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.
D. Keith Melenyzer, Charleroi, for appellants.
William C. Porter, Washington, for appellees.
Brosky, Cirillo and Popovich, JJ.
[ 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 judgment and the court was without power to enter judgment on its own motion." Slavonic, supra, 62 Pa. Commw. at 548, 436 A.2d at 1258.
Slavonic is almost entirely on point here; but can only be persuasive authority as the decisions of the Commonwealth Court are not binding on this Court.
Slavonic itself relied on a Pennsylvania Supreme Court case. Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971). Paulish involved a trial court entering judgment on the pleadings without a motion by one of the parties. The Supreme Court disapproved of this action stating, "A court is without power under . . . Rule 1037(c) . . . ...