No. 2872 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Berks County - Civil Action - Law at No. 113 August Term, 1976 A.D.,
Lynn Erickson Stock, Reading, for appellants.
Arthur Ed Saylor, Reading, for appellees.
Price, Dowling and Gates, JJ.*fn* Dowling J., files a dissenting opinion.
[ 275 Pa. Super. Page 526]
This is an appeal from an order of the lower court summarily dismissing appellants' petition to open or to strike the judgment entered against them on October 30, 1978. For the reasons stated herein we affirm the order of the lower court.
The essential facts of this case are not in dispute and may be summarized as follows: On June 17, 1975 sixteen year old Craig Allen Jones sustained fatal injuries when he was struck by a tractor-trailer truck while riding his bicycle. Bertram E. Jones and Andrea J. Jones, as administrators of decedent's estate and individually commenced an action in trespass against James M. Trexler,*fn1 Commercial Leasing Inc.,*fn2 and Ennis Manufacturing Company, Inc.*fn3 On April 19, 1977, appellees, Trexler, Commercial and Ennis served interrogatories on appellants, the Joneses, directing that they be answered within twenty days of service. No answers were filed.
Thereupon appellees, after notifying appellants of their intention to initiate sanction procedures, filed a motion for an order of sanction pursuant to Pa.R.C.P. 4019(c)(3) on October 17, 1977 seeking dismissal of appellants' complaint and entry of judgment in favor of appellees. Contemporaneously appellees filed a petition for a rule to show cause why the motion for order of sanction should not be granted, which the court issued returnable on November 7, 1977.
No answers to the rule or interrogatories having been filed, appellees, by letter dated November 23, 1977 notified appellants of their intention to appear in court and move the rule be made absolute on November 28, 1977. Subsequently,
[ 275 Pa. Super. Page 527]
the court entered an order dismissing appellants' complaint with prejudice and entering judgment for appellees.
On December 30, 1977, appellants filed a petition to open or to strike the order dismissing their complaint. Appellees filed an answer thereto on January 13, 1978.
The case was listed for argument on September 5, 1978, and, upon the motion of appellants, the court granted a continuance until the October 2, 1978 argument court. On October 2, 1978, appellants again moved for a continuance; the motion was granted, over appellee's objection, with the proviso ...