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GEORGE HATALOWICH AND AUDRY C. HATALOWICH v. KATE BEDNARSKI (06/17/83)

filed: June 17, 1983.

GEORGE HATALOWICH AND AUDRY C. HATALOWICH, HIS WIFE, APPELLANTS,
v.
KATE BEDNARSKI, E. RICHARD BEDNARSKI AND DELORES J. BEDNARSKI, HIS WIFE, EDWARD E. OLESH, KENNETH R. STRAWBERRY AND EDWIN G. WARMAN, INDIVIDUALLY, EDWARD E. OLESH, KENNETH R. STRAWBERRY, AND EDWIN G. WARMAN, T/D/B/A W.P.Q.R.-F.M., W.P.Q.R.-F.M., AN UNREGISTERED FICTITIOUSLY NAMED ENTERPRISE, WARMAN BROADCASTING COMPANY, INC., A CORP., AND TOM HUNCHUCK, A/K/A THOMAS HUNCHUCK, INDIVIDUALLY AND TOM HUNCHUCK A/K/A THOMAS HUNCHUCK AS EMPLOYEE AND SERVANT OF EDWARD E. OLESH, KENNETH R. STRAWBERRY, AND EDWIN G. WARMAN, INDIVIDUALLY OR EDWARD E. OLESH, KENNETH R. STRAWBERRY, AND EDWIN G. WARMAN, T/D/B/A W.P.Q.R.-F.M. OR W.P.Q.R.-F.M., AN UNREGISTERED FICTITIOUSLY NAMED BUSINESS ENTERPRISE, OR WARMAN BROADCASTING CO., INC., A CORP.



No. 636 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Washington County, Civil Division, at No. 415 July Term, 1975 A.D.

COUNSEL

D. Keith Melenyzer, Charleroi, for appellants.

William C. Porter, Washington, for appellees.

Brosky, Cirillo and Popovich, JJ.

Author: Brosky

[ 315 Pa. Super. Page 304]

This appeal is from a Non Pros. issued by the Court of Common Pleas in Washington County. Appellant argues, inter alia, that a trial court lacks the authority to enter an order of Non Pros. sua sponte. We agree that this is the law; but it is not clear that any such motion was made. Therefore, we remand, under Pa.R.A.P. 1926, for a determination to be made as to whether or not a motion was made.

Without ever going to trial, this case has been in the courts for six years; including a period of total inactivity of more than two years. Under circumstances that would seem to clearly justify it, if a motion had been made, the trial judge declared a Non Pros.

The granting of a Non Pros. by a judge is governed by Pa.R.Civ.P. 1037(c). "In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission." For our purposes, the pertinent language is "on motion of a party." Thus, on its face,

[ 315 Pa. Super. Page 305]

    the Rule appears to prohibit a judge issuing a Non Pros. on his own motion.

This interpretation of Rule 1037(c) was employed by Commonwealth Court only last year. Matter of Slavonic Literary Ass'n, 62 Pa. Commw. 546, 436 A.2d 1257 (1981). In that case, Slavonic was appealing a revocation of its liquor license to the Court of Common Pleas. The case was continued three times over 14 months at the request of appellee, the Liquor Control Board. The Common Pleas judge then reversed the revocation due to these delays. In the opinion of the Court, Judge Rogers stated, "there was no motion for ...


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