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CHRISTINE STRINGER A/K/A CHRISTINE CUDDY v. ALBERT J. KAYTES AND STANFORD KEYNE AND ALBERT J. KAYTES AND COMPANY AND KAYTES & KELSEY-BARBER CORPORATION (05/08/81)

filed: May 8, 1981.

CHRISTINE STRINGER A/K/A CHRISTINE CUDDY
v.
ALBERT J. KAYTES AND STANFORD KEYNE AND ALBERT J. KAYTES AND COMPANY AND KAYTES & KELSEY-BARBER CORPORATION, APPELLANTS



No. 114 October Term, 1979, Appeal from the order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5443 January Term, 1973

COUNSEL

Richard S. March, Philadelphia, for appellants.

William L. Keller, Philadelphia, for appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Cercone

[ 286 Pa. Super. Page 553]

This is an appeal from the order of the court below vacating an earlier order which had dismissed plaintiff-appellee's action with prejudice for failure to prosecute, and reinstating the action. For the reasons which follow, we reverse and remand.

The pertinent events giving rise to this appeal may be summarized as follows. On February 2, 1973, plaintiff commenced an action in trespass by issuance of a summons. Plaintiff's complaint was subsequently filed on March 9, 1973. The last activity on the docket prior to dismissal of the action was on December 17, 1973, when plaintiff was ordered to appear for depositions. On September 23, 1977, plaintiff's action was dismissed with prejudice for failure to prosecute pursuant to Rule 350, now Rule 130, of the Rules of Civil Procedure of the Court of Common Pleas of Philadelphia County (hereinafter "Philadelphia Rule 130"). On June 30, 1978, plaintiff filed a petition for reinstatement, which was denied by the lower court on July 28, 1978. On August 25, 1978, plaintiff filed a petition for reconsideration. The petition for reconsideration was denied on November 22,

[ 286 Pa. Super. Page 5541978]

, but plaintiff was granted leave to file an amended petition. On January 9, 1979, an amended petition for reconsideration was granted and plaintiff's case was reinstated. This appeal followed.

The sole issue presented by this case is whether Philadelphia Rule 130 is in conflict with Rule 236 of the Pennsylvania Rules of Civil Procedure. The court below held that although Philadelphia Rule 130 was not on its face in conflict with Pa.R.C.P. No. 236, the local rule as applied was in fact in conflict with the statewide procedural rule and, therefore, null and void. We disagree.

The local rule in question provides in pertinent part:

Rule 130. Disposition of Inactive Cases

(1) Whenever in any civil action a certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary's Office for a period of two (2) successive years, the action shall be dismissed with prejudice, for failure to prosecute under the provisions of this rule, and the docket so marked, provided that no ...


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