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WILLIAM DONER AND MARYANN DONER v. JOWITT AND RODGERS CO. (05/21/82)

filed: May 21, 1982.

WILLIAM DONER AND MARYANN DONER, H/W, APPELLANTS,
v.
JOWITT AND RODGERS CO.



NO. 1830 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, dated August 6, 1979, at No. 174, April Term, 1979

COUNSEL

Anne E. Fialkowski, Philadelphia, for appellants.

Robert J. Harrington, Philadelphia, for appellee.

Hester, McEwen and Shertz, JJ. Shertz, J., did not participate in the consideration or decision of this case.

Author: Mcewen

[ 299 Pa. Super. Page 494]

We here consider an appeal from an order granting the motion of appellee for judgment on the pleadings after the appellee pleaded the defense of the statute of limitations to a complaint in trespass for personal injuries allegedly suffered nearly ten years prior to the commencement of the instant action.

Appellants, William and Maryann Doner, are husband and wife. The history of the instant suit is inextricably intertwined with a prior suit arising out of the same occurrence and concluded by the entry of a judgment of non pros and, therefore, we must review the procedural history of both the earlier suit and the present litigation in order to be able to consider the issues of this appeal.

William Doner allegedly fell and suffered injuries on January 29, 1969 while on the premises of appellee, Jowitt and Rodgers Co. (hereafter Jowitt and Rodgers). William Doner (but not his wife, Maryann Doner) commenced the original suit, an action in trespass, by filing a summons in trespass on January 20, 1971 and a complaint on February 16, 1971. Jowitt and Rodgers, some three years later, on February 1, 1974, filed interrogatories addressed to William Doner which were neither objected to nor answered. On April 7, 1976, new counsel for Jowitt and Rodgers proceeded under the then valid Philadelphia Civil Rule 145 which, in essence, permitted the entry of a judgment of non pros by the Prothonotary upon completion of the procedure established by Rule 145 if a plaintiff persisted in the failure to file answers to the interrogatories.*fn1

[ 299 Pa. Super. Page 495]

On April 22, 1976, the Prothonotary, pursuant to Rule 145, directed William Doner by interlocutory order to file answers to the outstanding interrogatories within thirty days or suffer a judgment of non pros. Counsel for William Doner twice received thirty day extensions without filing answers. Counsel for Jowitt and Rodgers completed the final procedures under Rule 145 on August 12, 1976 and, as a result, the Prothonotary on that same date, entered a judgment of non pros.

On August 30, 1976, following the refusal of counsel for Jowitt and Rodgers to accept tender by Doner of the answers to the interrogatories, a motion to strike the judgment of non pros was filed by counsel for Doner and, on December 8, 1976, the motion was denied by the Common Pleas Court. William Doner appealed to this Court on January 4, 1977 and presented as the single issue for appeal a contention that the denial by the Common Pleas Court of the motion of William Doner to strike the judgment of non pros constituted an abuse of discretion. This Court affirmed the order of the Common Pleas Court by per curiam order dated November 30, 1977. Doner v. Jowitt and Rodgers Co., 251 Pa. Super. 614, 381 A.2d 905 (1977). The Pennsylvania Supreme Court granted a petition by William Doner for allowance of appeal in which the sole argument expressed was that the refusal to strike the judgment of non pros was error. Chief Justice Michael J. Eagen observed in his Opinion of March 26, 1979 that, while the petition for allowance of appeal filed

[ 299 Pa. Super. Page 496]

    in the Supreme Court advanced only the issue raised in the appeal to the Superior Court, William Doner, in his brief to the Supreme Court and during oral argument, raised as new issues the validity of and the constitutionality of Rule 145. The Court applied the waiver doctrine, stating that "since neither of these issues were raised in the trial court, in the Superior Court, or in the Petition for Allowance of Appeal they have not been preserved for review in this Court," and dismissed the appeal as improvidently granted. Doner v. Jowitt and Rodgers ...


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