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WILLIAM H. CARTER v. JAMES AMICK ET AL. (03/31/77)

decided: March 31, 1977.

WILLIAM H. CARTER, JR., APPELLANT,
v.
JAMES AMICK ET AL.



Appeal from the Order of April 8, 1976, of the Court of Common Pleas of Allegheny County, Civil Division at No. 82 October Term, 1971 and No. 2921 July Term, 1971. No. 766 April Term, 1976.

COUNSEL

John A. Caputo, Pittsburgh, with him Clyde G. Tempest, Monongahela, for appellant.

James A. Wood, Pittsburgh, with him Robert E. Wayman, Pittsburgh, for appellee.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 246 Pa. Super. Page 532]

Appeal is taken from an order of the court below dismissing appellant's cause of action, with prejudice, as a result of inactivity. Because the lower court abused its discretion, we reverse and reinstate those cases "terminated" by the order of the lower court.

On August 3, 1969, appellant was a passenger in an automobile which collided with another vehicle driven by appellee James Amick. This action for personal injuries was initiated by a summons in trespass filed June 17, 1971 at No. 2921 July Term, 1971. A second writ of summons was filed on July 2, 1971 at No. 82 October Term, 1971, adding James Amick, Sr. as a defendant. On June 29, 1973, the writ was reissued and a complaint filed at No. 2921 July Term, 1971. Appellant had intended to obtain reissuance of the writ and to file his complaint at No. 82, but mistakenly listed the wrong number and term. Correction was effected by order of court on August 14, 1973. Appellant's last action of record, prior to appellees' petition to terminate, was the filing of answers to appellees' interrogatories on February 20, 1974. At sometime during the period from late March to early April of 1976,*fn1 the parties informed each

[ 246 Pa. Super. Page 533]

    other of diametrically opposed objectives. Appellees intended to petition the lower court to dismiss the case for inactivity, while appellant planned to petition for reactivation of the matter. Both petitions were presented to the court on April 2, 1976, at which time counsel for each party argued. On April 8, 1976, the court below signed an order dismissing the cases for inactivity.

Appellees' petition sought termination on the basis of Local Rule 229(e), entitled "Termination of Inactive Cases," which has been adopted in Allegheny County as a supplement to Pa.R.C.P. No. 229. Rule 229(e) states:

"Any matter pending in the Civil or Family Division in which there has been no activity of record for a period of two (2) years or more shall be terminated automatically by operation of law by reason of inactivity. The first period of two years is to begin on January first, 1973. The matter may be reactivated by the Court upon petition for good cause shown after such notice as the Court shall direct. The filing of a paper after automatic termination under this rule shall not reactivate the terminated matter. Adopted June 26, 1974. Eff. Jan. 1, 1975."

Appellant's action, however, was not treated, either by the court or by appellees, as automatically terminated under Rule 229(e). Appellees presented a petition for termination, and the court entered its order "upon consideration of the foregoing Petition for Termination as a Result of Inactivity," without any mention of Rule 229(e). The action of the court was thus, functionally, the granting of a non pros.

The standard of appellate review in this area was summarized in Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112, 228 A.2d 732 (1967), where our Supreme Court observed that, "[i]t is ...


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