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THELMA N. NARDUCCI v. MASON'S DISCOUNT STORE (05/20/88)

decided: May 20, 1988.

THELMA N. NARDUCCI, APPELLEE,
v.
MASON'S DISCOUNT STORE, APPELLANT



Appeal from the Order of the Superior Court Entered on February 12, 1987, at No. 1093 Pittsburgh, 1985, Affirming the Order of the Court of Common Pleas of Erie County, Dated July 26, 1985, at No. 292-A-1979, Civil Division. Pa. Superior Ct. , 525 A.2d 823 (1987)

COUNSEL

John M. Quinn, Jr., Michael S. Jan Janin, Quinn, Gent, Buseck & Leemhuis, Inc., Erie, for appellant.

John P. Garhart, Erie, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Papadakos

[ 518 Pa. Page 96]

OPINION OF THE COURT

This is the appeal of Mason's Discount Store (Appellant) from the memorandum opinion and per curiam order of the Superior Court affirming the order of the Court of Common Pleas of Erie County which granted the petition of Thelma N. Narducci seeking to open a judgment of non pros which had been entered against her by Appellant as a sanction for failure to respond to interrogatories.

Over eleven years ago, on January 25, 1977, Appellee claimed to have suffered injuries from a fall which occurred on the sidewalk in front of Appellant's store. Represented by counsel, Appellee instituted an action against Appellant for the injuries she sustained from the fall by filing a writ of summons in trespass on January 23, 1979. When Appellee had not filed a complaint by July 2, 1979, Appellant caused a rule to be served on Appellee to file a complaint or suffer a judgment of non pros. The rule was made absolute on November 26, 1979, and Appellee was ordered to file a complaint. Pursuant to that order, depositions of the parties were scheduled for January 8, 1980, at which time counsel for the parties discussed the filing of the complaint and Appellant's counsel indicated that he would take no further action until he heard from Appellee's counsel.

[ 518 Pa. Page 97]

When no complaint was filed by November 8, 1980, however, Appellant directed the Prothonotary of Erie County to enter a judgment of non pros in the matter. Nearly one month later, on December 5, 1980, Appellee filed a petition seeking to open the judgment of non pros. After argument and review of briefs, the trial judge granted the petition and opened the judgment of non pros on March 8, 1982, and again ordered Appellee to file a complaint. During the latter part of 1982, Appellee's counsel gave up the practice of law and referred this matter to Attorney T. Dana Andrews who prepared and filed a complaint on January 14, 1983. The filing of the complaint occurred nearly ten months after leave was granted by the Court and nearly six years after the underlying accident occurred.

On February 10, 1983, Appellant directed Appellee to respond to various interrogatories which were necessary so that an answer could be prepared. New counsel was requested on numerous occasions to respond to the interrogatories and he did not. An order of court was obtained which directed that answers be filed or a second non pros would be entered. When inadequate answers were provided to the interrogatories, an order was entered on October 25, 1983, by the Honorable Jess S. Jiuliante, Jr. of the Court of Common Pleas of Erie County, entering a judgment of non pros, for the second time, against Appellee and dismissing the complaint with prejudice.

Some seventeen months later, on March 11, 1985, Appellee filed a petition to open which was granted on July 26, 1985, and the judgment of non pros was vacated.

An appeal was taken to the Superior Court which affirmed the trial court's opening of the judgment of non pros in an unpublished opinion, 364 Pa. Super. 655, 525 A.2d 823. Appellant then filed a petition for allowance of appeal to this Court and argued that the trial court and the Superior Court improperly applied the equitable considerations which ...


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