Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, No. 894, in case of Saint Vladimir Ukrainian Orthodox Church v. Preferred Risk Mutual Insurance Company.
Joseph A. Malloy, Jr., with him Hamilton, Darmopray & Malloy, for appellant.
Michael J. Pepe, Jr., for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Hoffman, J., joined in both the majority opinion by Jacobs, J., and the concurring opinion by Cercone, J. Hoffman, J., joins in this concurring opinion. Dissenting Opinion by Spaeth, J. Price, J., joins in this opinion.
[ 239 Pa. Super. Page 494]
This is an appeal from an Order of the Court of Common Pleas of Philadelphia County denying plaintiff-appellant's Petition to Strike Off Judgment of Non Pros. Appellant contends that the lower court's failure to strike the Judgment of Non Pros. constituted both error of law and manifest abuse of discretion.*fn1
Plaintiff-appellant Saint Vladimir Ukrainian Orthodox
[ 239 Pa. Super. Page 495]
Church (hereinafter Vladimir) instituted the underlying action by filing a complaint in assumpsit against defendant-appellee Preferred Risk Mutual Insurance Company (hereinafter Mutual) on January 9, 1974. Vladimir sought to recover under a Mutual fire insurance policy which named Vladimir as mortgagee of church buildings situated on Germantown Avenue and West Berks Street, Philadelphia. In the complaint and the pleadings thereafter filed Mutual averred that the policy had been cancelled before a June 10, 1973 fire destroyed one of the buildings and damaged the other; Vladimir alleged that it had not been notified of cancellation and that sums were therefore due under the policy as a result of the fire.*fn2
On May 6, 1974, Mutual filed a motion for inspection and photocopying of documents and for inspection of the premises involved. An Order was thereafter entered by Judge Kagan on May 17, 1974, granting Mutual's motion. The Order provided that Vladimir should produce certain documents for photocopying and inspection, and also provided, inter alia, that: "Plaintiff [Vladimir] shall file a list of the aforementioned documents furnished to Defendant, identifying said documents within thirty (30) days of this Order and shall furnish Defendant copies or permit Defendant to photocopy and inspect said documents at Defendant's attorney's office within thirty (30) days of the date of this Order and Defendant is given leave to enter a judgment of non pros with the Prothonotary upon Plaintiff's failure to comply with the aforegoing." (emphasis added).
[ 239 Pa. Super. Page 496]
The Order further provided that: ". . . Plaintiff shall permit Defendant and its agents to inspect premises 1848 Germantown Avenue and 518 West Berks Street, Philadelphia, Pennsylvania."
Vladimir never fully complied with the above Order*fn3 and Mutual filed a praecipe for judgment of non pros. on November 19, 1974. Vladimir's petition to strike that judgment was denied April 8, 1975 and again on May 2, 1975, after oral argument had on April 28, 1975.*fn4
In order for Vladimir to prevail on its petition to open the judgment below, it had to establish the necessary criteria for the opening of a judgment of non pros., which are that: (1) the petition must be timely filed; (2) the reason for the default must be reasonably explained or excused; and (3) the facts constituting grounds for the cause of action must be alleged. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Goldstein v. Graduate Hosp., 441 Pa. 179, 272 A.2d 472 (1971); Thorn v. ...