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BOYLES v. SULLIVAN (09/23/74)

decided: September 23, 1974.

BOYLES, APPELLANT,
v.
SULLIVAN



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, No. 3711, in case of Louis Boyles v. Eugenia C. Sullivan.

COUNSEL

Paul J. Duca, with him Joseph W. Atkinson, and Silver, Lovitz & Atkinson, for appellant.

Phillip B. Silverman, with him McWilliams & Silverman, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 230 Pa. Super. Page 453]

This is an appeal from an order denying appellant's petition to open a judgment of non pros., entered in the

[ 230 Pa. Super. Page 454]

    court below because of appellant's failure to answer interrogatories filed by the defendant.

Appellant, plaintiff below, filed a complaint in trespass on September 29, 1971, seeking damages for injuries sustained in an automobile accident which occurred on January 22, 1970. On October 29, 1971, counsel for the defendant-appellee entered an appearance and filed interrogatories to be answered by the plaintiff. Answers were not provided, and on January 26, 1972, defendant requested appellant's attorney to file the answers. By letter of March 21, 1972, plaintiff's attorney acknowledged that the interrogatories were overdue, and stated that they would "receive [my] attention very soon." On March 23, 1972, appellee sent appellant's counsel a letter with a copy of a motion for sanctions for failure to answer interrogatories. In this letter appellee notified appellant of his intention to file the motion on April 4, 1972. The motion was filed on that date and another letter was sent to appellant's counsel requesting that the interrogatories be answered. Appellant's counsel did not answer this letter and no answers were filed.

The motion for sanctions was not answered, and on June 13, 1972, the court below issued an order directing the plaintiff to answer the interrogatories within sixty days or suffer a judgment of non pros. No answers were filed and on October 20, 1972, one hundred and twenty-nine days after the court ordered the interrogatories to be answered, the judgment of non pros. was entered. Appellant's counsel was notified of the entry of the judgment on December 11, 1972. On November 23, 1973, ten months after the notification, appellant petitioned the court below to open the judgment. An answer was filed and on March 12, 1974, the petition was denied.

Appellant does not question the power of the court to enter an order directing the entry of a judgment of

[ 230 Pa. Super. Page 455]

    non pros. for failure to file answers to written interrogatories. The power is expressly granted by Pa. R. C. P. 4019(c) (3)*fn1 for failure of a party to answer interrogatories served under Pa. R. C. P. 4005. See Spilove v. Cross Transportation, Inc., 223 Pa. Superior Ct. 143, 297 A.2d 155 (1972). Rather, appellant ...


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