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JOHN STANLEY JOHNSON v. MOORE MOTORS (03/13/81)

filed: March 13, 1981.

JOHN STANLEY JOHNSON, A MINOR BY JOHN T. JOHNSON AND SYLVIA JOHNSON, HIS GUARDIANS, AND JOHN T. JOHNSON AND SYLVIA JOHNSON, IN THEIR OWN RIGHT, AND STANFORD WOMACK, A MINOR BY HUGH WOMACK AND EUNICE WOMACK, HIS GUARDIANS, AND HUGH WOMACK AND EUNICE WOMACK, IN THEIR OWN RIGHT, APPELLANTS,
v.
MOORE MOTORS, INC. AND VOLKSWAGEN OF AMERICA, INC., VOLKSWAGENWERK AKTIENGESELLSCHAFT AND VOLKSWAGEN ATLANTIC, INC. AND JOSEPH GORDON AND JOHN STANLEY JOHNSON AND MARY SPRINGFIELD



No. 1943 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, at No. 1657 November Term, 1971.

COUNSEL

Martin Heller, Philadelphia, for appellants.

Earl T. Britt, Philadelphia, for Moore Motors, appellee.

David A. Scott, Pittsburgh, for Volkswagen of America, appellee.

John J. Coffey, Philadelphia, for Volkswagen Atlantic, appellee.

Frank X. O'Brien, Philadelphia, for John Stanley Johnson, appellee.

Thomas J. Ingersoll, Philadelphia, for Springfield, appellee.

Hester, Wickersham and Lipez, JJ.

Author: Wickersham

[ 285 Pa. Super. Page 238]

On July 24, 1971, plaintiff, John Stanley Johnson, was the operator of a 1970 Volkswagen automobile which he was operating in Whitemarsh Township, Montgomery, Pennsylvania, when the brakes allegedly failed completely, resulting in a collision with another motor vehicle. At the same time and place, plaintiff-appellant, Stanford Womack was a passenger seated in the right front seat of the said 1970 Volkswagen automobile. Suit was instituted in Philadelphia County in November of 1971 against defendant, Moore Motors, Inc. alleging negligent maintenance of the vehicle's brakes. Various discovery procedures ensued and on April 20, 1977, defendant, Moore Motors, Inc. filed supplemental interrogatories addressed to plaintiff-appellant, Stanford Womack. The interrogatories were not responded to and in

[ 285 Pa. Super. Page 239]

May of 1977, defendant filed a praecipe for Interlocutory Order under Philadelphia Civil Rule 4005*(d). Under Philadelphia local rules, the prothonotary automatically thereafter entered the Interlocutory Order, and on July 1, 1977, the prothonotary entered a Final Order of Judgment of Non Pros. Plaintiff-appellant then filed a petition to open the judgment of non pros which was denied by the lower court June 20, 1978, and an appeal was taken to this court from such denial.

In Gonzales v. Procaccio Bros. Trucking Co., 47 Pa. Super. 338, 407 A.2d 1338 (1979) our court held that Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005*(d)] was in conflict with Pa.R.C.P. No. 4019 and invalid. We recently held in Tice v. Nationwide Life Insurance Co., 284 Pa. Super. 220, 425 A.2d 782 (1981) that the denial of a motion to strike a judgment entered pursuant to Philadelphia Civil Rule 145 must be reversed if, as here, an appeal from such denial was pending when Gonzales was handed down. As in Tice, appellants here had not argued the invalidity of Rule 145 in the lower court. As explained in our opinion in Tice, we believe that we should give appellants the benefit of Gonzales, and that the policy reasons for holding that an argument not made in the lower court is waived do not apply here. We note further that in Tice, the plaintiff filed a petition to strike the judgment rather than a petition to open, as here. The basic difference between the former and the latter is that the former is directed to a defect on the face of the judgment while the latter is ...


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