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KENNEDY v. BULLETIN COMPANY (10/28/75)

decided: October 28, 1975.

KENNEDY, APPELLANT
v.
THE BULLETIN COMPANY, ET AL.



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1963, No. 2631, in case of Daphne Elizabeth Kennedy v. The Bulletin Company and The Philadelphia Modeling and Charm School, Inc.

COUNSEL

Julius E. Fioravanti, for appellant.

Lawrence I. Washor, with him John R. McConnell, and Morgan, Lewis & Bockius, for appellee, The Bulletin Company.

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

Author: Hoffman

[ 237 Pa. Super. Page 67]

This appeal is taken from an order denying appellant's petition to open a judgment of non pros. Appellant contends that the lower court abused its discretion when it entered the judgment of non pros. against her.

On April 15, 1962, the appellee's newspaper printed an advertisement of the Philadelphia Modeling and Charm

[ 237 Pa. Super. Page 68]

School, Inc., containing a photograph of the appellant. Appellant filed a complaint in trespass against both the appellee and the Charm School on April 11, 1963, alleging that the publication was defamatory and in violation of her right to privacy. Pursuant to a written stipulation, the actions were severed and the appellee joined the Charm School as an additional defendant. On October 11, 1963, a praecipe for a jury trial was filed. No further action was taken until November 1, 1967, when the appellant served interrogatories on the appellee. The interrogatories were answered on June 24, 1968. On December 6, 1973, the appellant filed a certificate of readiness and a petition for major case listing, which was granted on January 8, 1974. On April 1, 1974, the appellee filed a petition for rule to show cause why a judgment of non pros. should not be granted. On May 24, 1974, the lower court entered an order granting the appellee a judgment of non pros. against the appellant. On June 21, 1974, the appellant filed a petition and rule to reconsider opening the judgment of non pros. and to reinstate the cause of action filed. The petition was denied on July 18, 1974.

[ 237 Pa. Super. Page 69]

"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. Admr. v. Frank, 298 Pa. 137, 148 A. 50." Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). A lower court properly enters a judgment of non pros. "when a party to the proceedings has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party . . ." James Page 69} Bros. Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). Thus, there are three tests which govern the entry of judgments of non pros.

First, the plaintiff's delay must indicate that he has not prosecuted the case with due diligence. A delay as long or longer than the applicable period of limitations is generally considered sufficient to warrant a judgment of non pros., if the other tests are met.*fn1 See 5 Goodrich-Amram, Standard Pennsylvania Practice, 108-109. In Gallagher v. Jewish Hospital Association of Philadelphia, supra at 115, 228 A.2d at 734, our Supreme Court, quoting Hruska v. Gibson, 316 Pa. 518, 175 A. 514 (1934), stated: "The statute of limitations fixes the time as two years from the happening of an accident to the bringing of suit. It imposes no hardship on those who institute suit to understand that they must bring this action within two years. It certainly does not impose a hardship on those bringing suit to require them to bring it to trial within a reasonable time thereafter. If it is against public policy to permit trespass suits to be begun more ...


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