January 2, 1962
EGLIN'S OF PHILADELPHIA, INC.
Appeal, No. 254, Jan. T., 1961, from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1958, No. 2044, in case of Howard Brigham v. Eglin's of Philadelphia, Inc. et al. Order affirmed; reargument refused January 17, 1962.
Joseph R. Siegert, with him Joseph Patrick Gorham, for appellant.
Ralph S. Croskey, with him Frederick W. Anton, III, for appellee.
James M. Marsh, with him LaBrum and Doak, for Josephine Deutsch, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
[ 406 Pa. Page 100]
OPINION BY MR. JUSTICE EAGEN
The narrow question this appeal presents is: Whether or not the lower court abused its legal discretion in refusing to remove a judgment of non pros? We conclude it did not.
The action involved sought recovery of damages for personal injuries allegedly suffered by the plaintiff when struck by an automobile owned by the defendant, Jacqueline Deutsch, and operated by an employee of the defendant, Eglin's of Philadelphia, Inc. The accident occurred on May 23, 1958. Suit was instituted by the issuance of a summons on July 23, 1958. The defendant Eglin's ruled plaintiff to file a complaint on August 22, 1958. The plaintiff served interrogatories on defendant Deutsch, on September 17, 1958. Defendant Deutsch responded to plaintiff's interrogatories by filing preliminary objections raising questions of jurisdiction,
[ 406 Pa. Page 101]
venue and service. No action on these objections followed until January 23, 1961. The plaintiff never filed his complaint. Defendant Eglin's entered a judgment of non pros on December 4, 1958.*fn1
More than two years later, on December 29, 1960, plaintiff's counsel filed a petition to remove the non pros, alleging that because of incorrect notations inadvertently made in plaintiff-counsel's office control system, it was erroneously assumed that the complaint had been filed. The lower court refused the request. This appeal followed.
The relief sought of the court below was by way of grace and not of right. Its grant or refusal was within the discretion of that tribunal. On appeal, we may not reverse unless there was a clear abuse of discretion: Pinsky v. Master, 343 Pa. 451, 23 A.2d 727 (1942).
The court below predicated its refusal to grant the relief requested on the ground that the application was not made with reasonable promptness and because of the absence of compelling equities. As pointed out in Baraonfski v. Malone, 371 Pa. 479, 91 A.2d 908 (1952), although a court has the power to open a default judgment after the expiration of the term in which it was entered, the application for that purpose must be made without unreasonable delay or else the relief sought is barred by laches.
The matter presented was peculiarly for the lower court's decision and the record does not disclose an abuse of legal discretion.
Mr. Justice MUSMANNO dissents.