NO. 2184 OCTOBER TERM, 1976, Appeal from the Order of the Court of Common Pleas, Trial Division, Law, Philadelphia County, at No. 1676 November Term, 1970.
Wayne M. Thomas, Philadelphia, with him Harold E. Kohn, Philadelphia, for appellant.
William F. Sweeney, Philadelphia, with him Harvey, Pennington, Herting & Renneisen, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result.
[ 250 Pa. Super. Page 380]
This is an appeal from an order which vacated a prior order dismissing the above captioned action, with prejudice, because no proceedings had been docketed in the Prothonotary's Office for a period of two successive years.
This litigation was initiated by International Telephone and Telegraph Corporation, appellee, on November 12, 1970, by a complaint in civil trespass seeking to recover damages allegedly resulting from the interruption of its electrical service during a multi-state blackout which occurred on June 5, 1967. Philadelphia Electric Company, appellant, filed an answer to the complaint on May 19, 1971. Prior to that date both parties had filed interrogatories addressed to the other. On August 16, 1971, the lower court sustained objections to a portion of the interrogatories addressed to the plaintiff.
No further proceedings of any sort were docketed in the Prothonotary's Office between August 6, 1971, and May 22, 1974, when the action was dismissed by the Prothonotary, with prejudice, for failure to prosecute. Prior to taking such action the Prothonotary had caused notice to be published on four occasions in "The Legal Intelligencer" commencing with the issue of March 7, 1974. In those notices the appellee was advised that it might file a Certificate of Readiness or "other appropriate paper" prior to May 22, 1974, the proposed dismissal date. Appellee took no steps to prevent dismissal of the complaint on that date and, in consequence, an order of dismissal was entered.
This action was taken pursuant to local Rule 1047A of the Rules of Civil Procedure which provides:
"Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed
[ 250 Pa. Super. Page 381]
in the Prothonotary's Office for a period of two successive years, the action shall be dismissed, with prejudice, for failure to prosecute, under the provisions of this rule, and the docket so marked, provided that no less than sixty days' notice be given either by regular mail or by publication once in The Legal Intelligencer. Dismissal under this rule is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal."
Subsequently this Rule has been incorporated into Rule 350 of the Rules of Civil Procedure of the Court of Common Pleas of Philadelphia County. The first sentence of Rule 1047A has been repeated verbatim in Rule 350, but the second sentence has been qualified by the requirement that the application to ...