Appeal from the Order of the Court of Common Pleas, Civil Division, of Lawrence County at No. 854 of 1981, C.A.
Richard Audino, New Castle, for appellant.
Nancy McRandal, Beaver, for G.C. Murphy, appellee.
Monica Maghrak, Pittsburgh, for Miracle Equip., appellee.
Brosky, Rowley and Popovich, JJ. Rowley, J., concurs in the result.
[ 358 Pa. Super. Page 450]
This is an appeal from the order of the Court of Common Pleas of Lawrence County granting a motion to strike the complaint of the plaintiff/appellant, Jason Lansdowne. We affirm.
The facts are not in dispute and reveal that in October of 1979, the minor-plaintiff fell off a merry-go-round said to have been manufactured by Miracle Equipment Company and located, at the time, in G.C. Murphy Company's New Castle store.
Suit against G.C. Murphy Company and Miracle Equipment Company was commenced on behalf of the minor-plaintiff by his guardian, Debra Lansdowne, by the filing of a praecipe for a writ of summons in October of 1981. The summonses were served on each defendant. Correspondence between counsel for G.C. Murphy Company and the plaintiff's counsel then ensued. The first of the communiques was in the form of a letter dated February 22, 1982 from counsel for the plaintiff advising counsel for G.C.
[ 358 Pa. Super. Page 451]
Murphy Company that further evaluation by medical specialists concerning the extent of his client's injuries and future prognosis were necessary and continuing. When the medical evaluation was received, a copy would be sent to G.C. Murphy Company along with a formal complaint in the matter. However, when no action was forthcoming almost a year later, counsel for G.C. Murphy Company, by letter dated January 25, 1983, requested the filing of a complaint.
With the apparent inaction of the plaintiff, counsel for G.C. Murphy Company again wrote to opposing counsel on June 17, 1983. This time a rule to file a complaint within 20 days of the receipt of the rule was sought, as permitted by Pa.R.Civ.P. 1037(a). Nonetheless, the plaintiff took no action. Counsel for G.C. Murphy Company wrote a second time on August 9, 1983 informing the plaintiff's counsel that he "intend[ed] to take a judgment on this matter within the next 10 days." The return receipt indicated that notice of the intention to seek a judgment of non pros was received on August 11, 1983.
Even with the passage of more than the allowed for 10 days, counsel for G.C. Murphy Company received no response from the plaintiff and, as a result thereof, submitted a "Praecipe For Entry Of Judgment Of Non Pros" to the prothonotary on Friday, September 16, 1983 at 9:29 a.m. Curiously enough, at 2:30 p.m. of the same day, counsel for the plaintiff filed a complaint with the prothonotary.*fn* However, of interest here is the fact that the prothonotary did not ...