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THORN v. CLEARFIELD BOROUGH (03/22/66)

decided: March 22, 1966.

THORN, APPELLANT,
v.
CLEARFIELD BOROUGH



Appeal from order of Court of Common Pleas of Clearfield County, Nov. T., 1962, No. 315, in case of Agnes C. Thorn and Robert E. Thorn, in his own right, and as the husband of Agnes C. Thorn v. Borough of Clearfield.

COUNSEL

Joseph S. Ammerman, for appellants.

Richard A. Bell, with him Bell, Silberblatt & Swoope, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 420 Pa. Page 585]

Appellants commenced an action of trespass by filing a praecipe for a writ of summons on December 13, 1962. On July 24, 1963, after service of the writ, appellee ruled appellants to file a complaint within 20 days or suffer a judgment of non pros. On November 22, 1963, a judgment of non pros. was entered.

Appellants then filed a petition to strike the judgment of non pros. Appellee answered the petition and a hearing was held. After the testimony was heard and considered, the court below entered an order denying the motion to strike the judgment.*fn* This appeal followed.

A petition to open a judgment is an appeal to the equitable side of the court, and the petition must establish equitable considerations which convince the court that justice would best be served by the striking of the judgment. McDonald v. Allen, 416 Pa. 397, 206 A.2d 395 (1965).

In Wheel v. Park Building, 412 Pa. 545, 195 A.2d 359 (1963), we established the guidelines for opening a judgment by default. In that case, we said that in order for a default judgment to be opened, (a) the petition must be promptly filed; (b) the default or delay reasonably explained or excused; (c) a defense shown to exist on the merits. In a case involving the striking of a judgment of non pros., the same criteria should

[ 420 Pa. Page 586]

    apply; (1) the petition should be timely filed; (2) the reason for the default reasonably explained or excused, and (3) that facts constituting grounds for a cause of action be alleged. Our examination of the record in this case convinces us that the above criteria have been met and justice is best served by striking the judgment of non pros. and permitting the case to proceed to trial on its merits.

Appellants were first represented by an attorney in Clearfield County. Within two weeks following the filing of the praecipe, appellants' attorney suffered a "heart relapse" due to an aortic valve disease. The testimony established that the attorney's heart rapidly deteriorated and his ability to perform his professional duties diminished. The testimony also discloses that the attorney was aware of his condition and was greatly frightened by this knowledge and by the news that he had to undergo surgery. The attorney's doctor testified as follows: "I think he was frightened to death, and I don't believe Mr. Kitko knew what he was doing between the time, that is, generally speaking, not specifically, between the time he was told that he had severe heart disease and had to undergo surgery. He was in complete panic, and I don't think Mr. Kitko particularly cared about what his work was. He was just scared to death and rightfully so. I would have been too. . . . I believe Mr. Kitko was in such a state of mind that he was not thinking about his legal work or what he had to do legally. He was thinking in terms of the surgery, heart ...


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