No. 457 Pittsburgh, 1981, Appeal from the Oder of the Court of Common Pleas, Civil Division, Allegheny County, No. GD81-02439 In Equity.
Howard T. Gilfillan, Pittsburgh, for appellant.
Stephen Laidhold, Pittsburgh, for appellee.
Wieand, Johnson and Montemuro, JJ. Wieand, J., files dissenting opinion.
[ 298 Pa. Super. Page 455]
The instant matter was begun by complaint in equity on April 21, 1975. There was activity on the docket until March of 1976. When the plaintiff-appellant filed notice of deposition
[ 298 Pa. Super. Page 456]
in March of 1978, on a date slightly beyond the two-year period of inactivity provided for termination of cases under Local Rule 229(e), defendant-appellee filed a petition to strike requesting that the case be dismissed pursuant to that rule.
The appellant did not petition either for reactivation of the 1975 complaint or for permission to bring a second action. Such a petition would have been required to allege that: (1) the petition was timely filed; (2) the reason for the default was reasonably excused; (3) facts constituting a meritorious cause of action were alleged. International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa. Super. 378, 378 A.2d 986 (1977).
Instead, appellant simply began another action under another court term and number on January 29, 1981. The appellee filed preliminary objections, which were sustained, and the second complaint was dismissed by Order of March 24, 1981.
The various arguments appellant advances in refutation of the lower court's action in dismissing the instant complaint all resolve themselves into a simple misunderstanding of the statutory language. Appellant bases his argument on wording in Thompson v. Cortese, 41 Pa. Commw. 174, 182, 398 A.2d 1079, 1083 (1979) and lists as an "accord" the case of Commonwealth Department of Public Welfare v. Flowers, 46 Pa. Commw. 326, 407 A.2d 896 (1979). Examination of the phrase as set forth in those two cases easily solves the problem posited. Thompson's version is as follows:
However, if a plaintiff's stale claim is dismissed, he may still petition the court to take off the non pros or bring a second action regardless of whether or not a formal entry of judgment has ...