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MARIE E. LEWIS ET AL. v. JOSEPH REID ET AL. (04/22/76)

decided: April 22, 1976.

MARIE E. LEWIS ET AL.
v.
JOSEPH REID ET AL., APPELLANTS



Appeal From the Order of the Court of Common Pleas of Philadelphia County at No. 139, C.P. No. 10, Trial Div., Law, September Term, 1965. No. 1480 October Term, 1975.

COUNSEL

James J. McEldrew, Philadelphia, for appellant.

Charles S. Lieberman, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion. Spaeth, J., files a dissenting opinion, in which Price, J., joins.

Author: Cercone

[ 244 Pa. Super. Page 78]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting the plaintiffs' (appellees herein) motion to set aside a judgment of non pros which was originally entered as a result of plaintiffs' failure to answer supplemental interrogatories.

The litigation arose as a result of an automobile accident in which the plaintiffs, while passengers in a vehicle owned by the defendant, Discount Rent-N-Drive Systems, Inc., and operated by defendant Reid, were injured when their vehicle was involved in a collision with the automobile of defendant Fisher. Suit was instituted by summons on September 21, 1965, and the complaint was subsequently filed on March 15, 1966.

[ 244 Pa. Super. Page 79]

On November 13, 1969, the defendants filed supplemental interrogatories to the plaintiffs. Having failed to receive timely answers to these interrogatories, the defendants filed a motion for sanctions on March 3, 1970. By order of March 17, 1970, the plaintiffs were directed to answer the supplemental interrogatories within ninety (90) days or suffer a judgment of non pros. On June 26, 1970, a judgment of non pros was entered against the plaintiffs for failing to comply with the aforesaid order of March 17, 1970.

Thereafter, the case lay virtually dormant for over four years*fn1 until July 8, 1974, when the plaintiffs filed a petition to "strike open"*fn2 the judgment of non pros.

On November 15, 1974, the deposition of plaintiffs' counsel, Malcolm P. Rosenberg, Esquire, was taken in support of the petition to "strike open."

By order of December 9, 1974, the instant case as well as twelve others in which judgments of non pros had been entered against a number of plaintiffs represented by Attorney Rosenberg were consolidated for argument and assigned to the Honorable Stanley M. Greenberg. On May 14, 1975, Judge Greenberg ordered that the judgment of non pros in the instant case, as in the others, be set aside. This appeal followed.*fn3

[ 244 Pa. Super. Page 80]

A petition to open a judgment is addressed to the equitable powers of the court. Johnson v. Mulhall, 230 Pa. Super. 183, 326 A.2d 439 (1974); Matyas v. Albert Einstein Medical Center, 225 Pa. Super. 230, 310 A.2d 301 (1973). Accordingly, our Supreme Court has stated that: "A request to open a judgment of non pros is by way of grace and not of right. Its grant or refusal is peculiarly a matter for the lower court's discretion. An appellate court may not reverse the lower court's ruling unless an abuse of discretion is clearly evident: Brigham v. Elgin's of Phila., 406 Pa. 99, 176 A.2d 404 (1962)." Mazer v. Sargent Electric Co., 407 Pa. 169, 171, 180 A.2d 63, 64 (1962). A court will not exercise its discretion and open a judgment of non pros unless three factors coalesce: (1) a petition to open the judgment must be promptly filed; (2) there must be a reasonable explanation or excuse for the default; and (3) facts constituting grounds for a cause of action must be alleged. Goldstein v. Graduate Hospital of The U. of Pa., supra; Thorn v. Clearfield Borough, 420 Pa. 584, 278 A.2d 298 (1966); White v. Alston, 231 Pa. Super. 438, 331 A.2d 765 (1974); Matyas v. Albert Einstein Medical Center, supra.

Instantly, we are constrained to conclude that the appellees have failed to satisfy the first two of these three requirements. Accordingly, the lower court abused its discretion in opening the judgment.

In attempting to excuse both their lack of diligence in filing a petition to open and their failure to timely answer the supplemental interrogatories, the appellees have offered one explanation. In this regard, the appellees' attorney, Malcolm P. Rosenberg, testified that it was through his neglect alone that both the interrogatories were not timely answered and the petition to open was not filed until over four years after the judgment was ...


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