Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WHITE v. ALSTON (12/11/74)

decided: December 11, 1974.

WHITE
v.
ALSTON, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1971, No. 3805, in case of Albert White v. Nathaniel Alston.

COUNSEL

Robert C. Steiger, with him Harper, George, Buchanan & Driver, for appellant.

John J. D'Angelo, with him Bank & Minehart, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 231 Pa. Super. Page 439]

This is an appeal from an order granting appellee's motion to open a judgment of non pros.

The dispute in this case concerns an automobile accident that occurred on February 8, 1969. Only appellant and appellee were involved in the accident. Appellee's counsel instituted suit by summons on January 26, 1971, and appellant was duly served. On October 31, 1972, a rule was issued on appellee's counsel to file a complaint or suffer non pros. There is no

[ 231 Pa. Super. Page 440]

    indication in the record that appellee's counsel took any action in response to this rule. On November 22, 1972, appellant entered judgment of non pros., a copy of which was sent to appellee's counsel. Again, there is no indication in the record that counsel acted. On July 30, 1973, appellee's newly retained counsel filed a petition to open the judgment. At no time did this new counsel enter an appearance in the court below, nor was there a withdrawal by original counsel. Appellant answered the petition to open and requested oral argument. This request was denied,*fn1 and the petition was granted.

There are three conditions that must be met before a judgment of non pros. may be opened: (1) the petition to open must be timely filed; (2) there must be a reasonable explanation or excuse for the default; (3) facts constituting a cause of action must be alleged. Goldstein v. Graduate Hospital of The U. of Pa., 441 Pa. 179, 272 A.2d 472 (1971); Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966); Matyas v. Albert Einstein Med. Center, 225 Pa. Superior Ct. 230, 310 A.2d 301 (1973).

It may be assumed that the petition here alleged facts constituting a cause of action.*fn2 There is, however, nothing to show that the other two conditions were met. With respect to these the only allegation is "[t]hat because of the inadvertence of counsel and counsel's inability to obtain complete medical information concerning plaintiff's injuries, filing of the Complaint was deferred." (Petition, para. 5.) This allegation

[ 231 Pa. Super. Page 441]

    is so general as to be meaningless. One is left to speculate about the nature of the "inadvertence of counsel," and why this inadvertence should have resulted in an eight-month delay (from November, 1972, when judgment was entered, until July, 1973, when the petition to open was filed). So far as concerns "counsel's inability to obtain complete medical information," "complete medical information" is not a prerequisite to filing a complaint. Furthermore, and more important, in the answer to the petition to open it is denied that there was any such disability, appellant alleging that "counsel, in fact, had available to him medical letters and reports which he had previously supplied to defendant's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.