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DIANE SMITH v. EDWARD SWIATKOWSKI (04/10/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 10, 1981.

DIANE SMITH, APPELLANT,
v.
EDWARD SWIATKOWSKI, D.O. AND GEORGE B. SLIFER, JR. D.O.

No. 2593 October Term, 1978, Appeal from the order entered September 28, 1978 in the Court of Common Pleas of Philadelphia County, Civil Trial Division at April Term, 1976, No. 3224

COUNSEL

Stephen C. Josel, Philadelphia, for appellant.

Charles Roessing, Philadelphia, for Swiatkowski, appellee.

Joseph R. Davison, Philadelphia, for Slifer, Jr., appellee.

Hester, Wickersham and Lipez, JJ.

Author: Wickersham

[ 286 Pa. Super. Page 134]

On April 22, 1976, Diane Smith, appellant, brought this action in trespass against defendants alleging medical malpractice. After failing to respond to written interrogatories propounded by the defendants to plaintiff, a judgment of non pros was entered January 26, 1977 pursuant to Philadelphia Civil Rule 4005(d).

On September 9, 1978 a Motion to Strike was filed, nineteen months after the entry of the judgment of non pros by the prothonotary. The lower court dismissed the motion holding that the Motion to Strike was not promptly filed and because the judgment of non pros was entirely regular under the Court rule cited above. An appeal was taken to this court, and while pending, we decided Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979) and Tice v. Nationwide, 284 Pa. Super. 220, 425 A.2d 782 (1981).

Instantly 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

[ 286 Pa. Super. Page 135]

    as here, an appeal was pending when Gonzales was handed down.*fn1

Accordingly, we reverse the order of the lower court, and strike the judgments entered on behalf of appellees.


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