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PHILLIP A. SPORKIN v. HENRY J. AFFINITO AND DAVID MEYERS (04/13/84)

filed: April 13, 1984.

PHILLIP A. SPORKIN
v.
HENRY J. AFFINITO AND DAVID MEYERS, APPELLANTS



No. 1269 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 75-2698.

COUNSEL

Jeffrey L. Pettit, Philadelphia, for appellants.

S. Lawrence Pauker, Norristown, for appellee.

Montemuro, Watkins and Hoffman, JJ.

Author: Hoffman

[ 326 Pa. Super. Page 483]

Appellants challenge the lower court's entering judgment in favor of appellee, alleging that appellee's action had been properly dismissed pursuant to Montgomery County Civil Rule 407. We find no merit in this contention and, accordingly, affirm the order entered below.

The underlying action to this appeal concerns appellee's February, 1975 claim that appellants, his fellow shareholders in a corporation formed to establish a Puerto Rican water ice business, had attempted to sever him from the business and deprive him of profits. Following the denial of appellants' preliminary objections and argument on November 9, 1976, the lower court granted appellee's motion for the production of certain documents within 45 days. On June 7, 1978, because appellants had failed to produce the documents, appellee filed a motion for sanctions against appellants requesting the court to enter a judgment of liability and to direct a trial solely on the issue of damages for failure to produce the requested documents. In late

[ 326 Pa. Super. Page 484]

August, 1980, an application for an extension of time to file a praecipe for trial was signed by the lower court and counsel, extending the time for trial until February 28, 1981. In early February, 1981, appellee prepared, but appellants' counsel failed to sign, a praecipe to place the case on a trial list. Appellee's brief supporting his motion for sanctions was filed on February 10, 1981. On March 6, 1981, however, pursuant to Montgomery County Civil Rule 407, the prothonotary summarily dismissed the action, after having received no praecipe for trial. Despite this dismissal, of which counsel and the lower court were not aware, and subsequent to oral argument, the lower court, on April 15, 1981, granted appellee's motion for sanctions, entering a default judgment against appellants and directing a trial for the determination of damages. In late October, 1981, appellee's counsel learned of the prothonotary's dismissal and requested the lower court to strike the dismissal from the docket. On November 12, 1981, the lower court struck the docket entry, but, in response to appellants' protests, entertained petitions and argument on the validity of the March 6 dismissal. On March 24, 1982, the lower court affirmed its November 12, 1981 order striking the dismissal from the docket, prompting this appeal.*fn1

Appellant contends first that Montgomery County Civil Rule 407 did not conflict with the Pennsylvania Supreme Court's November 19, 1979 order*fn2 and therefore, that the March 6, 1981 dismissal by the prothonotary was valid. We disagree. On November 19, 1979, the Supreme Court ordered, in pertinent part that:

I. Prompt Certification for Trial

(a) In all civil actions commenced on or before December 31, 1979, any and all documents required to signify that the case is ready for trial must be filed on or before August ...


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