Osttowski v. Smith
Osttowski v. Smith
Opinion of the Court
Appellants contend that the lower court erred in striking the judgment of non pros entered against appellee for failure to answer interrogatories. We agree and, accordingly, reverse the order of the lower court and reinstate the judgment.
A motion to strike a judgment will be granted only if a defect exists on the face of the record. Samango v. Hobbs, 167 Pa.Superior Ct. 399, 401, 75 A.2d 17, 19 (1950), quoting Johnson v. Royal Insurance Co. of Liverpool, 218 Pa. 423, 67 A. 749 (1907). The judgment here is defective because Rule 4005*(d), empowering the prothonotary to enter judgment was held to conflict with Pa.R.Civ.P. 4019, vesting discretion in the courts to determine appropriate sanctions for failure to respond to interrogatories. Gonzales v. Procaccio Bros., 268 Pa.Superior Ct. 245, 407 A.2d 1338 (1979). In invalidating the local rule, the Gonzales Court held that the need to fit the punishment to the crime dictated the exercise of judicial discretion. Id., 268 Pa.Superior at 252, 407 A.2d at 1341-42.
In Tice v. Nationwide Life Insurance Co., 284 Pa. Superior Ct. 220, 425 A.2d 782 (1981) (Tice II) we concluded
Voidable judgments, occuring where there is an irregularity or defect on the face of the record, must be challenged by a motion to strike within a reasonable time. Triangle Building Supply & Lumber Co. v. Zerman, 242 Pa.Superior Ct. 315, 363 A.2d 1287 (1976) (seven year delay unreasonable both for a motion to strike and a petition to open judgment); Eastman Kodak Co. v. Osenider, 127 Pa.Superior Ct. 332, 193 A. 284 (1937) (nine year delay unreasonable for motion to strike a judgment). Justice v. Meeker, 30 Pa.Superior Ct. 207, 210 (1906) (“where defects complained of are irregularities only, not jurisdictional in nature, although they may have been sufficient to cause the judgment to be set aside, if proper diligence had been used the defendant, having permitted a judgment to stand un
Applying these considerations to the instant case, we must conclude that the lower court erred in striking the judgment. Judgment was entered in June, 1977. In July, 1979, Gonzales was decided, alerting the bar to the invalidity of Rule 4005*(d). Despite this, appellee did not file his motion to strike until July, 1981, two years after Gonzales,
Appellee claims also that the judgment should be stricken because he did not receive an executed copy of the Prothonotary’s interlocutory order.
We find that the lower court incorrectly struck the judgment of non pros and, accordingly, order its reinstatement.
Reversed.
. Philadelphia Civil Rule 4005*(d) was retitled Philadelphia Civil Rule 145.
. Other decisions of our Court, following Gonzales, have not presented the issue directly before us. Pavone v. Anthony, 273 Pa.Superior Ct. 376, 417 A.2d 697 (1980), holding that Gonzales dictated the judgment entered pursuant to 4005*(d) be struck, was pending on appeal when Gonzales was decided. Graham v. Kutler, 275 Pa.Superior Ct. 188, 418 A.2d 676 (1980) struck a judgment entered pursuant to the invalid rule because appellants had not been served with the proper interlocutory order required in Strickler v. United Elevator Co., 248 Pa.Superior Ct. 258, 375 A.2d 86 (1977).
. We note that appellee's motion to strike was filed a mere five months after the Tice II decision, leading us to believe that appellee sat on his right until the probability of success appeared ripe. This is no excuse, however, for the unreasonable delay in failing to bring the motion to strike the judgment until four years after its entry.
. The considerations dictating this result are analagous to the policies embodied in the two-year personal injury statute of limitations: (1) that rights should be enforced and wrongs redressed without unreasonable delay; (2) that defendants should be spared the prejudice and
. The lower court failed to address this issue, striking the judgment on the basis of the Tice II decision.
Concurring Opinion
concurring:
I agree that the order striking the judgment of non pros entered against appellee should be reversed and the judgment reinstated. Unlike the majority, however, I would not base the decision on a determination of whether the judgment was “void” or “voidable.” Instead, I would adopt the view of the Restatement (Second) of Judgments, as advocated by Judge Spaeth in his Concurring Opinion in Tice v. Nationwide Life Insurance Co., 284 Pa.Super. 220, 425 A.2d 782 (1982) (Tice II).
Under the present circumstances, I would conclude, as does the majority, that the judgment of non pros should not be stricken since appellee did not file his motion to strike until two years after Gonzales was filed and more than four years after entry of the judgment, and the appellants “have relied on this judgment which was entered only after repeated unsuccessful attempts at discovery.” (Majority opinion at 5). I would hold, therefore, that even though the judgment entered in this case is “invalid,” appellee should not be permitted to have it stricken at this late date.
. Tice II was heard by a seven member court en banc. The lead opinion had three votes, as did Judge Spaeth’s concurring opinion. The present writer dissented on a different ground and did not reach the issue herein. However, I later cited the Spaeth analysis with approval in Bethlehem Steel Corporation v. Tri-State Industries, 290 Pa.Super. 461, 434 A.2d 1236 (1981).
Reference
- Full Case Name
- Walter M. OSTTOWSKI, Jr. v. Joseph A. SMITH and Blue Comet Express, Inc., Appellants
- Cited By
- 5 cases
- Status
- Published