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ERNEST W. GOLDSBOROUGH v. CITY PHILADELPHIA (12/10/82)

filed: December 10, 1982.

ERNEST W. GOLDSBOROUGH, APPELLANT,
v.
CITY OF PHILADELPHIA, FRANK L. RIZZO, HILLEL S. LEVINSON, JOSEPH WNUKOWSKI, FOSTER ROSER AND THOMAS PICCOLI



NO. 1649 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil, No. 3918, May Term, 1974.

COUNSEL

George J. O'Neill, Philadelphia, for appellant.

Marylouise Darsigny, Philadelphia, for appellees.

Wickersham, McEwen and Popovich, JJ.

Author: Mcewen

[ 309 Pa. Super. Page 348]

We here consider an appeal from an order of the Court of Common Pleas of Philadelphia County which entered a judgment of non pros against the plaintiff and in favor of the defendants. We affirm.

Plaintiff, a former employee of the City of Philadelphia, brought this action as a result of the alleged improper termination of his position as "Prison Program Development Director". Suit was commenced on May 24, 1974, by a writ of summons in trespass and assumpsit. On June 24, 1974, the Prothonotary, upon praecipe of the defendants, entered a rule upon the plaintiff to file a complaint in twenty (20) days or suffer a judgment of non pros. Counsel for defendants on June 27, 1974, granted counsel for plaintiff an extension of sixty (60) days in order to allow the plaintiff time to prepare a complaint. Counsel for plaintiff then served a notice on counsel for defendants that the deposition of each of the individual defendants would be taken on July 8, 1974, "to assist counsel for plaintiff in preparation of a complaint upon all causes of action plaintiff may have against defendants by reason of their acts and omissions in connection with all events, occurrences and transactions leading up to and following the abolition of plaintiff's job with the City of Philadelphia and his 'layoff' resulting therefrom. An additional purpose is the preservation of testimony and other evidence for use at trial as permitted by law." Defendants moved for a protective order contending that the conduct of depositions would be prejudicial to the defendants and that the plaintiff had sufficient information to file a complaint due to the fact that complaints had earlier been filed with both the Pennsylvania Human Relations Commission on July 25, 1973,

[ 309 Pa. Super. Page 349]

    and with the Equal Employment Opportunity Commission on March 19, 1974. The protective order was granted on September 23, 1974, and prohibited plaintiff from scheduling depositions until after responsive pleadings, including a complaint and answer thereto, were filed.

It was not until more than four years had elapsed and the suit was listed for dismissal pursuant to the Philadelphia Common Pleas Court Rule 130 pertaining to the disposition of cases that had been inactive for two years, that plaintiff filed a complaint on December 22, 1978. Defendants filed preliminary objections with a request that the complaint be stricken with prejudice and a judgment of non pros be entered in favor of the defendants.

Plaintiff, in response to the preliminary objections of defendants, filed preliminary objections requesting that the preliminary objections of the defendants be dismissed for the reason that defendants' preliminary objections were filed four days late. Defendants then filed an answer in which they admitted the late filing but alleged that plaintiff never denied their request for an extension of time.

The distinguished Judge Paul Silverstein of the Court of Common Pleas of Philadelphia County issued an Order which: (1) dismissed the preliminary objections of the plaintiff to the preliminary objections of the defendants; (2) granted the preliminary objections of the defendants which sought dismissal of plaintiff's complaint with prejudice; and (3) entered a judgment of non pros against the plaintiff.

The Common Pleas Court properly refused to strike the preliminary objections of the defendants on the basis of a four (4) day delay in the filing of this pleading. Pennsylvania ...


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