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VERNICE SMITH v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND JAMES E. FOYLE AND ROBERT FOYLE (03/26/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 26, 1982.

VERNICE SMITH, APPELLANT,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND JAMES E. FOYLE AND ROBERT FOYLE, APPELLEES

No. 95 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division of Philadelphia County at No. 5249 July Term, 1973

COUNSEL

Thomas D. Watkins, Philadelphia, for appellant.

Norman Hegge, Jr., Philadelphia, for Southeastern, appellee.

Jeffrey F. Swigart, Philadelphia, for Foyle, appellees.

Beck, Watkins and Hoffman, JJ.

Author: Beck

[ 297 Pa. Super. Page 268]

This is an appeal from the denial of appellant's Petition to Reinstate her Cause of Action. The pertinent facts are as follows. Appellant was injured in a collision on July 25, 1972 between an automobile and a bus in which she was riding. She filed suit on July 31, 1973, and discovery was completed by November, 1974. On September 23, 1977 the action was dismissed pursuant to Philadelphia Local Star Rule 350.*fn1 Subsection 1 of that rule states:

(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 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 less than sixty days' notice be given by the publication once in The Legal Intelligencer.

Subsection 3 of that Rule provides that the action may be reinstated for good cause shown if written application is made within three months of dismissal.

Appellant's counsel filed a Certificate of Readiness and a Major Case Petition in March, 1980 -- more than five years after the completion of discovery. Both were rejected by the Prothonotary because the action had already been dismissed. On October 2, 1980, appellant filed a Petition to Reinstate the Cause of Action. The Court of Common Pleas denied that Petition. It held that appellant's late filing for reinstatement was excused because the Prothonotary failed to provide written notice of the dismissal as required by Pa.R.C.P. 236: "(t)he prothonotary shall immediately give written notice by ordinary mail of the entry of any order,

[ 297 Pa. Super. Page 269]

    decree or judgment . . ."*fn2 But it also held that appellant's failure to prosecute was not reasonably explained or excused and accordingly refused to reinstate the action.*fn3

The lower court centrally relied upon Corcoran v. Fiorentino, 277 Pa. Super. 256, 419 A.2d 759 (1980). That opinion held in part:

Where notice that the case has been dismissed has not been given pursuant to Rule 236, however, the party seeking reinstatement may not learn of the dismissal until after the expiration of the three month period. We therefore conclude that the failure to give Rule 236 notice to plaintiffs in this case excuses their failure to file their application to reinstate within three months of dismissal.

Id., 277 Pa. Super. at 260, 419 A.2d at 761.

But the second part of the Corcoran court's two pronged inquiry was the basis for the result reached by the trial court:

Our inquiry now focuses upon whether "good cause" was shown for reinstating the action pursuant to Philadelphia Rule 350. The requirements for a showing of "good cause" are identical to those for the opening of a judgment of non pros: "'(1) the petition must be timely filed; (2) the reason for the default reasonably explained; and, (3) the facts constituting grounds for the cause of action be alleged.'" International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa. Super. 378, 382,

[ 297 Pa. Super. Page 270378]

A.2d 986, 988 (1977) (quoting Boyles v. Sullivan, 230 Pa. Super. 453, 455, 326 A.2d 440, 442 (1974)).

Id., 277 Pa. Super. at 260-261, 419 A.2d at 761.

The lower court concluded that laches such as in the instant case must be reasonably explained. Mere confusion or consolidation of two cases involving the same client is not sufficient. See International Telephone and Telegraph Corporation v. Philadelphia Electric Co., 250 Pa. Super. 378, 378 A.2d 986 (1977). We agree that the delay was not reasonably explained.

The order of the lower court denying reinstatement of appellant's cause of action is affirmed.


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