Tice v. Nationwide Life Insurance , 284 Pa. Super. 220 ( 1981 )

WICKERSHAM, Judge:

This appeal by Nationwide Life Insurance Co. (hereafter Nationwide) is presently before our court for the second time. Basically, Eugene A. Tice, plaintiff below, filed a complaint in assumpsit on September 16, 1974, seeking the proceeds of a $50,000 life insurance policy issued by appellant on the life of Robert Lindsay. After appellant filed an answer and new matter alleging that Tice had no insurable interest in the life of Robert Lindsay, the insured’s widow, Diane Lindsay Bradley, intervened as a party plaintiff on behalf of the insured’s estate.

Bradley filed interrogatories to be answered by appellant on June 16, 1976, which were not answered. Utilizing the sanction procedures authorized by Philadelphia Civil Rule 4005*(d)¹ the Prothonotary of Philadelphia entered a final order of judgment by default on December 9, 1976.

Nationwide filed a petition to open judgment entered against it. Judge Goodheart entered an Order dismissing that petition and Nationwide appealed to our court and we affirmed.² We held then that the lower court had not erred in holding that appellant failed to reasonably explain or reveal a legitimate excuse for the delay that occasioned the default judgment. It is important to note that appellant also argued on appeal a contention that this default judgment was not entered in strict compliance with Rule 4005*(d), attempting thereby to seek to benefit by our then recent decision in Strickler v. United Elevator Co. (Inc.), 248 Pa. Super. 258, 375 A.2d 86 (1977).³

We held, however, that Rule 4005*(d) was in effect at all relevant times, and any contention that this default judgment was not entered in compliance therewith could and should have been presented to the lower court. We refused, therefore, to consider appellant’s Strickler argument for the first time on appeal.

More than a year later Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005*(d)] was before a three judge panel of our court in Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979).1 **⁴ In Gonzales the Prothonotary of Philadelphia had entered an interlocutory order pursuant to Philadelphia Civil Rule 145 which directed appellee to answer appellant’s interrogatories within 30 days or suffer a judgment of non pros. Thereafter judgment of non pros was entered by the prothonotary and more than a year later appellee moved to strike the judgment of non pros. The lower court, by the Honorable Abraham J. Gafni, entered an order striking the judgment of non pros which order was based upon a finding that the procedure prescribed by Philadelphia Civil Rule 145 was in conflict with Pa.R.C.P. 4019 and therefore invalid.

In Gonzales, we said:

“Although the several courts of common pleas may properly adopt local rules, such rules are invalid to the extent that they conflict with or are inconsistent with the Pennsylvania Rules of Civil Procedure. City of Philadelphia v. Percival, 464 Pa; 308, 346 A.2d 754 (1975); Gilmer v. Philadelphia Transportation Company, 237 Pa.Super. 57, 60, 346 A.2d 346, 348 (1975); Act of June 21, 1937, P.L. 1982, No. 392, § 2, as amended, 17 P.S. § 62.³

“In 1977, when appellant’s judgment was stricken, Pa.R. C.P. No. 4019(a)(1) provided that the “court may, on motion, make an appropriate order if a party wilfully fails to file answers ... to written interrogatories served under rule 4005.”⁴ Subsection (c) identified the types of orders5 which a court may enter when acting under subsection (a).

“Philadelphia Civil Rule No. 145 6 purports to establish a procedure by which the Prothonotary shall, on praecipe and certification of notice, “enter an interlocutory order requiring the adverse party to file answers within thirty (30) days ...” If answers are not filed within such period of thirty days and the moving party follows the prescribed procedure, the interlocutory order will become final and, on praecipe, a final sanction order will be entered. The mandatory sanction, if the defaulting party is a plaintiff, is an order entering a judgment of non pros. The procedure established by the Philadelphia rule does not require intervention by the court and does not permit the Prothonotary to exercise discretion in fashioning the sanction order.

“Pa.R.C.P. No. 4019 is clear. It establishes an unequivocal and mandatory procedure. Where answers to interrogatories have not been filed, a motion must be presented to the court to determine the default. Hanchey v. Elliott Truck Brokerage Company, 421 Pa. 131, 135, 218 A.2d 743, 745 (1966). Upon finding that a default has occurred, “the court may . . . make an appropriate order.” Subdivision (c) of Pa.R.C.P. No. 4019 amplifies the scheme of the rule by designating specific sanction orders which may be appropriate under particular circumstances. The imposition of specific sanctions, however, is largely within the discretion of the court. Pompa v. Hojnacki, 445 Pa. 42, 45, 281 A.2d 886, 888 (1975). See also: 10 Goodrich-Amram 2d § 4019(a):2.1, 3.1; 5A Anderson Pennsylvania Civil Practice § 4019.2. As a general rule, sanctions will not be imposed in the absence of some wilful disregard or disobedience of a court order or an obligation expressly stated in the Rules. In any event, it is the court which has been given responsibility for overseeing discovery conducted by the parties and which may enter appropriate sanctions to insure the adequate and prompt discovery of matters allowed by the Rules of Civil Procedure.

“This responsibility cannot be delegated to a ministerial officer such as a Prothonotary. Although he acts as clerk for the court of common pleas, the Prothonotary possesses no judicial powers. Irwill Knitwear Corp. v. Wexler, 229 Pa.Super. 48, 323 A.2d 23 (1974); Smith v. Safeguard Mutual Insurance Company, 212 Pa.Super. 83, 86, 239 A.2d 824, 826 (1968); Warner v. Cortese, 5 Cmwlth. 51, 288 A.2d 550 (1972).

“In the instant case, we hold that Philadelphia Civil Rule 145 is in conflict with Pa.R.C.P. No. 4019 and invalid. Therefore, the Prothonotary lacked the power to enter a judgment of non pros against appellee, and a judgment so entered was null and void. The trial court properly ordered the same stricken.

“Order affirmed.” (Footnotes Omitted)

Id., 268 Pa.Super. at 249-253, 407 A.2d at 1340-1342.

Following our affirmance in Tice v. Nationwide Life Ins. Co., 253 Pa.Super. 118, 384 A.2d 1257, supra, the appellant, Nationwide, then filed a motion to strike the default judgment. The lower court denied the motion and a three judge panel of our court heard the appeal.

Subsequently, we granted a petition for reargument en banc in order to consider the impact of Gonzales, supra, on this and other recent decisions.⁵

We agree with our panel conclusion in Gonzales, supra, that Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005*(d)] is in conflict with Pa.R.C.P. 4019 and therefore invalid. 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 as here, an appeal was pending when Gonzales was handed down.⁶ We further hold that appellant has not waived its right to such application in the instant case because of a failure to argue the invalidity of Philadelphia Civil Rule 145 in the lower court.⁷

Accordingly, we reverse the order of the lower court and strike the judgment entered on behalf of appellee.

SPAETH, J., files a concurring opinion, in which CER-CONE, President Judge, and PRICE, J., join. CAVANAUGH, J., files a dissenting opinion.

1 . Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005*(d)], provides in pertinent part as follows:

“If the adverse party fails to file of record answers to the interrogatories within the time period required by this Rule .. . the Prothonotary shall, on praecipe and certification of service, and upon ten days notice by the party filing the interrogatories, enter an interlocutory order requiring the adverse party to file answers within thirty days of the date of the order, and providing for sanctions as hereinafter set forth.

“This order shall become final at the expiration of the interlocutory period, upon filing of a supplemental praecipe and certification of service, unless prior to the expiration of the interlocutory period, the party required to answer the interrogatories files a motion for an extension of this time limit. Such motion shall be disposed of by an appropriate order of the Civil Motion Court.

“The interlocutory order of the Prothonotary setting forth sanctions as provided herein, shall be as follows:

“(1) As to defendant, defendants, or additional defendants, an order entering judgment as to liability in favor of the party filing the interrogatories against the non-answering party who shall be precluded from the entering of a defense and the introduction of evidence at the time of trial relating to the subject matter of the unanswered interrogatories; . ..

“Wherever a praecipe is required herein, it shall be filed by the party filing the interrogatories.”

2 . Tice v. Nationwide Life Ins. Co., 253 Pa.Super. 118, 384 A.2d 1257 (1978), opinion by President Judge Jacobs.

3 . Strickler, which was decided June 29, 1977 in an opinion by Judge Jacobs, was the first decision of this court construing Rule 4005*(d). We reversed the lower court’s order refusing to strike the default judgment since the record there revealed that service of the executed interlocutory order had not been effected and, therefore, the 30 day interlocutory period had not commenced.

4 . Allocatur denied, October 29, 1979.

5 . Among these recent decisions are

Graham v. Kutler, 275 Pa.Super. 188, 418 A.2d 676 (1980), where a panel of our court reversed the order of the lower court and struck a judgment entered by default for failure to file answers to interrogatories pursuant to Philadelphia Rule 4005*(d). The panel opinion made reference to the Gonzales decision, supra. The controlling decision in reversal, however, was the Strickler case, supra. Also Pavone v. Anthony and City of Philadelphia, 273 Pa.Super. 376, 417 A.2d 697 (1980), where a panel of our court reversed the order of the lower court and struck the judgment which had been entered by the Philadelphia Prothonotary pursuant to Philadelphia County Local Rule 4005*(d), again citing and relying on Gonzales and stating that, “The judgment entered here must also be stricken since it likewise was taken under the now invalid rule.”

Finally, in Washington v. Liberi, 273 Pa.Super. 48, 416 A.2d 1082 (1979), filed December 21, 1979, a panel of our court affirmed the order of the Court of Common Pleas of Philadelphia County denying appellant’s petition for reconsideration of an earlier order denying his motion to strike a non pros. A judgment of non pros had been entered against appellant for his failure to answer interrogatories and judgment was entered pursuant to procedures established by Philadelphia Civil Rule 145. The lower court had entered an order dated June 6, 1977, denying plaintiff’s petition to strike the judgment of non pros and thirteen (13) months later plaintiff-appellant filed his petition for reconsideration of the order of June 6, 1977, which had denied his motion to strike. On appeal plaintiff-appellant argued that the Philadelphia Civil Rule 145 was void for being inconsistent with Pa.R.C.P. 4019. It was the only issue raised on appeal before the Superior Court panel which cited Gonzales in its panel decision but refused to apply Gonzales retroactively. The panel decision held that Gonzales did not compel reconsideration of the order entered in June 1977.

In a lower court opinion of Gibson v. City of Philadelphia, 3 P.C.R. 426, filed October 22, 1979, President Judge Bradley, a judgement by default had been entered by the prothonotary against defendant, City of Philadelphia, pursuant to Philadelphia Court Rule 145 for failure to answer interrogatories. Citing Gonzales the court held that Philadelphia Civil Rule 145 was in conflict with Pa.R.C.P. 4019 and invalid. The court held, therefore, that the prothonotary lacked the power to enter a judgment of non pros against appellee and held that a judgment so entered was null and void. The court concluded that the judgment was void and must be stricken without regard to the passage of time. The court did remind the parties that the striking of the judgment against the defendant would not preclude the plaintiff from filing a proper motion for sanctions pursuant to Pa.R.C.P. 4019.

6 . A judgment, to be valid and enforceable, must be supported by three elements. They are: (1) the court must have jurisdiction of the parties; (2) the court must have jurisdiction of the subject matter; and, (3) the court or tribunal must have the power of authority to render the particular judgment. Roberts v. Gibson, 214 Pa.Super. 220, 251 A.2d 799 (1969); if the requirements for validity are not met, a judgment may be subject to avoidance. Restatement (Second) of Judgments (Tent. Draft No. 5, March 10, 1978). Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940).

7 . Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). The issue here is one of law. We have already decided Gonzales. No benefit to us would occur if the issue had been argued below and an opinion written by the lower court. There being no purpose, in this case, to applying a waiver finding, we decline to do so. “... it is unjust to require an appellant whose case is not yet final to endure the burden of a rule now recognized as offensive to our jurisprudence [footnotes omitted].” Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977).