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PIERRE GONZALES v. PROCACCIO BROTHERS TRUCKING COMPANY (07/27/79)

decided: July 27, 1979.

PIERRE GONZALES, A MINOR, WARD OF THE CITY OF PHILADELPHIA
v.
PROCACCIO BROTHERS TRUCKING COMPANY, APPELLANT AND CLIFF MOORE AND PARNELL ASSOCIATES, ADDITIONAL DEFENDANTS



No. 526 October Term, 1978, Appeal from the Order of the Court of Common Pleas -- Civil Division, Law -- of the County of Philadelphia, entered November 25, 1977 as of October Term, 1974, No. 2568.

COUNSEL

Joel Paul Fishbein, Philadelphia, for appellant.

James M. Penny, Jr., Deputy City Solicitor, Philadelphia, for appellee Gonzales.

Reuben Singer, Philadelphia, for appellee Moore, and Dudley Hughes, Philadelphia, for appellee Parnell Associates, did not file briefs on behalf of said appellees.

Van der Voort, Wieand and Lipez, JJ.

Author: Wieand

[ 268 Pa. Super. Page 248]

In this appeal we are asked to decide the validity of a local rule of court which authorizes the Prothonotary to enter a judgment of non pros when a plaintiff has failed to answer interrogatories served upon him by a party pursuant to Pa.R.C.P. No. 4005.

The minor plaintiff, Pierre Gonzales, by his guardian, the City of Philadelphia, filed a complaint in trespass to recover damages for injuries sustained when his arm was caught in a conveyor belt on premises of defendant-appellant, Procaccio Brothers Trucking Company.*fn1 Written interrogatories were filed by Procaccio Brothers and served on the City on January 28, 1976. Supplemental interrogatories were filed and served on March 5, 1976. When answers were not forthcoming, appellant, on May 6, 1976, served notice on appellee that an interlocutory order would be requested from the Prothonotary in accordance with Philadelphia Civil Rule 145. On May 18, 1976, the Prothonotary entered an interlocutory order which directed appellee to answer appellant's interrogatories within thirty days or suffer a judgment of non pros. By July 15, 1976, appellee's answers had still not been filed, and the Prothonotary, upon praecipe by appellant, entered judgment of non pros against appellee. On August 10, 1977, appellee moved to strike the judgment of non pros. This motion was argued and, on November 25, 1977, the Honorable Abraham Gafni entered an order striking the judgment of non pros. The order was based upon a finding that the procedure prescribed by Philadelphia Civil Rule 145 was in conflict with Pa.R.C.P. No. 4019 and, therefore, invalid.*fn2

[ 268 Pa. Super. Page 249]

Although the several courts of common pleas may properly adopt local rules, such rules are invalid to the extent that they conflict with or are inconsistent with the Pennsylvania Rules of Civil Procedure. City of Philadelphia v. Percival, 464 Pa. 308, 346 A.2d 754 (1975); Gilmer v. Philadelphia Transportation Company, 237 Pa. Super. 57, 60, 346 A.2d 346, 348 (1975); Act of June 21, 1937, P.L. 1982, No. 392, § 2, as amended, 17 P.S. § 62.*fn3

In 1977, when appellant's judgment was stricken, Pa.R.C.P. No. 4019(a)(1) provided that the "court may, on motion, make an appropriate order if a party wilfully fails to file answers . . . to written interrogatories served under Rule 4005."*fn4 Subsection (c) identified the types of

[ 268 Pa. Super. Page 250]

    orders*fn5 which a court may enter when acting ...


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