.C.P. 236 requires that notice of entry of judgment be sent by regular mail to each party or the party’s attorney of record. Although the docket entries indicate that notice pursuant to Pa.R.C.P. 236 had been sent, the lower court found that notice had not been received based on affidavits from the attorneys.

There is apparently a question as to who was counsel of record in 1979. Mr. Bongiovanni says that he had withdrawn his appearance in 1974 at which time Louis Katz entered his appearance. The docket does not, however, reflect this change. The lower court seems to have concluded that the changes of attorney complicated receipt of notice in this case and therefore justified the filing of the petition to remove the judgment 16 months after it was entered, rather than within the 3 months prescribed by Rule 350(3).

In Stringer v. Kaytes, 286 Pa.Super. 551, 557, 558, 429 A.2d 660, 663 (1981), we held, “In those cases ... where the requisite notice has not been provided, we believe the most reasonable procedure is to decide the question of the promptness of the petition on the basis of the date when the plaintiff received actual notice, either from the prothonotary or otherwise of the dismissal of the action.” See also, Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980). Therefore, if we assume that inadequate notice was given, we might find the petition timely filed. In fact, though, we need not reach a determination as to notice, because we have concluded that even if notice was not properly given, the removal was nevertheless improper.

In Corcoran v. Fiorentino, supra, we held that although timely filed, a petition to remove judgment should be denied because “good cause” had not been shown for its removal. Specifically, we found that the plaintiffs had not reasonably explained the lack of activity in the case from the date of the last docket entry to the date of dismissal, a period of approximately 2V2 years.

In this case no explanation has been offered for the ten-year gap in non-activity prior to dismissal. As we explained in Corcoran, 277 Pa.Superior Ct. at 261, 419 A.2d at 762,

The purpose of local rules of court such as Philadelphia Rule 350 is to protect our trial courts from being burdened by stale claims. International Telephone and Telegraph Corp. v. Philadelphia Electric Co., supra [25 Pa.Super. 378] at 384, 378 A.2d [986] at 989. This purpose would be undermined if plaintiffs’ counsel’s explanation of the delay could be deemed reasonable. Consequently, because plaintiffs have failed to reasonably explain the default which occasioned the dismissal of their action, the lower court erred in reinstating this action. (Footnote deleted.)

Similarly, we conclude that the lack of explanation for the default in this case calls for reversal of the lower court’s order. See also Faulks v. Papo Ber, Inc., supra; Stawiarski v. Hall, 300 Pa.Super. 67, 445 A.2d 1302 (1982).

Order reversed and dismissal entered by the Prothonotary reinstated.

CIRILLO, J., files a dissenting opinion.

1 . The rule provides in relevant part: