*2 BROSKY, Bеfore MONTEMURO, CIRILLO and JJ. BROSKY, Judge: issue before us this appeal is whether the lower
court erred in vacating judgment of non pros which had been entered in favor. appellant’s Because find that we removed, judgment should not have been we reverse. Appellees by commenced this action writ of summons on March They damages 1965. seek for personal injuries allegedly suffered in automobile an accident which occurred on January 1964.
A complaint February 15, was filed on 1966. Various pleadings as as interrogatories well were filed between that February 4, date and previous when counsel withdrew counsel, his appearance Joseph and new Bongiovanni, III, entered his appearance.
On January appellant, City of Philadelphia, had filed to rеquests answers admissions made an addi- tional defendant. From that date until November dismissed, when the action only apparent activity was the change of counsel. Nothing else was filed *3 with the Prothonotary. August, 1980,
In appellees’ attempted counsel to file a Certificаte of Readiness and discovered that the case had November, 1979, been in dismissed pursuant Philadelphia to SSOil).1 Rule
On counsel, March appear- new who entered his ance for the limited of purpose a petition to remove the judgment of non pros, petition. filed such a An amend- ed petition granted and appeal this followed.
The criteria which must be met if of judgment non pros tois be were in explained removed Papo Faulks v. provides part: 1. The rule in relevant (1) any Whenever in civil action a Certificate of Readiness has proceedings not been filed and no have been docketed in the Prothonotary’s years, Office for a of two successive action shall prejudice, prosecute, be dismissed with for failure to rule, marked, provisions provid- under this the docket so sixty (60) days’ ed that no given by publication less than notice be Legal Intelligencer. once (3) (1) (2) subject right any Dismissal under or is party application reinstate the good action written cause shown (3) after such dismissal within three months of the date of dismiss- 15, 1973, (Adopted February al. immediately.) effective
49 Inc., Bar., Pa.Super. 454, 456, 280 421 A.2d as follows:
Reinstatement of a is cause action authorized under Philadelphia 350(3) Rule replacement 1047A and its rule “for good Repeated cause shown”. decisions of this Supreme Court and the of Pennsylvania Court have estab- lished “good that cause shown” requires satisfactory of three proof positions, Sullivan, stated Boyles v. Pa.Super. (1974) 326 A.2d to be as follows:
“The criteria for opening a of non pros are: (1) petition filed; (2) must timely be the reason for the default reasonably explained excused; and, (3) or the facts constituting grounds cause of action alleged.” (Citations omitted.) The lower court found that the petition been timely had filed because neither appellees any nor of their attorneys had received notice of the dismissal. requires Pa.R.C.P. 236 that notice of judgment by regular be sent mail to party each or the party’s attorney of record. Although the docket entriеs indicate that notice pursuant Pa.R.C.P. 236 sent, had been the lower court found that notice had not been received based on affidavits from the attorneys.
There is apparently question as to who was counsel of record in 1979. Mr. Bongiovanni that he had says with- drawn his appearance in 1974 at which time Louis Katz entered his appearance. not, however, The docket does reflect change. The lower court seems to have conclud- *4 ed that the changes of attorney comрlicated receipt of notice in this case and justified therefore the of the petition to remove the judgment 16 months after it was entered, rather than within the 3 months prescribed by Rule 350(3).
In Stringer 551, 557, 558, v. 286 Kaytes, Pa.Super. 429 660, A.2d held, 663 “In we those cases ... where the requisite nоtice has not been provided, we believe the most procedure reasonable is to decide the question of the of promptness petition the on the basis of the date when the 50 notice, either
plaintiff received actual from thе prothono tary also, or of otherwise dismissal the action.” See Fiorentino, Corcoran v. 256, Pa.Super. 277 (1980). Therefore, if assume that inadequate we notice was might the given, petition fact, we find filed. In timely though, notice, need not reach a we determination as to have because we concluded that even if notice properly given, the removal was nevertheless improper. Fiorentino,
In Corcoran v. supra, we held that filed, although timely petition a to remove should denied “gоod because cause” had not been shown its removal. we found that Specifically, plaintiffs had not reasonably explained the lack of in the activity case from dismissal, the date of the last to docket the date of approximately years. 2V2 In this case no explanation has been for the offered ten-year gap non-activity prior dismissal. As we Corcoran, explained 277 at Pa.Superior Ct. A.2d 419 at purpose local rules of court such as Philadelphia
Rule to proteсt 350 is our trial courts from bur- being dened by stale claims. Telephone International Telegraph Corp. Co., v. Philadelphia Electric supra [25 Pa.Super. 378] at 378 A.2d [986] at 989. This pur- pose would be undermined if plaintiffs’ counsel’s explana- delay tion could be deemed reasonable. Conse- quently, plaintiffs because have failed ex- reasonably plain default which occasioned dismissal of their action, the lower court erred in reinstating this action. (Footnote deleted.)
Similarly, we conclude that the lack of for the explanation default in this case calls for reversal the lower court’s Ber, v. Papo Inc., Faulks order. See also supra; Stawiar- Hall, ski (1982). A.2d Pa.Super. Order reversed and dismissal entered Prothono- tary reinstated. J.,
CIRILLO, opinion. files a dissenting
51
CIRILLO,
dissenting:
Judge,
correctly
the majority
I
dissent. While
respectfully
application
calls for the
out that this case
points
Bar, Inc., 280
Papo
test in Faulks v.
Pa.Su-
three-pronged
the
majority
421
the
fails to state
per.
A.2d 810
reviewing
are to
the
apply
standard
review we
proper
A
a
рetition
judg-
court’s
vacate
lower
determination.
to the sound discretion
pros
ment of non
is addressed
judge
and the decision
the trial
will
be
judge,
trial
showing
a
that there was an error
law
disturbed absent
decision,
clear,
or that there was a
manifest
affecting
See,
Company,
abuse of discretion.
Balk v. Ford Motor
(1971);
Bernotas,
446 Pa.
v.
Beausang
(1982).
335,
The first of the Faulks v. Inc. test Papo requires petition opening that the a of non filed. The out Philadel- pros timely majority points that (also 350) Rule 130 as phia Philadelphia known Star Rule provides petition for a three month a reinstate a case dismissed under the rule. The majority also the limitation we on the recognized imposed application of this Kaytes, Pa.Super. rule Stringer (1981) 429 A.2d where we wrotе: It would be unfair to a to file obviously require party petition to reinstate within three months of the date of prothonotary neglected dismissal when the has to notify party of dismissal. here, proper notification under the generally applicable 236(a)(2),requires by ordinary Pa.R.C.P. written notice mail *6 of the the “to each has party who in the to the appeared party’s attorney action or record”.1 found, court on the of the lower based affidavits parties, that neither the former Mr. attornеy, Bongiovanni, appeared whose name still on the docket as attorney but case, who had since withdrawn from the nor the then Katz, current Mr. had received the notice attorney, requisite question in the mail. I find no reason to finding. inadequate, Since thе notification was Stringer Kaytes, that a determination of supra, requires timeliness be based on the date or his plaintiff attorney when received actual notice of the dismissal of the action. The court that, just below did and found that the six and one-half mоnth delay filing petition from the date of actual reasonably explained notice was the need of counsel to the activities of the investigate three other attorneys three different firms. The lower court wrote:
In light ground of the work that had to сompleted by be prior Mr. Daniels petition, the six and one-half delay month cannot be classified as untimely. Rather, the time delay timely, ex- reasonably plained.
Thus, the lower court found the filed “timely petition” prong to satisfied. presented Given the facts in this case, I finding do not believe that this can be classified as an error of law or an abuse discretion.
The second prong Bar, Inc., the Faulks v. Papo supra, requires plaintiff test that the reasonably explain the lack of in the case from аctivity the date of the last docket entry to the date of dismissal. The majority con- tends that explanation no has offered ten-year been for the I, however, gap here. do not find this view of the record to be correct. Savitt,
1. On October the Honorable David N. Court Adminis- Pleas, Philadelphia County trator of the Court of Common directed prothonotary give required by to notice Pa.R.C.P. 236 whenever a case was dismissed under the local rule. The lower court found a explanation reasonable for the lack of based on activity the fact that neither the attorney appeared who on the docket not the attorney who actually represented plaintiffs were advised that the matter was if subject dismissal no action was taken. Thе lower court
wrote: had
Clearly, counsel been so advised would they have had an opportunity take measures to prevent dismissal, as was done after same was ascertained.
While this Court in Fiorentino, Corcoran v. 277 Pa.Super. held that the lack of notiсe alone is *7 require insufficient to reinstatement, the facts of this case reveal additional considerations support that the lower court’s decision. The plaintiffs changed have attorneys on four occasions between 1980, 1972 and and each change required of time for the new attorney plan and plot trial strategy. addition, In the circumstances sur rounding the discovery of the dismissal Mr. Katz reveal that he was attempting to file a Certificate of Readiness under Philadelphia 151,2 Rule required which that the Cer 1, tificate be filed by May 1981 under penalty dismissal. This filing, attempted to be taken knowledge without of the earlier judgment of pros, non supports the conclusion of the lower court that the attorney would not have allowed the case to gо into default had he known that dismissal was possible, knowledge that he lacked because of the inadequa cy the notice. facts, Based on find, these I would as the did, lower court that the second prong of the Faulks v. Bar, Papo Inc., supra, test is satisfied.
The third requirement,
that facts constituting grounds
for a cause of action be alleged, is easily satisfied in this
situation, since the complaint states a prima facie
if
case
facts, as alleged, are taken as true.
International Tele-
phone & Telegraph v. Philadelphia Electric Company,
378,
250 Pa.Super.
(1977).
Since I find that lowеr court did abuse its discre- application Bar, Inc., tion its v. Papo Faulks criteria facts I supra, presented, would affirm of the lower court and judgment vacate pros. non
Patricia ANSELMINO STARANKO, Andrew Auto Staranko’s t/d/b/a
Body, Appellants.
Superior Court Pennsylvania.
Argued March 1983. Aug.
Filed 1983. *8 McCormick, William appellant. Jon for Bеntleyville, Black, Monongahela, appellee. Blane A. CAVANAUGH, Before MONTGOMERY, BROSKY and JJ.
PER CURIAM:
Appellants present for our consideration the sole question of whether entered properly matter trial court. however, record us is incomplete, before as no tran- scripts the trial the post-trial hearing is available