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MARGARET STORM v. W. BRIAN GOLDEN (01/30/85)

filed: January 30, 1985.

MARGARET STORM
v.
W. BRIAN GOLDEN, APPELLANT



No. 3330 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Monroe County at No. 1513-1981.

COUNSEL

Susan Danielski, Philadelphia, for appellant.

Edwin Krawitz, East Stroudsburg, for appellee.

Wickersham, Wieand and Lipez, JJ. Wieand, J., files a concurring statement. Lipez, J., concurs in the result.

Author: Wickersham

[ 338 Pa. Super. Page 572]

In this case, W. Brian Golden appeals from the Order of the Court of Common Pleas of Monroe County granting the petition of Margaret H. Storm, appellee herein, to open a judgment of non pros. We affirm.

In June of 1981, Margaret H. Storm filed and served on W. Brian Golden a summons in trespass. By letter dated

[ 338 Pa. Super. Page 573]

December 3, 1981, counsel for Golden sent to Storm's counsel a copy of his entry of appearance and a copy of a praecipe for rule to file a complaint. This praecipe was filed on December 7, 1981 and the rule issued on the same day. The rule, however, was never served on Storm or her counsel.

Appellant Golden was deposed on February 18, 1982. By letter dated February 19, 1982, Golden's counsel requested Storm's counsel to file a complaint within ten (10) days or suffer a non pros pursuant to the rule issued earlier. On February 24, 1982, Storm's attorney responded by stating that he had never been served with a rule to file a complaint. In the same letter, Storm's counsel requested a thirty (30) day extension of time in which to file a complaint. As a result of appellee's continued failure to file a complaint, appellant filed a praecipe for the entry of judgment of non pros on March 31, 1982 and the prothonotary entered judgment of non pros on the same day. Also on the same day, appellee Storm filed her complaint in trespass.

On April 2, 1982, Storm's counsel sent a letter to Golden's counsel reiterating the fact that he had never been served with a rule to file a complaint and setting forth his contention that, therefore, the judgment of non pros could not be properly entered. He further suggested that Golden's counsel ignore the allegedly improperly-entered judgment and accept service of the complaint. On April 15, 1982, Golden filed preliminary objections to Storm's complaint contending that the filing of a complaint in an action in which a judgment of non pros had been entered in favor of the defendant was contrary to law. Storm filed an answer to the preliminary objections on May 25, 1982. On July 23, 1982, Golden filed a memorandum of law in support of his preliminary objections. Storm filed a petition to open the judgment of non pros on July 27, 1982. The lower court heard arguments as to Storm's petition to open judgment and, on November 12, 1982, issued an opinion and order granting the petition. This appeal timely followed.

Appellant raises the following issues ...


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