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JAMES WURSTER v. EARL PETERS AND CITY PHILADELPHIA DEFENDANTS AND EDWIN WURSTER (08/19/83)

filed: August 19, 1983.

JAMES WURSTER, PAUL WURSTER AND NELSON HARE, EDWIN A. WURSTER AND GERTRUDE WURSTER
v.
EARL PETERS AND CITY OF PHILADELPHIA DEFENDANTS AND EDWIN WURSTER, PHILLIP MILLER AND CONDUIT AND FOUNDATION COMPANY. APPEAL OF CITY OF PHILADELPHIA



No. 147 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1560 March, 1965

COUNSEL

Thomas A. Sprague, City Solicitor, Philadelphia, for appellant.

Joseph Strimber, Philadelphia, for appellees.

Brosky, Cirillo and Montemuro, JJ. Cirillo, J., files a dissenting opinion.

Author: Brosky

[ 318 Pa. Super. Page 47]

The issue before us in this appeal is whether the lower court erred in vacating a judgment of non pros which had

[ 318 Pa. Super. Page 48]

    been entered in appellant's favor. Because we find that the judgment should not have been removed, we reverse.

Appellees commenced this action by writ of summons on March 19, 1965. They seek damages for personal injuries allegedly suffered in an automobile accident which occurred on January 26, 1964.

A complaint was filed on February 15, 1966. Various pleadings as well as interrogatories were filed between that date and February 4, 1972 when previous counsel withdrew his appearance and new counsel, Joseph Bongiovanni, III, entered his appearance.

On January 20, 1969, appellant, City of Philadelphia, had filed answers to requests for admissions made by an additional defendant. From that date until November 9, 1979, when the action was dismissed, the only apparent activity was the 1972 change of counsel. Nothing else was filed with the Prothonotary.

In August, 1980, appellees' counsel attempted to file a Certificate of Readiness and discovered that the case had been dismissed in November, 1979, pursuant to Philadelphia Rule 350(1).*fn1

On March 12, 1981, new counsel, who entered his appearance for the limited purpose of filing a petition to remove the judgment of non pros, filed such a petition. An amended ...


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