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decided: March 9, 1979.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Joseph R. Thompson, an individual citizen v. Americo V. Cortese, Prothonotary of the Court of Common Pleas of Philadelphia County, No. 5616 January Term, 1977.


Joseph R. Thompson, appellant, for himself.

Thomas Dempsey, with him Homer Cook Grasberger, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 41 Pa. Commw. Page 175]

This is an appeal from the dismissal of appellant's complaint in mandamus against the prothonotary of

[ 41 Pa. Commw. Page 176]

    the Court of Common Pleas of Philadelphia County. Appellant, attorney for the defendant in a trespass action, instituted this separate action to compel the prothonotary to accept a Praecipe to Enter Judgment based upon dismissal orders entered under former Local Rule of Civil Procedure § 350(1) (now Local Rule 130), which in relevant part provides:

Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary's office for a period of two (2) 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 (60) days' notice be given by publication once in [a newspaper of general circulation in the legal community].

Pursuant to the mandate of that rule, the prothonotary dismissed the trespass action with prejudice, for failure to prosecute, and so stamped the docket. Thereafter, appellant presented his praecipe.

The basic issue presented is whether it is the ministerial duty of the prothonotary to enter a judgment upon a praecipe of the party benefited by a purely administrative dismissal of a stale case.

[ 41 Pa. Commw. Page 177]

The prothonotary is not "an administrative officer who has discretion to interpret or implement rules and statutes." Warner v. Cortese, 5 Pa. Commonwealth Ct. 51, 55, 288 A.2d 550, 552 (1972). Therefore, if documents tendered for filing are proper on their face and in conformity to rules of court, a prothonotary does not have discretion to refuse to enter them, Warner v. Cortese, supra, and mandamus then is the appropriate remedy to compel him to perform his ministerial duty. Stewart v. Bechtel, 360 Pa. 123, 61 A.2d 514 (1948); UEC, Inc. v. Board of Arbitration Page 177} of Claims, 12 Pa. Commonwealth Ct. 54, 314 A.2d 521 (1974).*fn1

Consequently, although a judgment is in fact entered by the prothonotary, it nevertheless continues to be the judicial action of the court. See 6A Stand. Pa. Prac. Ch. 29, §§ 2-4, pp. 251-52.*fn2 Therefore, if the court has not specifically adjudicated the rights of the respective parties or directed the prothonotary to enter a judgment, the prothonotary's authority to enter a judgment must have an express basis in statute or rule of court, 6A Stand Pa. Prac. Ch. 29, §§ 18-20 and §§ 45-46, pp. 261-64 and 284-86, and the authority is confined to the circumstances spelled out by the statute or rule. See especially, Haverford Township School District v. Herzog, 314 Pa. 161, 171 A. 455 (1934); Rhinehart v. Jordan, 313 Pa. 197, 169 A. 151 (1933); Watkins v. Neff, 287 Pa. 202, 134 A. 625 (1926).*fn3

[ 41 Pa. Commw. Page 178]

Appellant contends that Pa. R.C.P. No. 1039 provides the authority for the entry of judgment in this case. The Rule provides:

In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall enter judgment upon praecipe of a party in the following instances:

(1) Upon a verdict of a jury, if no timely post trial motion is filed.

(2) When a court grants or denies relief, but does not itself enter judgment or order the prothonotary to do so. (Emphasis added.)

Thus the intermediate question is whether the administrative dismissal of a stale suit constitutes a denial of relief by the court.

Appellant assumes that a dismissal with prejudice for failure to prosecute a claim is a denial of relief to the plaintiff. However, such a dismissal with prejudice only means that the plaintiff whose complaint is thus dismissed cannot reinstate that complaint unless he first petitions the court to exercise its discretion to remove the non pros and establishes certain facts.*fn4

Can a non pros be a denial of relief if it is not res judicata? A non pros does not deny relief in that it

[ 41 Pa. Commw. Page 179]

    is not an adjudication on the merits. Thus, if the statute of limitations has not run, a plaintiff previously non prossed can maintain a second suit upon the identical cause of action, provided only that he pay the costs incurred in the prior action. Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa. Superior Ct. 35, 361 A.2d 770 (1976). The Gordon-Stuart case expressly re-affirmed this rule following the earlier case of Bucci v. Detroit Fire & Marine Insurance Co., in which the court held:

[T]he legal effect of the non pros could not prevent the entry of a suit for the same cause of action within the statute of limitations. . . . The penalty suffered by the plaintiffs is the delay in the trial of their cause and payment of costs incurred, yet if the statute of limitations has not expired, the non pros of the first action cannot prevent the institution of the second suit.

109 Pa. Superior Ct. 167, 174, 167 A. 425, 427-28 (1933).

As a practical matter, the dismissal of the underlying case here could have barred relief because, if the complaint is not reinstated as of its original date, the statute of limitations might have run so as to preclude a viable new suit. However, it is clearly not feasible to place the adjudication of the statute of limitations question upon the shoulders of the prothonotary under Pa. R.C.P. No. 1039 upon mere presentation to him of a praecipe.*fn5 Thus, at best, it is uncertain whether the words "denial of relief" in the rule include the dismissal involved here.

[ 41 Pa. Commw. Page 180]

When the words of a rule are not free of ambiguity, the intent of the Supreme Court may be ascertained by considering among others, "(1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied; (4) the object to be attained" and "(6) the consequences of a particular interpretation." Pa. R.C.P. No. 127(c). Here, all the above considerations point to the same conclusion.

The Procedural Rules Committee's explanatory comment to Rule 1039 indicates that subdivision (2) uses general language in order to avoid "inadvertently omitting" instances in which the rule would be applicable. However, a further reading of the comment, and the cases cited therein, make clear that the rule was not designed to be a catch-all for every conceivable kind of court disposition. Rather, the rule was directed primarily at a specific problem that had arisen in the appellate courts, premature appeals.*fn6

Kane v. Allegheny County Retirement Board, 7 Pa. Commonwealth Ct. 262, 299 A.2d 686 (1973), provides an example of the kind of procedural gaffe which Rule 1039 is intended to eliminate. In Kane, a mandamus action, the lower court had ordered the defendant to pay the plaintiff-employees retirement benefits upon termination of their employment, but conditioned upon payment by plaintiffs of certain contributions to a fund. Defendant prematurely filed an appeal to this Court, never having first praeciped the lower court's order into a final judgment. Although

[ 41 Pa. Commw. Page 181]

    this Court considered the merits of the appeal in the interest of judicial economy, it also warned that it would continue to require strict conformity with proper procedure so as "to provide an orderly administration of appeals," 7 Pa. Commonwealth Ct. at 266, 299 A.2d at 688, meaning that a party must use Rule 1039(2) to convert a lower court's resolution of the merits of a case into a final judgment before appealing.

The clear inference from this Court's references to Rule 1039, as the Kane case illustrates, is that the rule should function primarily to forge the necessary judgment linking a jury's or lower court's final decision and the entry of an appeal.*fn7

Thus it seems clear to us that the necessity for the rule, the circumstances under which it was promulgated and the mischief to be remedied by the rule all deal with the proper timing of an appeal from a decision of a court or jury which is otherwise not appealable until formally docketed as a judgment.

[ 41 Pa. Commw. Page 182]

We also observe that Rule 1039(2) originally provided for the entry of judgment upon praecipe of a party "upon a decision by the court granting or denying relief." (Emphasis added.) The explanatory comment of 1973 notes that the revision to omit the word decision was stylistic only. Therefore the deletion was not intended to work any substantive change. The word "decision" strongly connotes a judicial resolution of a question submitted to a court. As the lower court in this case noted, the dismissal of the trespass case was "merely an administrative procedure" undertaken "to close the dockets on stale cases" and did not involve a "consideration of the merits." We would add that it was not even occasioned upon the motion of a party to the case.

The consequences of our interpretation of this rule should be briefly noted. Pennsylvania Rule of Judicial Administration 1901 sets forth the mandate for the local rule of court which caused the dismissal of the original trespass action. These rules implement a judicial policy to resolve pending cases as promptly as possible. However, if a plaintiff's stale claim is accordingly dismissed, he may still petition the court to take off the non pros or bring a second action regardless of whether or not a formal entry of judgment has been made.*fn8 Therefore, our holding that the prothonotary has no authority to enter judgment upon the praecipe of a party in this case will neither

[ 41 Pa. Commw. Page 183]

    impede the policy effectuated by Pa. R.J.A. No. 1901 and the local rule of court nor dampen the effectiveness of the rules.

Additionally, the coupling of Rule 1039 onto a dismissal under the local rule in circumstances like these would allow a party to obtain a judgment of non pros without presenting a motion to the court or otherwise initiating any procedural steps forcing the other party to act or be put out of court. The securing of a judgment under such a procedure would result in a novel form of practice in the state.*fn9 Thus, acceptance of appellant's interpretation of Rule 1039, if not merely authorizing a useless formality, would constitute approval of a new kind of procedure with unforeseen repercussions in established areas of the law.

Unless the intent of Rule 1039 to grant the prothonotary the authority and impose the ministerial duty to enter a judgment in these circumstances were clear, we should not interpret a rule originally promulgated to ward off premature appeals to create a peculiar new procedural animal.

[ 41 Pa. Commw. Page 184]

The order below is affirmed.


And Now, this 9th day of March, 1979, the order of the Court of Common Pleas of Philadelphia County, No. 5616 January Term, 1977, dismissing the plaintiff's complaint in mandamus, is hereby affirmed.



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