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EUGENE A. TICE AND DIANE R. LINDSAY BRADLEY v. NATIONWIDE LIFE INSURANCE CO. (02/06/81)

filed: February 6, 1981.

EUGENE A. TICE AND DIANE R. LINDSAY BRADLEY, ADMINISTRATRIX OF THE ESTATE OF ROBERT LINDSAY, DECEASED
v.
NATIONWIDE LIFE INSURANCE CO., APPELLANT



No. 2938 October Term, 1978, Appeal from Order of the Court of Common Pleas of Philadelphia County, Trial Division, Civil Section, No. 2580 September Term 1974.

COUNSEL

Marvin Comisky, Philadelphia, for appellant.

Michael Goldman, Philadelphia, for appellees.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Brosky and Wickersham, JJ. Spaeth, J., files a concurring opinion, in which Cercone, President Judge, and Price, J., join. Cavanaugh, J., files a dissenting opinion.

Author: Wickersham

[ 284 Pa. Super. Page 222]

This appeal by Nationwide Life Insurance Co. (hereafter Nationwide) is presently before our court for the second time. Basically, Eugene A. Tice, plaintiff below, filed a complaint in assumpsit on September 16, 1974, seeking the proceeds of a $50,000 life insurance policy issued by appellant on the life of Robert Lindsay. After appellant filed an answer and new matter alleging that Tice had no insurable interest in the life of Robert Lindsay, the insured's widow, Diane Lindsay Bradley, intervened as a party plaintiff on behalf of the insured's estate.

Bradley filed interrogatories to be answered by appellant on June 16, 1976, which were not answered. Utilizing the sanction procedures authorized by Philadelphia Civil Rule 4005(d)*fn1 the Prothonotary of Philadelphia entered a final order of judgment by default on December 9, 1976.

Nationwide filed a petition to open judgment entered against it. Judge Goodheart entered an Order dismissing

[ 284 Pa. Super. Page 223]

    that petition and Nationwide appealed to our court and we affirmed.*fn2 We held then that the lower court had not erred in holding that appellant failed to reasonably explain or reveal a legitimate excuse for the delay that occasioned the default judgment. It is important to note that appellant also argued on appeal a contention that this default judgment was not entered in strict compliance with Rule 4005(d), attempting thereby to seek to benefit by our then recent decision in Strickler v. United Elevator Co. (Inc.), 248 Pa. Super. 258, 375 A.2d 86 (1977).*fn3

We held, however, that Rule 4005*(d) was in effect at all relevant times, and any contention that this default judgment

[ 284 Pa. Super. Page 224]

    was not entered in compliance therewith could and should have been presented to the lower court. We refused, therefore, to consider appellant's Strickler argument for the first time on appeal.

More than a year later Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005(d)] was before a three judge panel of our court in Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979).*fn4 In Gonzales the Prothonotary of Philadelphia had entered an interlocutory order pursuant to Philadelphia Civil Rule 145 which directed appellee to answer appellant's interrogatories within 30 days or suffer a judgment of non pros. Thereafter judgment of non pros was entered by the prothonotary and more than a year later appellee moved to strike the judgment of non pros. The lower court, by the Honorable Abraham J. Gafni, entered an order striking the judgment of non pros which order was based upon a finding that the procedure prescribed by Philadelphia Civil Rule 145 was in conflict with Pa.R.C.P. 4019 and therefore invalid.

In Gonzales, we said:

"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.

"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." Subsection (c) identified the types of orders which a court may enter when acting under subsection (a).

[ 284 Pa. Super. Page 225]

"Philadelphia Civil Rule No. 145 purports to establish a procedure by which the Prothonotary shall, on praecipe and certification of notice, "enter an interlocutory order requiring the adverse party to file answers within thirty (30) days . . ." If answers are not filed within such period of thirty days and the moving party follows the prescribed procedure, the interlocutory order will become final and, on praecipe, a final sanction order will be entered. The mandatory sanction, if the defaulting party is a plaintiff, is an order entering a judgment of non pros. The procedure established by the Philadelphia rule does not require intervention by the court and does not permit the Prothonotary to exercise discretion in fashioning the sanction order.

"Pa.R.C.P. No. 4019 is clear. It establishes an unequivocal and mandatory procedure. Where answers to interrogatories have not been filed, a motion must be presented to the court to determine the default. Hanchey v. Elliott Truck Brokerage Company, 421 Pa. 131, 135, 218 A.2d 743, 745 (1966). Upon finding that a default has occurred, "the court may . . . make an appropriate order." Subdivision (c) of Pa.R.C.P. No. 4019 amplifies the scheme of the rule by designating specific sanction orders which may be appropriate under particular circumstances. The imposition of specific sanctions, however, is largely within the discretion of the court. Pompa v. Hojnacki, 445 Pa. 42, 45, 281 A.2d 886, 888 (1975). See also: 10 Goodrich-Amram 2d § 4019(a):2.1, 3.1; 5A Anderson Pennsylvania Civil Practice § 4019.2. As a general rule, sanctions will not be imposed in the absence of some wilful disregard or disobedience of a court order or an obligation expressly stated in the Rules. In any event, it is the court which has been given responsibility for overseeing discovery conducted by the parties and which may enter appropriate sanctions to insure the adequate and prompt discovery of matters allowed by the Rules of Civil Procedure.

"This responsibility cannot be delegated to a ministerial officer such as a Prothonotary. Although he acts as clerk

[ 284 Pa. Super. Page 226]

    for the court of common pleas, the Prothonotary possesses no judicial powers. Irwill Knitwear Corp. v. Wexler, 229 Pa. Super. 48, 323 A.2d 23 (1974); Smith v. Safeguard Mutual Insurance Company, 212 Pa. Super. 83, 86, 239 A.2d 824, 826 (1968); Warner v. Cortese, 5 Cmwlth. 51, 288 A.2d 550 (1972).

"In the instant case, we hold that Philadelphia Civil Rule 145 is in conflict with Pa.R.C.P. No. 4019 and invalid. Therefore, the Prothonotary lacked the power to enter a judgment of non pros against appellee, and a judgment so entered was null and void. The trial court properly ordered the same stricken.

"Order affirmed." (Footnotes Omitted)

Id., 268 Pa. Super. at 249-253, 407 A.2d at 1340-1342.

Following our affirmance in Tice v. Nationwide Life Ins. Co., 253 Pa. Super. 118, 384 A.2d 1257, supra, the appellant, Nationwide, then filed a motion to strike the default judgment. The lower court denied the motion and a three judge panel of our court heard the appeal.

Subsequently, we granted a petition for reargument en banc in order to consider the impact of Gonzales, supra, on this and other recent decisions.*fn5

[ 284 Pa. Super. Page 227]

We agree with our panel conclusion in Gonzales, supra, that Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005(d)] is in conflict with Pa.R.C.P. 4019 and therefore invalid. We hold that the prothonotary lacked the power to enter judgment and that the judgment so entered was subject to avoidance. Such a judgment must be stricken, if as here, an appeal was pending when Gonzales was handed down.*fn6 We further hold that appellant has not waived its right to such application in the instant case

[ 284 Pa. Super. Page 228]

    because of a failure to argue the invalidity of Philadelphia Civil Rule ...


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