Appeals from judgments of Court of Common Pleas No. 7 of Philadelphia County, as of Court of Common Pleas No. 4, Sept. T., 1946, No. 3620, and Court of Common Pleas No. 3, Sept. T., 1946, No. 3621, in case of William Gallagher, a minor, by John Gallagher, his guardian, and John Gallagher, in his own right v. Jewish Hospital Association of Philadelphia.
James J. McCabe, Jr., with him David C. Toomey, and Duane, Morris & Heckscher, for appellants.
Israel Packel, with him Edward Gerald Donnelly, Jr., and Fox, Rothschild, O'Brien & Frankel, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno dissents.
These are appeals from the judgments of the Court of Common Pleas of Philadelphia County entered in favor of the defendant, Jewish Hospital Association of Philadelphia.
On November 16, 1946, plaintiffs caused a writ of assumpsit and a writ of trespass to be served upon the Jewish Hospital Association of Philadelphia. From that date plaintiffs took no further action until August 5, 1965, when complaints were filed alleging that the Hospital was responsible for injuries sustained by the minor plaintiff when the latter was placed in the hospital nursery on November 12, 1944. On August 26, 1965, the defendant hospital filed a motion for the entry of judgments of non pros because of the failure of the plaintiffs to take any action in the prosecution of their claims for a period in excess of 18 years. The lower Court granted the motions for non pros and entered judgments in favor of the defendant in both the assumpsit action and the trespass action.
It is well settled law that the question of granting a non pros because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower Court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof. Aldridge v. Great A. & P. Tea Co., 394 Pa. 57, 145 A.2d 695; Margolis v. Blecher, 364 Pa. 234, 72 A.2d 127; Potter T. & T. Co. v. Frank, 298 Pa. 137, 148 Atl. 50.
Plaintiffs' sole contention on these appeals is that Rule 1037(a) of the Pennsylvania Rules of Civil Procedure prescribes the exclusive procedure by which a defendant may obtain a judgment of non pros, where the original action is begun by the issuance of a writ of summons. Rule 1037(a) provides: "(a) If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros."
Plaintiffs' interpretation of the effect of this rule is erroneous. Beginning with the earliest history of the common law, it has always been the law that undue delay by a plaintiff after a suit has been commenced, is grounds for the Court to deny recovery by ordering a non pros of the action.*fn* In Waring Bros. & Co. v. Pa. R.R. Co., 176 Pa. 172, 35 Atl. 106, plaintiff's writ of summons was served on the defendant in 1879. The statement of claim was not filed until 1894, approximately 15 years after the writ of summons was filed. In upholding the grant of a judgment of non pros by the lower Court, this Court stated that the trial Court possesses an inherent power to grant a non pros for an unreasonable delay. This Court pertinently said (page 175): ". . . When it is considered that a delay of only six years in the bringing of such a suit gives rise to an absolute bar to its maintenance, at the mere will of a defendant, it seems useless to consider whether
the court in the exercise of its discretionary power, may not grant a non-suit for a mere wanton delay of more than fourteen ...