Pavone v. Anthony

273 Pa. Superior Ct. 376 (1980)

417 A.2d 697

Anthony PAVONE and Natalie Pavone, his wife v. Fred ANTHONY and Evelyn Anthony, and City of Philadelphia. Appeal of Fred ANTHONY and Evelyn Anthony.

Superior Court of Pennsylvania.

Argued June 20, 1979.

Filed January 4, 1980.

Joseph Litt, Philadelphia, for appellants.

Aloysius J. Staud, Philadelphia, for appellees.

*377 Before HESTER, HOFFMAN and CATANIA, JJ.[*]

HESTER, Judge:

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County denying appellants motions to strike a judgment.

Appellants failed to answer interrogatories for more than 2½ years. Pursuant to Philadelphia County Local Rule 4005(d) appellees praeciped the prothonotary to enter judgment on liability in their behalf. Five months after judgment was entered by the prothonotary, appellant moved to strike the judgment. The motion was denied and this appeal followed.

We held recently in Gonzales v. Procaccio Bros., 268 Pa. Super. 245, 407 A.2d 1338 (1979) (per Judge Wieand) that Philadelphia Local Rule 145 (formerly 4005) was invalid because it conflicted with Pa.R.C.P. 4019. In that case we struck a judgment entered under the invalid rule.

The judgment entered here must also be stricken since it likewise was taken under the now invalid rule.

We, therefore, reverse the Order of the lower court and strike the judgment entered on behalf of appellees.

[*] President Judge Francis J. Catania of the Court of Common Pleas of Delaware County, Pennsylvania, is sitting by designation.