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MICHELE IOLE v. WESTERN AUTO SUPPLY COMPANY (05/12/86)

filed: May 12, 1986.

MICHELE IOLE, ADMINISTRATRIX OF THE ESTATE OF MICHAEL IOLE, MICHELE IOLE, FRANK IOLE AND PHIOLMENA IOLE, HIS WIFE
v.
WESTERN AUTO SUPPLY COMPANY, SUMMIT AND JOHN DOE, REPRESENTING ALL THOSE INDIVIDUAL CORPORATIONS AND OTHER ENTITIES THAT PRODUCED MANUFACTURED, DESIGNED, CONSTRUCTED AND/OR ASSEMBLED AND SOLD/OR DISTRIBUTED WIZARD 2 TON CAPACITY JACK STANDS MODEL NUMBER A-5030



Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division at No. GD 83-19752.

COUNSEL

John D. Hendricks, Pittsburgh, for appellants.

Frederick N. Egler, Jr., Pittsburgh, for appellees.

Brosky, Olszewski and Popovich, JJ.

Author: Popovich

[ 352 Pa. Super. Page 530]

This is an appeal from an order in the court below refusing to open or strike a judgment of non pros. We vacate.

On November 22, 1983, the plaintiffs filed a praecipe for summons in trespass and assumpsit against Western Auto Supply Company (hereinafter Western) and Summit, the seller and manufacturer, respectively, of a two-ton jack-stand which allegedly collapsed during use and resulted in the death of one Michael Iole.

By April 11, 1984, counsel for Western had entered his appearance and filed a praecipe with the prothonotary to issue a rule upon the plaintiffs to file a complaint within twenty days from the date of service or suffer a non pros. Receipt of the rule by counsel for the plaintiffs occurred on April 13. A praecipe for judgment of non pros was filed on June 5 and was followed by the entry thereof by the prothonotary for the plaintiffs' failure to file a complaint.

On June 22, counsel for the plaintiffs submitted a petition to open or strike the judgment. In the petition, the plaintiffs alleged that Western's counsel was informed of the ongoing negotiations with Summit to settle the case amicably. In order to accomplish this, the plaintiffs secured an extension until May 31 from counsel for Western. However, "counsel for Plaintiffs was under the understanding that the May 31, 1984 date would not be a final deadline, but an approximate date to review the status of settlement negotiations with Summit." Consequently, the plaintiffs contended, absent any prior notice from Western of its

[ 352 Pa. Super. Page 531]

    intention to seek a non pros -- as was the local custom, a complaint need not have been filed while negotiations with Summit were taking place. To hold otherwise, the plaintiffs urged, would result in a highly inequitable and harsh penalty being imposed upon the petitioners.*fn1

On July 3, Western responded in the form of an answer and new matter. In the answer section, it admitted conversing with counsel for the plaintiffs with regard to the extension, that May 31 was agreed upon as the date certain for the extension, and that if any additional extension were needed counsel for the plaintiffs would "contact" defense counsel. All other allegations were denied or could not be responded to because the defendant was without sufficient knowledge to form a belief as to their truth or falsity.

In the new matter portion of the reply, the defendant averred that the plaintiffs' failure to advise it, as stated in a written communication from the plaintiffs to the defendant dated April 27, 1984, that they were in need of a further extension beyond May 31 ...


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