
    E.M. Bartikowsky Inc. v. Dino’s Foods Inc.
    
      Keith A. Hunter, for plaintiff.
    
      Phillip T. Medico, for defendants.
    January 15, 1993
   STEVENS, J.,

This matter is before this court upon the motion of the plaintiff to strike a judgment of non pros.

FACTS AND PROCEDURAL HISTORY

This action was initially commenced before a district justice, wherein a judgment was entered against defendants. On November 20,1991, defendants filed an appeal in the Court of Common Pleas and a rule issued on plaintiff to file a complaint. Plaintiff filed a complaint on December 11, 1991 and also on December 11, 1991, defendant filed a praecipe for entry of judgment for non pros. Plaintiff filed a motion to strike the judgment of non pros on October 30,1992, alleging that said judgment cannot stand because plaintiff filed a complaint one day prior to defendant’s praecipe for judgment of non pros, and because the praecipe for rule to file the complaint was never served upon plaintiff. (Plaintiff alleges that the praecipe for entry of judgment of non pros was filed on December 12, 1991, however, it was actually filed on December 11, 1991.)

LAW AND DISCUSSION

Pennsylvania District Justice Rule of Civil Procedure 1004(b) provides as follows:

“If the appellant was the defendant in the action before the district justice, he shall file with his notice of appeal a praecipe requesting the prothonotary to enter a rule as of course upon the appellee to file a complaint within 20 days after service of the rule or suffer entry of judgment of non pros.”

In this case before us the plaintiff filed a complaint on December 11, 1991, at 12:51 p.m. while the defendant filed a praecipe for judgment of non pros also on December 11, 1991, but at 4:09 p.m.

It has been held that a judgment of non pros must be entered before the complaint is filed. Eastlick v. Pennsylvania Power Co., 53 D.&C.2d 779 (1971). Once the complaint is filed on record, there is no right to a judgment of non pros. Sikorski v. Beschak, 41 Luzerne Leg. Rep. 305 (1950). Once the complaint is filed on record, there is no right to judgment of non pros. Non pros is not automatic at the end of the 20-day period. Homemakers Loan and Discount Co. v. Rowe, 4 D.&C.3d 167 (1977).

The court may strike off the non pros judgment in a proper case upon equitable grounds. Glass v. Farmers National Bank, 364 Pa. 186, 70 A.2d 356 (1950).

In this case before us it is clear from an examination of the record that the plaintiff’s complaint was filed on the 21st day. However since the complaint was filed on December 11, 1991, at 12:51 p.m. and the praecipe for entry of judgment of non pros was filed on December 11, 1991, at 4:09 p.m., it is clear that the complaint was filed prior to the judgment of non pros and therefore there is no right to the non pros judgment and said judgment should be stricken.

ORDER

The motion of the plaintiff to strike judgment of non pros is granted and the defendants are hereby ordered to file a response to plaintiff’s complaint within 30 days of the date of this order.  