No. 395 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Lancaster County, at No. 133 December Term, 1972.
James P. Coho, Lancaster, with him Marshall M. Cohen, Lancaster, for appellants.
No appearance entered nor brief submitted for appellee, William L. Hershey.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion.
[ 252 Pa. Super. Page 241]
Appellants Frank Segro and Mary Segro contend that the court below erred in striking off a judgment of non pros entered against appellee William L. Hershey. We, however, are satisfied that the lower court acted properly and affirm.
The facts necessary to a decision are undisputed and may be summarized as follows: On December 29, 1972, appellee filed a praecipe for a writ of summons in trespass, naming Frank Segro, Mary Segro, Richard Stoll and Dorothy Stoll as defendants. No complaint having been filed, the Stolls, on February 5, 1973, ruled appellee to file his complaint within twenty days or suffer a judgment of non pros. See Rule 1037(a), Pa.R.C.P.*fn1 The lower court subsequently granted appellee an extension of time within which to file his complaint. However, when that period passed without a complaint having been filed, the Stolls, on March 23, 1973, caused judgment of non pros to be entered of record in their favor.
On September 26, 1975, appellants by praecipe directed the prothonotary to enter a judgment of non pros in their favor because appellee had never filed his complaint; the prothonotary thereupon entered such judgment of record. On January 2, 1976, appellee filed his petition to strike off
[ 252 Pa. Super. Page 242]
the judgment of non pros. Appeal is taken to this Court from the order of the court below granting appellee's petition and striking off the judgment of September 26, 1975.
It is well-established that a motion to strike off a judgment of non pros challenges only defects appearing on the face of the record and that such a motion may not be granted if the record is self-sustaining. Saint Vladimir Ukrainian Orthodox Church v. Preferred Risk Mutual Insurance Company, 239 Pa. Super. 492, 362 A.2d 1052 (1976). Our scope of review on appeal from an order striking off a judgment of non pros is distinctly delimited. "[U]nlike a review of an order granting the opening of a judgment wherein the test is whether there was an abuse of discretion on the part of the court below,*fn2 on our review of this order we look only to the record to ascertain the presence of any defects . . . ." Cox v. Felice Perri and Sons, 412 Pa. 415, 418, 195 A.2d 79, 80-81 (1963) (footnote added). In the instant case, appellants contend that an examination of the record reveals no defects and that the order appealed from is, therefore, invalid. We disagree.
The lower court concluded that the judgment of non pros in favor of appellants had been improvidently entered because they had not first served on appellee a rule to file his complaint in accordance with Pa.R.C.P. 1037(a). Appellants take the position that it was unnecessary for them to rule appellee to file a complaint in view of the fact that this had already been done by the Stolls on ...