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GAITO v. MATSON (06/21/74)

decided: June 21, 1974.

GAITO, APPELLANT,
v.
MATSON



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 3130, in case of Joseph Gaito v. Marjorie H. Matson.

COUNSEL

Joseph Gaito, appellant, in propria persona.

William C. Walker and Dickie, McCamey & Chilcote, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 228 Pa. Super. Page 289]

The appellant on this appeal is presently residing at the State Correctional Institution at Pittsburgh and has been so incarcerated since sometime prior to 1960. On December 13, 1960 he initiated this action in trespass against appellee, a member of the bar of Allegheny County, alleging certain acts constituting malpractice in the handling of appellant's criminal trial which resulted in conviction. The complaint was properly served on December 19, 1960 and appellee filed her answer on February 6, 1961. Although on February 27, 1961 appellant filed a pleading styled "Motion for Disposition", his next positive move to trial did not come until May 1, 1972, 11 years and 3 months later, when he placed his case at issue on the trial docket. On May 2, 1973 the matter came before the Honorable Anne X. Alpern of the Court of Common Pleas of Allegheny County for pre-trial conference after proper prior notice to appellant; however, that conference was cancelled since neither appellant nor an attorney were present and there had been no pre-trial statement, nor had there been any compliance with the pre-trial procedures required by the Allegheny County local rules of court.

On September 7, 1973 the case was called on the trial list for trial on September 10, 1973. Appellant and his counsel had prior notice of these dates. On September 11, 1973 the lower court entered Judgment of Non Pros. against appellant for the following reasons:

[ 228 Pa. Super. Page 290]

"(1) Failure to prosecute the action with resulting prejudice to Defendant;

"(2) Failure to file a Pre-Trial Statement and otherwise comply with the Rules of this Court; and

"(3) Failure to appear by counsel or otherwise at the call of the list on September 7, 1973, and failure to appear by counsel or otherwise for trial as scheduled September 10, 1973."

On November 8, 1973 the lower court by McLean, J., denied the petition to open the judgment of non pros., and this appeal followed. The lower court did not abuse its discretion and was correct in granting the judgment of non pros. We will affirm the judgment.

In affirming this judgment we are not unmindful of the difficulties presented in any situation such as the one herein and recognize that appellant should receive some latitude both because of his position and because he has insisted throughout in personally handling the instant litigation. We cannot allow, however, those considerations to completely frustrate the judicial system and the orderly processing of litigation. We note that the lower court, prior to May 1, 1972, offered aid to appellant in this matter through the supervision of Carl M. Janavitz, Esquire, a member of the Allegheny County Bar, who was then Habeas Corpus Supervisor for the ...


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