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JOHN CORCORAN AND FRANCIS BARR v. LOUIS FIORENTINO (05/02/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 2, 1980.

JOHN CORCORAN AND FRANCIS BARR
v.
LOUIS FIORENTINO, APPELLANT

No. 2961 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, No. 6314 March Term, 1969.

COUNSEL

Curtis P. Cheyney, III, Philadelphia, for appellant.

Danial Diadul, Philadelphia, for appellees.

Cercone, President Judge and Watkins and Hoffman, JJ.

Author: Hoffman

[ 277 Pa. Super. Page 257]

Appellant (defendant) contends that the lower court erred in reinstating this case after it had been dismissed pursuant to a local rule of court.*fn1 We agree and, accordingly, reverse

[ 277 Pa. Super. Page 258]

    the order of the court below and reinstate the order dismissing the case.

On March 24, 1969, appellees (plaintiffs) filed a complaint to recover damages for injuries allegedly sustained in an automobile accident. Following the denial of his preliminary objections, defendant initiated discovery in April of 1969. No proceedings were docketed in the Prothonotary's Office between October 7, 1971, and March 31, 1974. On March 31, 1974, following published notice in The Legal Intelligencer, the action was dismissed with prejudice for failure to prosecute.*fn2 The Prothonotary did not give written

[ 277 Pa. Super. Page 259]

    notice of the dismissal pursuant to Pa.R.Civ.P. 236(a).*fn3 On September 8, 1977, plaintiffs filed an application to reinstate the action. On September 28, 1977, the lower court vacated the order which had dismissed the action and granted leave to defendant to file a motion to dismiss within thirty days. Defendant timely filed such a motion, and, on October 20, 1978, the lower court entered an order reaffirming that portion of the September 28, 1977, order reinstating the action and denying the motion to dismiss. The lower court subsequently amended that order to enable defendant to appeal to this Court.*fn4 This appeal followed.

Rule 350 of the Rules of Civil Procedure of the Court of Common Pleas of Philadelphia County (Philadelphia Rule 350) permits the reinstatement of an action within three months of the date of dismissal "for good cause shown."*fn5 In the instant case, the lower court did not determine whether plaintiffs complied with Philadelphia Rule 350 in seeking reinstatement because it concluded that Philadelphia Rule 350 is null and void. The court reasoned that the local rule conflicts with Pa.R.Civ.P. 236, which requires the Prothonotary to give the parties notice of the entry of any order in an action, in that the local rule did not require the Prothonotary to notify a litigant of the dismissal of its

[ 277 Pa. Super. Page 260]

    action.*fn6 While we agree with the lower court that Rule 236 was not complied with in this case, we conclude that Philadelphia Rule 350 and Rule 236 do not conflict. Philadelphia Rule 350 establishes a procedure for disposing of inactive cases; it makes no mention of the procedure after a case has been dismissed. Rule 236, on the other hand, applies only after an order has been entered. Because Philadelphia Rule 350 and Rule 236 apply at two different stages of the proceedings, we perceive no conflict between the two rules. We must now determine the consequences of the failure to comply with Rule 236 in this case.

As stated previously, Philadelphia Rule 350 requires an application for reinstatement to be filed within three months of dismissal. Where notice that the case has been dismissed has not been given pursuant to Rule 236, however, the party seeking reinstatement may not learn of the dismissal until after the expiration of the three month period. We therefore conclude that the failure to give Rule 236 notice to plaintiffs in this case excuses their failure to file their application to reinstate within three months of dismissal. Cf. Rush v. Rush, 268 Pa. Super. 82, 407 A.2d 447 (1979) (failure to file timely exceptions to lower court's decree nisi excused because Rule 236 notice had not been given).*fn7

Our inquiry now focuses upon whether "good cause" was shown for reinstating the action pursuant to Philadelphia Rule 350. The requirements for a showing of "good cause" are identical to those for the opening of a judgment of non pros: "'(1) the petition must be timely filed; (2) the reason for the default reasonably explained; and, (3) the facts constituting grounds for the cause of action be alleged.'" International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa. Super. 378, 382, 378 A.2d

[ 277 Pa. Super. Page 261986]

, 988 (1977) (quoting Boyles v. Sullivan, 230 Pa. Super. 453, 455, 326 A.2d 440, 442 (1974)). See generally Thompson v. Hahn Motors, Inc., 269 Pa. Super. 271, 409 A.2d 884 (1979).

In their application for reinstatement, plaintiffs offered the following reason to explain the lack of activity in the action before its dismissal: "The Plaintiffs' counsel . . . was involved in extensive litigation involving Yellow Cab Companies for a period of several years preceding the dismissal of this case and due to personal reasons involving his relationship with his former associates, the case was not properly processed by his associates unbeknownst to him."

Our Court has held that "[i]f counsel's mistake, oversight, or neglect is to be a reason to vacate a non pros, that mistake, oversight or neglect must be reasonably explained." Dupree v. Lee, 241 Pa. Super. 259, 266, 361 A.2d 331, 335 (1976) (emphasis in original). We conclude that plaintiffs have not reasonably explained the lack of activity in the case between October 7, 1971, and March 31, 1974. While plaintiffs' counsel's explanation might be sufficient to justify a short delay, it is insufficient to justify his failure to proceed with the case for a period of almost thirty months. The purpose of local rules of court such as Philadelphia Rule 350 is to protect our trial courts from being burdened by stale claims. International Telephone and Telegraph Corp. v. Philadelphia Electric Co., supra, 250 Pa. Super. at 384, 378 A.2d at 989. This purpose would be undermined if plaintiffs' counsel's explanation of the delay could be deemed reasonable. Consequently, because plaintiffs have failed to reasonably explain the default which occasioned the dismissal of their action, the lower court erred in reinstating this action.*fn8

[ 277 Pa. Super. Page 262]

Order reversed and dismissal entered by the Prothonotary reinstated.


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