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COX v. FELICE PERRI & SONS (11/12/63)

November 12, 1963

COX
v.
FELICE PERRI & SONS, APPELLANT.



Appeal, No. 180, March T., 1963, from order of Court of Common Pleas of Allegheny County, April T., 1961, No. 2090, in case of George Cox v. Felice Perri and Sons and Easton Lumber and Builder's Supply Company. Order reversed without prejudice.

COUNSEL

Arthur R. Gorr, with him Stein and Winters, for defendant, appellant.

Leonard E. Price, and Price & Bercik, for plaintiff, appellee.

Gary F. Sharlock, with him Mercer & Buckley, for additional defendant, appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 412 Pa. Page 415]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

[ 412 Pa. Page 416]

The propriety of an order of the Court of Common Pleas of Allegheny County which struck off a judgment of non pros entered in a trespass action for personal injuries is the sole issue on this appeal.

On February 20, 1961, George Cox (Cox) instituted an action of trespass for personal injuries against Felice Perri and Sons, (Perri), a partnership, sustained as the result of an accident which occurred on July 16, 1959.Perri joined Easton Lumber & Builders Supply Company (Easton) as an additional defendant.

On October 10, 1962, Perri's counsel served on Cox's counsel a notice for the taking of Cox's depositions on November 1, 1962. Cox did not appear for the deposition. The case was then listed for conciliation on January 8, 1963 at which time Cox's counsel informed the court and Perri's counsel that he could not locate Cox and, therefore, conciliation was not possible. On January 28, 1963, with due notice to Cox's counsel, Perri's counsel presented a motion for sanctions under Pa. R.C.P. 4019(c)(3),*fn1 seeking a judgment of non pros. Neither Cox nor his counsel appeared to oppose that motion, yet, nevertheless, the court denied the motion.

On March 15, 1963 - over two years after institution of suit - Perri's counsel again moved for judgment of non pros and again neither Cox nor his counsel appeared to oppose the motion. The court then directed that a judgment of non pros against Cox be entered unless he appeared for a deposition within thirty days of the order. Although Cox's counsel received notice of this order neither Cox ...


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