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HARTIGAN v. CLARK (12/01/60)

December 1, 1960

HARTIGAN
v.
CLARK, APPELLANT.



Appeals, Nos. 144, 145, 146 and 147, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1952, No. 2218, in case of William Hartigan v. Alyce Hoerr Clark, administratrix of estate of John P. Hoerr, deceased et al. Judgment reversed.

COUNSEL

Hamilton A. Robinson, with him Dickie, McCamey, Chilcote & Robinson, for appellants.

Harry Alan Sherman, for appellee.

Lisle A. Zehner, for David B. Roberts, Prothonotary, Court of Common Pleas of Allegheny County, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 401 Pa. Page 597]

OPINION BY MR. JUSTICE BOK

This case has been tried twice and was here on appeal from the grant of a new trial after the first one, at 389 Pa. 283 (1957), 133 A.2d 181. Both trials resulted in a verdict for the plaintiff in the sum of $20,000, and this time the verdict was allowed to stand. Defendant appealed when her motions for a new trial and for judgment n.o.v. were overruled.

There is a preliminary matter to cope with before we test the merits. Defendant filed, on December 9, 1959, a motion to amend the record to show that the verdict fee was paid and judgment entered on November 20, 1959, instead of on August 5, 1959. Since this appeal was taken on February 17, 1960, the timeliness of its filing depends on whether judgment was entered on one date or the other. The court below, in an opinion by the late Judge MARSHALL, of Allegheny County, held a hearing, took testimony on the petition, upheld the date of August 5th, and dismissed defendant's petition to amend the record. The current appeal is also from that order.

Certain facts are conceded: that the court below overruled defendant's motions for a new trial and for judgment n.o.v. on August 4, 1959; that the jury fee of $5 was paid on August 5; that a receipt bearing that date has a legend on the reverse side: "Verdict fee paid and judgment entered on verdict, etc."; that on the same date judgment was entered in the Judgment Docket and indexed in the current General Judgment Index, as well as in the Ad Sectam Judgment Docket; and that the judgment was published in the August 7 issue of the Pittsburgh Legal Journal.

It is also admitted that the Appearance Docket contains the following entry: "On August 5, 1959, verdict fee paid and judgment entered on verdict in favor of William Hartigan in sum of $20000."

[ 401 Pa. Page 598]

The contention of defendant is that this entry was actually made on November 20th and retro-dated. This forms the battle lines, since the plaintiff stands on the record as it appears.

The opinion of Judge MARSHALL contains the following two paragraphs in disposition of this controversy: "After a careful review of the entire record, the Court is of the opinion that there is not sufficient evidence to support defendant's contention. It is admitted that counsel for plaintiff paid the verdict fee on August 5, 1959, and judgment was noted on the verdict slip, in the fee docket, the Adsectum Index and General Judgment Index. The clerk from the Prothonotary's Office testified that he entered the judgment on the back of the verdict slip on August 5, 1959, and also on the Appearance Docket. The court records speak for themselves and the Court should sustain them unless there is sufficient evidence to the contrary.

"In addition to this, it is to be noted that although counsel for defendant states he had the Appearance Docket checked periodically, he never examined the other dockets or the papers themselves until November 20, 1959. Had he done so, he would have discovered that plaintiff's counsel paid the verdict fee on August 5, 1959, and judgment had been entered in the other dockets."

The evidence before the court on the crucial point was the testimony of five men: Norbert Pail, a college student working part time in the winter and full time in the summer in the office of defendant's counsel; David H. Trushel, Esquire, a lawyer associated with defendant's counsel; Harry A. Sherman, Esquire, plaintiff's trial counsel; Hamilton A. Robinson, Esquire, defendant's trial counsel; and John S. Kenna, a clerk in the Prothonotary's office.

[ 401 Pa. Page 599]

Pail testified that he was directed by Mr. Robinson to inspect the Appearance Docket in early August; that he did so on August 10 and 27, September 4 and 10, October 17, 18, 19, 26 and 29, and November 5, 9, 12 and 16; that on none of these dates did he find the record of a judgment on the Appearance Docket; that he was unfamiliar with the other judgment indices and did not check them; and that he made - improperly, though he did not consider it so - a small pencilled X on one page of the Appearance Docket in order to show his place and relieve him from rereading the record prior to that point.

Mr. Trushel testified that he was an associate in Mr. Robinson's office and was asked by him to examine the Appearance Docket on November 20; that he did so on that date and found no entry of the judgment; that he then got the papers in the case and found the receipt for the jury fee and its reference to entering judgment; that he spoke to Mr. Mawhinney, a floor man in the Prothonotary's office, who looked at the Appearance Docket and pronounced it an error; that Mawhinney then summoned Kenna, another floor man, who, at Mawhinney's direction, entered judgment in the Appearance Docket as of August 5, 1959; that this was done in his, Trushel's presence on November 20; that he saw Pail's pencilled X on the docket; and that when he protested Kenna's nunc pro tunc entry of judgment on the ground that it would affect the right to appeal, kenna shrugged his shoulders.

Mr. Sherman testified that he paid the $5 verdict fee to the Prothonotary on August 5, 1959; that he notified Mr. Robinson orally that he had paid the verdict fee and taken judgment; and that he never checked the Appearance Docket after August 4th.

Mr. Robinson testified that he directed Pail to check the Appearance Docket; that Pail reported to

[ 401 Pa. Page 600]

    him regularly; that he did not know about judgment being taken until he met an associate of Mr. Sherman's who said that it had been done and that he had a receipt, and that he then had the situation checked; that Mr. Sherman did not tell him that judgment had been taken; that he had no notice that it had been; and that he had never taken judgment for his opponent in order to preserve his right to appeal.

Kenna testified that he was a prothonotary's clerk; that he believed that he had made the entry of judgment in the Appearance Docket on August 5 because the book said so, but that he had no independent personal recollection of the fact, although he did remember Mawhinney's speaking to him about it; and that he had seen the small pencilled X in the Docket but did not know what it meant.

On the basis of this testimony Judge MARSHALL said that he records spoke for themselves and should be sustained except on sufficient evidence to the contrary: he referred to the admitted facts but dismissed defendant's contention concerning the disputed Appearance Docket by saying that it was not supported by sufficient evidence.

We find it difficult to imagine more specific evidence than that of Messrs. Thrushel, Robinson and Pail. Thrushel saw Kenna make the entry on November 20; Kenna didn't remember but relied on the book. Plaintiff argues that if defendant didn't call Mawhinney to testify it must be presumed that the witness had adverse evidence to offer, but in a case like this that sword cuts both ways; the court was entitled to every scrap of relevant testimony and the duty to call a witness, if he had any knowledge, lay equally on both sides.

This is not the case where we feel bound by a chancellor's findings of fact. These are not lay witnesses, strangers to the court's process. The essential issue

[ 401 Pa. Page 601]

    lies between an officer of the court and an employe of one of its arms. Counsel's unworthy imputation of unprofessional conduct to a brother lawyer, that he would shade his testimony so as to uphold the position of his firm, is weaker than the counter inference that the Prothonotary's employe may have gone by the book and forgotten the fact in order to cover his reprehensible act of retro-dating an entry of judgment and destroying counsel's right of appeal.

We regard the evidence favoring November 20 as so clear and weighty and the opposing evidence as so lacking in substance that we would be regrinding the miller's grain if we ordered a further hearing or failed to settle the issue ourselves. The finding is so clearly in error that it amounts to an abuse of discretion and is subject to being overruled: Claughton v. Bear Stearns & Co., 397 Pa. 480 (1959), 156 A.2d 314.

The court below accepted Kenna's testimony that he made the entry in the Appearance Docket on August 5th, when Kenna had no independent recollection and no other reason than that the book contained the date. But that was the very thing to be proved. To discredit the countervailing evidence as insufficient, when it consisted of three persons, two of them lawyers and one of those an eyewitness, amounts to a capricious disbelief which in itself warrants our setting aside the findings: Masciantonio Will, 392 Pa. 362 (1958), 141 A.2d 362.

The Act of June 11, 1879, P.L. 134, 17 PS § 1929 provides that a final judgment must be entered in the appearance docket.

In Trestrail v. Johnson, 297 Pa. 49 (1929), 146 A. 150, we said: "Not alone the Act of 1879, but the earlier Act of April 3, 1843, P.L. 127, recognizes that judgments must be 'properly entered upon the appearance docket' before they are 'transcribed' in the judgment docket or index."

[ 401 Pa. Page 602]

Both Acts apply in terms to all counties in the State, and we see nothing inconsistent with them in the Second Class County Act of May 16, 1935, P.L. 168, § 1, 17 PS §§ 1933 and 1934 (pocket). Our problem concerns the timing of an appeal, for which the Appearance Docket is appropriate, and does not concern title to real estate.

In McClelland v. West Penn Appliance Co., 132 Pa. Superior Ct. 471 (1938), 1 A.2d 491, the Court said, speaking of the Non Obstante Veredicto Act of 1905: "The Act of March 29, 1805, 4 Sm.L. 242, § 13 (12 PS § 1051), providing for the payment of a jury fee, and the entry of judgment upon a verdict, had no reference to a judgment entered directly by the court under the Act of 1905: Jones v. Marion Coal Co., 227 Pa. 509, 76 A. 248. Such judgment must be first entered in the appearance docket provided for in the third section of the Act of June 11, 1879, P.L. 134 (17 PS § 1929). This entry alone makes it a valid judgment: Trestrail v. Johnson, 297 Pa. 49, 568 57, 146 A. 150. ...

"Where the court directs a judgment to be entered, intending that the prothonotary should enter the final judgment, there is not a final judgment until such judgment is actually entered in the appearance docket: Watkins v. Neff, supra. [287 Pa. 202]."

Both of the cited cases involve the timing of an appeal.

We are therefore of opinion that there could be no final judgment until it was entered in the Appearance Docket, and that the case was not appealable until then: American Trust Co. v. Kaufman, 279 Pa. 230 (1924), 123 A. 785; Stadler v. Mt. Oliver Borough, 373 Pa. 316 (1953), 95 A.2d 776. We believe that the date of entry of August 5, 1959, has no competent evidence to support it and that the date of November 20 is clearly established.

[ 401 Pa. Page 603]

The order of the court below is reversed; the defendant's petition to amend the record by changing the entry of judgment in the Appearance Docket from August 5, 1959 to November 20, 1959 is granted; and the record is remanded for that purpose.

The appeal was therefore timely.

Turning to the merits, we have a refusal of judgment n.o.v. and hence should regard the testimony in the light most favorable to the verdict, with all reasonable inferences resolved accordingly: Muroski v. Hnath, 392 Pa. 233 (1958), 139 A.2d 902.

Plaintiff fell down the steps in the McKeesporter Hotel in Allegheny County, and suffered severe injuries. The steps, at the end of a corridor, led down to a bar and grille and washrooms on the floor below. They had two landings, left turning.

Plaintiff wanted to wash up and eat. From the top of the stairs he stepped down onto the first step below floor level with his right foot and to the second step with his left foot, but when he tried to move his right foot in order to put it on the third step it "hung up ... right at the toe of the shoe.... I caught it under the right step." There was a handrail on the right wall but none to the left, near which plaintiff was in the act of descending. He fell, heard a bang, was dizzily aware of being in the hospital, and woke up eventually at home.

He said that he was looking where he was going and saw nothing wrong with the steps. There was evidence that in the inadequate lighting the condition of the step could not be seen from above. There was no visible light bulb within the stairwell, but some light was diffused downwards on the stairs from a light 15 to 18 feet above in the ceiling of the corridor and also indirectly upwards from the grille. Hence the lighting was "dim and kind of dark", not pitch dark but with "some light".

[ 401 Pa. Page 604]

Plaintiff had been in the hotel only once before, eight or nine months prior to his accident, and he remembered nothing of its condition then. No other witness testified to the condition of the steps before or at the time of the accident. Aside from catching the toe of his shoe, plaintiff knew nothing about it.

The only evidence describing what it was that may have thrown him was the testimony of his daughter and son-in-law, who visited the hotel twenty-four hours after the accident and examined the steps. They testified that the metal strip, or nosing, which covers the outer end of each step, was, on the first step below floor level, raised or "turned up" a half to three-quarters of an inch above the step for a distance of 12 to 18 inches out from the left-hand wall going down. These nosings were "old, beat up, dirty, dented", and the one in question was "jaggy ... it was broken and it was jagged like a refrigerator or something was pulled over the top of it."

Had the plaintiff or some other witness seen such condition just after he fell, the case could properly have gone to the jury: see Stais v. Sears-Roebuck & Co., 174 Pa. Superior Ct. 498 (1954), 102 A.2d 204, in which a woman fell down steps in a store and while she sat on them saw the lifted nosing and missing screws. The Superior Court said: "What will amount to constructive notice of a defect or dangerous condition existing upon a defendant's premises necessarily varies under the conditions of each case. Among the factors affecting the question are the number of persons using the premises, the frequency of such use, the nature of the defect, its location on the premises, its probable cause, and the opportunity which defendant, as a reasonably prudent person, had to remedy it: Bremer v. W. W. Smith, 126 Pa. Superior Ct. 408, 191 A. 395. It is not always necessary for plaintiff to produce positive testimony as to how long the defect

[ 401 Pa. Page 605]

    existed. In Oberheim v. Pennsylvania Sports and Enterprises, Inc., 358 Pa. 62, 55 A.2d 766, Mr. Justice JONES points out that direct proof of defendant's knowledge is not essential to the imposition of liability where the condition was a likely and foreseeable result of the manner in which the premises were being maintained and used."

See also Oberheim v. Pennsylvania Sports and Enterprises, 358 Pa. 62 (1947), 55 A.2d 766; Coxey v. Guala, 112 Pa. Superior Ct. 460 (1934), 171 A. 484; Cutler v. Dushoff, 192 Pa. Superior Ct. 37 (1960), 159 A.2d 524.

The basic law is clear. In Dushoff, where a patron in a restaurant fell because her heel caught in a loose piece of metal stripping, the Superior Court said: "As restaurant club owners inviting the public to do business on their premises defendants owed plaintiff the affirmative duty to maintain his premises in a reasonably safe condition for the contemplated use thereof. They are subject to liability for bodily injuries suffered by business visitors on their premises if they knew, or by the exercise of reasonable care would determine the existence of a condition which they realize involves an unreasonable risk to the visitors. There being no proof of actual knowledge of the existence of the dangerous condition on the part of defendants here, the burden is on the plaintiff to show the defect had existed for a sufficient time to charge defendants with constructive notice."

In Angelelli v. A. J. Mansmann Co., 168 Pa. Superior Ct. 275 (1951), 77 A.2d 678, a woman fell over stair stripping in a store. No one testified to the condition of the stairs then, but plaintiff's husband went to the store and inspected them three or four days after the accident, and plaintiff went back about a month later. Recovery ...


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