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WILLIAM J. MOORE AND JEANNETTE P. MOORE v. GEORGE HEEBNER (11/18/83)

filed: November 18, 1983.

WILLIAM J. MOORE AND JEANNETTE P. MOORE, PETER PAIGE AND SHIRLEY PAIGE, JOHN THOMPSON AND NETTIE THOMPSON, THEODORE ANDREWS AND DORIS ANDREWS, WILLIAM LAMISON AND CLARA LAMISON, ALLAN BAILEY AND CAROLINE BAILEY, APPELLANTS,
v.
GEORGE HEEBNER, INC., HEEBNER CONSTRUCTION CO., RUSSELL H. RICHARDSON, ALBERT E. RICHARDSON AND DELAWARE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY



No. 166 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division, No. 73-1894.

COUNSEL

James P. Gannon, Media, for appellants.

Owen W. Nash, Media, for Heebner, etc., appellees.

Mary Kathleen Eads, Media, for Richardson, appellees.

George J. McConchie, Media, for Delaware, appellee.

Hester, Brosky and Beck, JJ.

Author: Brosky

[ 321 Pa. Super. Page 228]

This appeal is from a non pros or dismissal for failure to prosecute. Consequently, appellant raises only one issue: whether that non pros was properly granted. Upon consideration we conclude that it was and, accordingly, affirm.

Procedural History

The relevant procedural history is as follows. Appellant brought suit in February of 1973. Appellee Richardson filed an answer in April of 1973. On October 21, 1976 appellant's first counsel withdrew his appearance. Appellee Richardson filed an amended answer in February, 1977. Preliminary objections were filed by appellee Delaware County Industrial Development Authority (D.C.I.D.A.) on April 12, 1977, followed by Supplemental Preliminary Objections on the next day. On July 7, 1977 appellant's second counsel withdrew his appearance. The next action in the case was more than three years later. On August 28, 1980 appellant filed a petition for extension of time within which to file a certificate of readiness. Appellee D.C.I.D.A. filed an answer to that petition on October 1, 1980 and appellee Richardson filed a motion to dismiss on the fifteenth of that month. An order extending the time to file a certificate of readiness until November 30, 1980 was filed twelve days earlier. Such a certificate was filed on December 9, 1980. Again there are no docket entries until appellant's counsel entered her appearance on August 21, 1981. Around this time a conference was held at which the Court indicated it was going to dismiss the Complaint for failure to prosecute. This was not filed, however. Notwithstanding this, a petition for reconsideration was filed and, on November 16, 1981, dismissed. This appeal followed.

Standard of Review and Test

At the outset it is necessary to note the applicable standard of appellate review.

It is well settled law that the question of granting a non pros. because of the failure of ...


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