Appeal, No. 174, Jan. t., 1949, from order of Court of Common Pleas of Northumberland County, Feb. T., 1946, No. 90, in case of Elizabeth Glass v. The Farmers National Bank of Watsontown, Trustee, et al. Order affirmed.
J. Julius Levy, for appellants.
S. Dale Furst, with him Carl Rice, Furst, McCormick, Muir & Lynn and Harry Alvan Baird, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE JONES
The appellant contends that a court of common pleas lacks power to strike off a judgment of non pros. entered in pursuance of Rule 1037(a) of the Rules of Civil Procedure (354 Pa. XLV) or, in the alternative, if the courts have such power, that the exercise thereof in the instant case constituted an abuse of discretion. The following are the circumstances giving rise to these contentions.
The plaintiff instituted her action in trespass by issuing a summons, but without filing a complaint. The defendant bank was duly served and caused an appearance to be entered for it. Seventeen months after the action had been instituted, the plaintiff filed a bill in equity for discovery in aid of the preparation of her complaint in the trespass action. Thirteen months later, the bill in equity was dismissed by decree of court. The defendant then ruled the plaintiff, pursuant to the provisions of Rule 1037(a) of the Pa. R.C.P., to file a complaint in the trespass action within twenty days after service of notice of the rule. Subsequent to such
service, the court, by agreement of respective counsel for the parties, entered an order fixing the time for the filing of the complaint on a future day certain. That date having passed without a complaint yet being filed, the defendant, two days thereafter, filed a praecipe for judgment of non pros. and the prothonotary thereupon entered such judgment of record. Several hours later but on the same day, the plaintiff filed her complaint. Five days thereafter, the defendant moved to strike off the complaint; on that motion a rule to show cause was granted. The next day, the plaintiff petitioned the court to strike off the judgment of non pros.; and a rule to show cause was granted on that petition. Answers to the motion and petition having been made by the respective respondents, the court entered upon a hearing in the matter and, in due course, made both rules absolute, i.e., struck off the judgment and the complaint, but also granted the plaintiff a period of ten days from the date of the order within which to file her complaint. From that order the defendant took this appeal.
Appellant's first contention is manifestly untenable. Rule 1037(a) R.C.P. was not intended to, nor does it, impair or in any way impinge upon the power of a court over its judgments. Such power is the same since the rule was promulgated as it was before it was adopted. What the rule was designed to do, and all that it did, was to prescribe definitively the procedure to be followed in order to compel a plaintiff to file a complaint or suffer judgment of non pros. for failure to do so.
Prior to the adoption of Rule 1037(a), entry of judgment of non pros. in Pennsylvania for want of timely prosecution depended upon an exercise of discretion inherent in a court by the common law which, in England, had been legislatively augmented by the statute of 13 Charles II, sec. 9, c. 2, par. 3, limiting to one year the time within ...