Appeal, Nos. 43 and 44, Jan. T., 1954, from order of Court of Common Pleas of Lackawanna County, April T., 1947, No. 234, in case of Leonard T. Downes et ux. v. M. L. Hodin and Samuel Hodin, trading as Giant Markets, Inc. and Louis Kornfeld. Order reversed.
William Zacharellis, with him Biakowski, Bialkowski & Bialkowski, for appellant.
Stephen E. Gombar, with him Frank J. McDonnell, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
This is an appeal from the Order of the Court dismissing a petition to open a default judgment against defendant, Kornfeld.
The proceedings in the case are unusual. Plaintiffs brought an action in trespass against M. L. Hodin and Samuel Hodin, trading as Giant Markets, Inc., and Kornfeld, for injuries to the wife-plaintiff resulting from falling on a patch of ice on the sidewalk of property owned by Kornfeld and leased by Giant Markets, Inc. The accident happened on February 7, 1945. Plaintiffs made no claim until two years (less
one day) later, viz., February 6, 1947, when they filed a praecipe for a summons in trespass. Plaintiffs took no further action until April 20, 1949, when they filed a complaint 4 years and 2 months after the accident.
Plaintiffs' complaint averred (in paragraph 2) that defendants, M. L. Hodin and Samuel Hodin, "operate and conduct a retail grocery store at... 118 Chestnut Street in... "Dunmore"; and (in paragraph 3) that "Louis Kornfeld... is the owner of the said premises situate at Number 118 Chestnut Street, in which the other Defendants operate and conduct their said retail grocery store." Plaintiffs further averred that Mrs. Downes, at 12 o'clock noon, slipped on an accumulation of ice approximately two feet square in size which had existed for 24 hours. Under these facts and these averments it is not surprising that an owner of property who had no lawyer took no action to defend the suit.
Defendant had 20 days to answer plaintiffs' complaint; he failed to file an answer or to enter an appearance. After the expiration of said 20 day period plaintiffs had the choice (1) to file a praecipe directing the Prothonotary to enter a default judgment against defendant, Kornfeld, and thereafter to have a jury assess damages: See Pa. R.C.P. No. 1047; or (2) to file an order with the Prothonotary to have the action or case listed for trial. Plaintiffs chose the latter course by listing the case for trial and serving notice thereof on defendant, Kornfeld. The latter was thus put on notice that he admitted ownership of the property and that he would have to meet the other issues averred in plaintiffs' complaint which, although ...