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GORDON-STUART LTD. ET AL. v. ALLEN SHOPS (03/29/76)

decided: March 29, 1976.

GORDON-STUART LTD. ET AL., APPELLANTS,
v.
ALLEN SHOPS, INC. ET AL.



Appeal from order of Court of Common Pleas of Montgomery County, No. 74-18340, in case of Gordon-Stuart Ltd., Baron E. Kessler, Katherine V. Kessler, and Gertrude B. Kessler, individually and trading and doing business as Kessler's and Kessler's Specialty Shop v. Allen Shops, Inc., R.B. Hunter, Inc., Viking Fire Protection, Inc., and Richard Frantz and John Doe Corporation.

COUNSEL

Miles Warner, with him Warner & Huntington, for appellants.

William B. Koch, for appellee, Richard Frantz.

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

Author: Cercone

[ 239 Pa. Super. Page 36]

This is an appeal from an order of the court below granting defendant Frantz's*fn1 motion to strike the plaintiffs' complaint. The events giving rise to the lower court's decision are as follows.

On June 24, 1973, the plaintiffs (appellants herein) filed a complaint in trespass and assumpsit naming Frantz, among others, as a defendant. Plaintiffs' cause of action was based upon an allegedly defective sprinkler system that malfunctioned in plaintiffs' shop. Defendant Frantz responded by filing preliminary objections seeking a more specific complaint. The lower court sustained the preliminary objections on March 25, 1974, and ordered plaintiffs to file a more specific complaint within twenty days. For reasons not apparent in the

[ 239 Pa. Super. Page 37]

    record, plaintiffs failed to comply with the order; and on October 4, 1974, Frantz caused a judgment of non pros. to be entered against the plaintiffs.

Thereafter, plaintiffs refrained from taking any action to have the non pros. removed. However, on December 24, 1974, plaintiffs commenced a second action which is apparently identical to the original suit that was non prossed. Frantz countered by filing preliminary objections which included a motion for a more specific complaint, and a motion to strike the complaint. The motion to strike was based upon the previous judgment of non pros. Plaintiffs then amended their complaint and filed an answer in opposition to the motion to strike. Plaintiffs' answer averred that the prior non pros. did not bar the instant action because they had offered to pay the defendant the costs incurred in the prior action. On April 23, 1975, the court below granted defendant Frantz's motion to strike and dismissed the complaint as to him alone. From this order the instant appeal followed.

The only question we need consider is: Whether the lower court erred in dismissing the instant complaint on the basis of a judgment of non pros. entered in a prior identical action, where the statute of limitations has not yet expired and plaintiffs have tendered the costs incurred by the defendant in the first action. In Bucci v. Detroit Fire & Marine Ins. Co., 109 Pa. Superior Ct. 167, 167 A. 425 (1933), we addressed this exact issue and concluded that it was error to dismiss the complaint. We perceive no reason, at this time, for not continuing to adhere to the rationale of Bucci.

In Bucci, the plaintiff issued a summons in assumpsit but failed to file a statement of his claim within the time prescribed by a local rule of court. Accordingly, the prothonotary entered a judgment of non pros. against the plaintiff. Plaintiff then paid the costs of the first action and proceeded to institute a ...


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