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GWENDOLYN SMITH v. JAMES C. GIUFFRE MEDICAL CENTER AND DR. QADAR KHAN. APPEAL JAMES C. GIUFFRE MEDICAL CENTER (08/03/87)

filed: August 3, 1987.

GWENDOLYN SMITH, ADMX. OF THE ESTATE OF HER FATHER WILLIE MCKINZIE, DEC'D
v.
JAMES C. GIUFFRE MEDICAL CENTER AND DR. QADAR KHAN. APPEAL OF JAMES C. GIUFFRE MEDICAL CENTER



Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 3105 March Term 1983

COUNSEL

William E. Rapp, Philadelphia, for appellant.

John M. Toscano, Philadelphia, for Smith, appellee.

Sheryl N. Coplan, Assistant City Solicitor, Philadelphia, for Khan, appellee.

Cavanaugh, Olszewski and Tamilia, JJ.

Author: Tamilia

[ 366 Pa. Super. Page 322]

Appellee, as administratrix of the estate of her father, instituted a medical malpractice action against James Guiffre Medical Center and Dr. Qadar Kahn. On March 30, 1984, following a petition by appellant, Guiffre, an Order was issued directing that appellee "appear for depositions,

[ 366 Pa. Super. Page 323]

    at the office of said defendant's counsel, upon due notice thereof, within twenty (20) days of the date of this Order, or appropriate sanctions will be imposed upon application to the Court." (Order by Greenburg, J., filed April 4, 1984.)

When appellee did not appear for deposition, appellant Giuffre, later joined by Dr. Khan, filed a motion for sanctions requesting the court to enter a judgment of non pros in their favor. Appellee did not respond to the motion, and on January 11, 1985, the court issued an Order directing judgment of non pros be entered against appellee for failure to appear for depositions as directed by the Order of March 30, 1984. On January 30, 1985, appellee filed a petition to vacate the non pros and on July 3, 1985, the Order presently appealed from, was entered granting the petition to vacate.

Appellant/Giuffre contends the court erred, asserting appellee failed to sustain her burden of proof on factual issues raised by the response to the petition to open. Specifically, it is argued that appellee did not reasonably explain the failure to respond to the Motion for Sanctions. We need not consider the merits of this argument, however, in that we have determined that the trial court was without jurisdiction to vacate its non pros Order in the first instance. See 42 Pa.C.S. ยง 5505.*fn1

There appears to be a procedural disparity concerning appeals from judgments of non pros. The Court has dealt with such appeals in two different manners: (1) a direct appeal from the entry of judgment on non pros; and (2) an appeal from a motion to remove, strike or open a judgment of non pros. In the case of Erie Human Relations Commission v. Erie ...


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