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MARY I. CHAMBERLAIN v. ALTOONA HOSPITAL (12/04/89)

filed: December 4, 1989.

MARY I. CHAMBERLAIN, ADMINISTRATRIX OF THE ESTATE OF JAMES E. ZIMMERMAN, DECEASED, APPELLANT,
v.
ALTOONA HOSPITAL, JAMIE MONTANEZ, M.D. AND MUTHU VERRAPPAN, M.D.



Appeal from the Orders entered in the Court of Common Pleas of Blair County, Civil Division, No. 291 CP 1987.

COUNSEL

Michele H. Lally, Pittsburgh, for appellant.

Edward T.J. Grabowski, Hollidaysburg, for Altoona, appellee.

Gregory S. Olsavick, Altoona, for Montanez and Verrappan, appellees.

Cirillo, President Judge, and Brosky and Tamilia, JJ.

Author: Tamilia

[ 389 Pa. Super. Page 601]

This is an appeal from the June 28, 1988 Order of court, docketed June 30, 1988, denying appellant's petition to strike/open a judgment of non pros. Appellant filed her original complaint on March 30, 1987. On June 8, 1987, appellee Jamie Montanez, M.D., filed preliminary objections to the complaint, in the form of a motion to strike and/or compel a more specific complaint. The court granted the motion on September 25, 1987,*fn1 and directed appellant to file a more specific complaint within twenty (20) days of the Order. The Order did not contain any specific threatened

[ 389 Pa. Super. Page 602]

    sanction for noncompliance, such as dismissal of appellant's action.

On October 19, 1987, appellee Montanez, upon appellant's noncompliance with the above Order, obtained a non pros judgment against appellant. Appellee did not obtain the non pros judgment upon motion to the court. Rather, he obtained it by a praecipe filed with the prothonotary for "failure to file the amended complaint on or before October 15, 1987, in accordance with the . . . Order of Court." Appellee attached a certificate of service, certifying appellant's counsel had been served with the praecipe. Appellant filed an amended complaint on October 22, 1987, three days after the prothonotary accepted the praecipe for non pros. The prothonotary accepted appellant's amended complaint, nonetheless. On October 30, 1987, appellee Montanez filed a motion to strike the amended complaint, citing the previous entry of non pros as a bar to the complaint's filing, and requesting dismissal of the complaint in its entirety.

The litigation proceeded, and not until June 16, 1988 did the court hold the prothonotary had correctly entered non pros. On that basis, the court dismissed the amended complaint as to appellee Montanez only. On June 27, 1988, appellant filed the petition to strike/open. The court denied the petition without a hearing, and this appeal followed.

Appellant first questions the authority of the prothonotary to enter non pros upon praecipe under the present circumstances. The prothonotary performs a ministerial function which includes administering oaths, affixing court seals to records, entering judgments on the docket and exercising such other powers and duties "as may . . . be invested in or imposed upon the office by law, home rule charter, order or rule of court, or ordinance . . ." See 42 Pa.C.S. ยง 2737; Fox v. Gabler, 282 Pa. Super. 490, 423 A.2d 351 (1981). His power therefore comes not from his office but from the instrument under which he acts. Smith v. Safeguard ...


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