Anderson v. United Gas Improvement Co.

49 Pa. D. & C.2d 640, 1970 Pa. Dist. & Cnty. Dec. LEXIS 460

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: July 23, 1970
• Docket: no. 2246
• Status: Published

Opinion

HIRSH, J.,

This case is before the court on a petition and rule seeking to strike a judgment of non pros, granted for failure to file a complaint within 20 days of filing a praecipe for a writ joining additional defendants.

Petitioner contends that the judgment of non pros, was granted even though no rule was ever served upon defendant to file a complaint as rule 1037 of the Pennsylvania Rules of Civil Procedure seems to require.

Additional defendants contend that rule 2252(b) requires the complaint to be filed within 20 days of the filing of the writ and, therefore, obviates the necessity of the filing by the additional defendants of the rule specified in rule 1037.

Although rule 2252(b) does state that the complaint is to be filed within 20 days, no penalty for failure to comply is specified. Rule 2254(d) does specify that if the joinder is commenced by writ, judgment of non pros, may be had in the same manner as in an action of assumpsit, provided for in rule 1037. In view of the specificity of rule 2254(d), we should not read any contradictory provisions into rule 2252(b).

Therefore, July 23, 1970, it is hereby ordered, that the judgment of non pros, in favor of additional defendants, William F. Schmidt and Ella Mae Schmidt, be hereby stricken and defendant, United Gas Improvement Company, be allowed 20 days in which to file a complaint against said additional defendants.