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

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 ...


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