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JULIA M. DUPREE v. J. LEE (06/28/76)

decided: June 28, 1976.

JULIA M. DUPREE, ADMINISTRATRIX OF THE ESTATE OF JAMES DUPREE, DECEASED, AND JULIA M. DUPREE, IN HER OWN RIGHT
v.
J. LEE, M.D., ET AL. APPEAL OF JAMES J. BOYLE, M.D. AND R. D. DERHAM, M.D. A/K/A DEARHORN, M.D.



Appeal from the Order dated July 17, 1975 of the Court of Common Pleas, Trial Division, Law, Philadelphia County, at No. 1278 January Term, 1975. No. 1787 October Term, 1975.

COUNSEL

Charles B. Burr, II, Philadelphia, for appellants.

Barton A. Haines, S. Josel, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Cercone

[ 241 Pa. Super. Page 261]

This is an appeal from an order vacating a judgment of non pros. The facts are as follows. On December 26, 1973 James Dupree was admitted to St. Joseph's Hospital where he subsequently died on January 11, 1974. On January 10, 1975, a summons in trespass was filed against the defendant doctors who treated Mr. Dupree during his stay at St. Joseph's Hospital. On March 11, 1975 defendant's counsel issued a rule upon plaintiff to file her complaint within twenty days, by March 31, 1975. Rather than file the complaint, plaintiff requested a 20-day extension, until April 21, 1975, within which to file the complaint. This extension was granted by defendants.

[ 241 Pa. Super. Page 262]

By letter dated April 18, 1975 plaintiffs requested a second twenty day extension, until May 8, 1975, within which to file the complaint. This extension was also granted by the defendants. By May 9, 1975 plaintiff had neither filed a complaint nor requested a third extension. Accordingly defendant, by letter dated May 9, 1975, unilaterally granted a third extension, until 5:00 P.M., May 16, 1975, within which time plaintiff could file her complaint. Defendant's May 9, 1975 letter also contained a warning that if plaintiff's complaint was not filed by May 16, 1975, defendant would have no alternative but to enter a judgment of non pros. Subsequently on May 19, 1975, no complaint having been filed, upon praecipe defendant received a judgment of non pros. On June 23, 1975 plaintiff filed a motion to vacate the judgment of non pros, and on that same day defendants filed a reply. A hearing was held on July 17, 1975 after which the hearing judge vacated the judgment of non pros and granted plaintiff an additional 20 days within which to file their complaint. Defendants have appealed to this court arguing that the vacating of the judgment of non pros was an abuse of discretion.

In the case of Thorn v. Clearfield Borough, 420 Pa. 584, 586, 218 A.2d 298, 299 (1966) our Supreme Court held that in order to vacate a judgment of non pros three criteria must be met: "(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." Accord Goldstein v. Graduate Hosp. of the U. of Pa., 441 Pa. 179, 272 A.2d 472 (1971); White v. Alston, 231 Pa. Super. 438, 331 A.2d 765 (1974); Boyles v. Sullivan, 230 Pa. Super. 453, 326 A.2d 440 (1974); Matyas v. A. Einstein Med. Center, 225 Pa. Super. 230, 310 A.2d 301 (1973). In the instant case we need only look to the second criteria, whether the reason for the default was reasonably explained or excused.

[ 241 Pa. Super. Page 263]

The only reason offered by plaintiff for not filing the complaint by 5:00 P.M. on May 16, 1975 rests on facts set forth in an affidavit of Kathryn M. Williams, secretary for plaintiff's counsel. The text of that affidavit is as follows:

"Kathryn M. Williams, being duly sworn according to law, depose and say that I am the secretary to Barton A. Haines, Esquire [plaintiff's counsel], and that on Friday, May 16, 1975, I telephoned the secretary to Charles B. Burr, II, Esquire [defendant's counsel], to request an extension of time over the weekend so that the Complaint in the above matter could be filed on Monday. She said she would relay the message.

"On Monday, May 19, 1975, I telephoned her to inform her that the Complaint would be filed either that afternoon or on the morning of May 20, 1975. She said that if ...


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