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WALTER M. OSTTOWSKI v. JOSEPH A. SMITH AND BLUE COMET EXPRESS (06/17/83)

filed: June 17, 1983.

WALTER M. OSTTOWSKI, JR.
v.
JOSEPH A. SMITH AND BLUE COMET EXPRESS, INC., APPELLANTS



No. 3128 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1109 July Term 1976.

COUNSEL

Charles W. Craven, Philadelphia, for appellants.

George F. Schoener, Jr., Philadelphia, for appellee.

Cavanaugh, Rowley and Hoffman, JJ. Cavanaugh, J., files a concurring opinion.

Author: Hoffman

[ 315 Pa. Super. Page 323]

Appellants contend that the lower court erred in striking the judgment of non pros entered against appellee for failure to answer interrogatories. We agree and, accordingly, reverse the order of the lower court and reinstate the judgment.

[ 315 Pa. Super. Page 324]

In July, 1976, twenty-three months after a motor vehicle accident, appellee filed an action in trespass against appellants. Appellants' counsel sent copies of interrogatories to appellee's counsel in November, 1976 but received no response. In late December, appellants' counsel again requested answers, to no avail, and notified appellee's counsel on January 21, 1977, that if answers were not forthcoming, action would be taken to file a praecipe and interlocutory order for sanctions pursuant to Philadelphia Civil Rule 4005(d).*fn1 On March 18, 1977, the prothonotary entered an interlocutory order directing appellee to answer appellants' interrogatories within thirty days. When appellee did not comply, appellants' newly retained counsel filed a Supplemental Praecipe for Final Judgment of Non Pros and a Notice of Judgment and the prothonotary entered judgment on June 20, 1977. In May, 1979, appellee retained new counsel and brought a legal malpractice action against his original attorney; that case is still pending. In July, 1981, the lower court granted appellee's petition to strike the judgment of June 20, 1977, prompting this appeal.

A motion to strike a judgment will be granted only if a defect exists on the face of the record. Samango v. Hobbs, 167 Pa. Superior Ct. 399, 401, 75 A.2d 17, 19 (1950), quoting Johnson v. Royal Insurance Co. of Liverpool, 218 Pa. 423, 67 A. 749 (1907). The judgment here is defective because Rule 4005(d), empowering the prothonotary to enter judgment was held to conflict with Pa.R.Civ.P. 4019, vesting discretion in the courts to determine appropriate sanctions for failure to respond to interrogatories. Gonzales v. Procaccio Bros., 268 Pa. Superior Ct. 245, 407 A.2d 1338 (1979). In invalidating the local rule, the Gonzales Court held that the need to fit the punishment to the crime dictated the exercise of judicial discretion. Id., 268 Pa. Superior at 252, 407 A.2d at 1341-42.

In Tice v. Nationwide Life Insurance Co., 284 Pa. Superior Ct. 220, 425 A.2d 782 (1981) (Tice II) we concluded

[ 315 Pa. Super. Page 325]

    that a judgment of non pros, entered under the invalid rule, "must be stricken, if as here, an appeal was pending when Gonzales was handed down." Id., 268 Pa. Superior at 227, 425 A.2d at 786. We are now faced with the question of whether to strike the judgment as void where the motion was not filed until after the Gonzales decision.*fn2 We find that a rule declaring all such judgments void would be inappropriate, causing parties in whose favor the judgment was entered to be forever potentially subject to motions to strike. See Samango v. Hobbs, supra (void judgments are always subject to motions to strike and laches does not run against them). We hold these particular judgments more closely akin to defective, voidable judgments, and thus subject to motions to strike dependent upon considerations inherent in each situation. See Washington v. Liberi, 273 Pa. Superior Ct. 48, 49-51, 416 A.2d 1082, 1083 (1979) (Gonzales not applied retroactively) (footnote omitted).

Voidable judgments, occuring where there is an irregularity or defect on the face of the record, must be challenged by a motion to strike within a reasonable time. Triangle Building Supply & Lumber Co. v. Zerman, 242 Pa. Superior Ct. 315, 363 A.2d 1287 (1976) (seven year delay unreasonable both for a motion to strike and a petition to open judgment); Eastman Kodak Co. v. Osenider, 127 Pa. Superior Ct. 332, 193 A. 284 (1937) (nine year delay unreasonable for motion to strike a judgment). Justice v. Meeker, 30 Pa. Superior Ct. 207, 210 (1906) ("where defects complained of are irregularities only, not jurisdictional in nature, although they ...


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