Smith v. Swiatkowski

Superior Court of Pennsylvania

Smith v. Swiatkowski

428 A.2d 608, 286 Pa. Super. 133, 1981 Pa. Super. LEXIS 2483

CourtSuperior Court of Pennsylvania

DecidedApril 10, 1981

DocketNo. 2593

StatusPublished

This text of 428 A.2d 608 (Smith v. Swiatkowski) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Swiatkowski, 428 A.2d 608, 286 Pa. Super. 133, 1981 Pa. Super. LEXIS 2483 (Pa. Ct. App. 1981).

Pincite

Opinion

WICKERSHAM, Judge:

On April 22, 1976, Diane Smith, appellant, brought this action in trespass against defendants alleging medical malpractice. After failing to respond to written interrogatories propounded by the defendants to plaintiff, a judgment of non pros was entered January 26, 1977 pursuant to Philadelphia Civil Rule 4005*(d).

On September 9, 1978 a Motion to Strike was filed, nineteen months after the entry of the judgment of non pros by the prothonotary. The lower court dismissed the motion holding that the Motion to Strike was not promptly filed and because the judgment of non pros was entirely regular under the Court rule cited above. An appeal was taken to this court, and while pending, we decided Gonzales v. Pro-caccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979) and Tice v. Nationwide, 284 Pa.Super. 220, 425 A.2d 782 (1981).

Instantly we hold that the prothonotary lacked the power to enter judgment and that the judgment so entered was subject to avoidance. Such a judgment must be stricken, if [135]*135as here, an appeal was pending when Gonzales was handed down.¹

Accordingly, we reverse the order of the lower court, and strike the judgments entered on behalf of appellees.

Free access — add to your briefcase to read the full text and ask questions with AI

WICKERSHAM, Judge:

On April 22, 1976, Diane Smith, appellant, brought this action in trespass against defendants alleging medical malpractice. After failing to respond to written interrogatories propounded by the defendants to plaintiff, a judgment of non pros was entered January 26, 1977 pursuant to Philadelphia Civil Rule 4005*(d).

On September 9, 1978 a Motion to Strike was filed, nineteen months after the entry of the judgment of non pros by the prothonotary. The lower court dismissed the motion holding that the Motion to Strike was not promptly filed and because the judgment of non pros was entirely regular under the Court rule cited above. An appeal was taken to this court, and while pending, we decided Gonzales v. Pro-caccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979) and Tice v. Nationwide, 284 Pa.Super. 220, 425 A.2d 782 (1981).

Instantly we hold that the prothonotary lacked the power to enter judgment and that the judgment so entered was subject to avoidance. Such a judgment must be stricken, if [135]*135as here, an appeal was pending when Gonzales was handed down.¹

Accordingly, we reverse the order of the lower court, and strike the judgments entered on behalf of appellees.

Cite This Page — Counsel Stack

Bluebook (online)

428 A.2d 608, 286 Pa. Super. 133, 1981 Pa. Super. LEXIS 2483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-swiatkowski-pasuperct-1981.

Opinion

Related

Cite This Page — Counsel Stack