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decided: April 13, 1978.


No. 496 April Term 1976, Appeal from the Order of January 29, 1976 of the Court of Common Pleas of Beaver County, Pa., Civil Action - Law at No. 889 of 1974.


Bruce E. Woodske, and Oran W. Panner, Beaver, for appellants.

Albert S. Fein, Philadelphia, with him Harry E. Knafelc, Ambridge, for appellee.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 253 Pa. Super. Page 548]

This is an appeal from an order opening an order by which the action had been finally dismissed, and permitting the complaint to be reinstated.

On June 26, 1973, appellee's husband, Gabriel C. Gasbarini, died after an operation performed at appellant Medical Center while under the care of the individual appellants. Desiring to investigate the cause of the death, and if feasible to institute a medical malpractice action, appellee and her son sought to retain a lawyer. After four lawyers had declined the case, appellee heard that a lawyer from Philadelphia, Franklin D. Rubin, happened to be in Beaver County. She spoke to him, and he accepted the case.

[ 253 Pa. Super. Page 549]

On September 26, 1973, Rubin filed a summons in trespass. Appellant Medical Center filed a rule to file a complaint, and sent the rule by certified mail, return receipt requested, to Rubin's address, as listed on the summons. The rule was returned "unclaimed." On January 14, 1974, appellant's lawyer wrote appellee informing her that she risked a non pros, that she should immediately ask her lawyer to prepare a complaint, and that if she had no lawyer, she should advise appellant. Another rule to file complaint was sent to Rubin, this time by ordinary mail; there was no response. On September 20, 1974, judgment of non pros was entered.

Meanwhile, in June of 1974, a second summons was filed, and on October 15, 1974, after a rule to file complaint issued (it is not clear if or how this rule reached Rubin), a complaint was filed. In November of 1974, all appellants filed preliminary objections alleging that the complaint, which had been brought in the name of the decedent's estate, was improper both because an estate cannot be a proper party plaintiff, and because, contrary to the allegation in the complaint, appellee as decedent's wife had not been appointed administratrix of the estate (although proceedings to appoint her had begun). Because of these defects, appellants argued, the statute of limitations had run on the action. Certified notices of the argument were sent to Rubin's address but were returned unclaimed.

On November 27, 1974, Rubin was suspended from legal practice by the Supreme Court. In a later deposition, appellee testified that she and her son had for some time been suspicious that Rubin was not doing a good job, and that they had telephoned him often, each time receiving reassurances. Appellee also testified that she learned of Rubin's suspension not long after it was imposed. Deposition, at 11.

On January 13, 1975, appellants' preliminary objections were argued before the lower court. No lawyer for appellee appeared. On January 31, 1975, the court sustained the preliminary objections and dismissed the complaint without leave to amend. The court had learned at oral argument that Rubin had been suspended, and therefore sent a copy of

[ 253 Pa. Super. Page 550]

    its order to appellee as well as to Rubin.*fn1 No appeal was taken, and the appeal period subsequently expired.

Early in February, 1975, after receiving the copy of the order dismissing the complaint, appellee called Rubin, who replied that "it wasn't necessary for him to be there . . . he would fix another date." Deposition, at 6. Thereafter appellee and her son continued, unsuccessfully, to try to keep in contact with Rubin; they wrote a number of letters aimed at determining Rubin's status and whether he was adequately representing them; and they tried to get another lawyer. Lower court opinion at 5-6.

Finally appellee did get another lawyer. (Meanwhile, on May 19, 1975, Rubin had been disbarred.) Acting on the advice of her new lawyer, appellee obtained her formal appointment as administratrix, and on September 5, 1975, she filed a petition asking the lower court to allow her to reinstate her complaint and to amend its caption. On January 29, 1976, the lower court opened its January 31, 1975, order of dismissal and granted leave to reinstate and amend the complaint,*fn2 which appellee did. This appeal followed.

The problem presented by these events, it will be observed, arises from the fact that appellee took no appeal from the lower court's order of January 31, 1975, sustaining appellants' preliminary objections and dismissing her complaint without leave to amend. Ordinarily, the failure to appeal within the statutory period renders the doctrine of res judicata applicable and precludes the vacation of the order after the time of appeal has passed. Love v. Temple University, 422 Pa. 30, 220 A.2d 838 (1966). This court in

[ 253 Pa. Super. Page 55110]

-day period allowed for appeals had expired. The Supreme Court disallowed an appeal nunc pro tunc:

Where a party has been prevented from appealing by fraud, or by the wrongful or negligent act of a court official, it has been held that the court has power to extend the time for taking an appeal. [Citations] But where no fraud or anything equivalent thereto is shown such appeals cannot be allowed. [Citations] The mistake or neglect of the attorney for the party desiring to appeal is not sufficient ground for relief: Ward v. Letzkus, 152 Pa. 318, 319, 25 A. 778.

262 Pa. at 144, 104 A. at 864 (emphasis supplied).

The Restatement of Judgments similarly makes clear that the actions of appellee's lawyer, Rubin, do not compel granting appellee relief. The Restatement would grant relief when the judgment in question involves fault of the court, see § 120(b);*fn3 or fault by the opposing party, see § 120(a) and (c) and § 122;*fn4 or, sometimes, circumstances beyond the complaining party's control, see § 125 and comment (b).*fn5 It specifically says, however, in § 126:

[ 253 Pa. Super. Page 553]

(2) Although a judgment is erroneous and inequitable, equitable relief will not be granted to a party thereto on the sole ground that

(f) the negligence of the attorney, agent, trustee or other representative of the present complainant prevented a fair trial.

Rubin's actions appear to have been grossly rather than only ordinarily negligent, but this is not a sufficient reason for us to refuse to apply the law; indeed, the contrary is so. If a single incident of mistake or neglect by a lawyer is not ground for relief, neither can repeated incidents be, especially when, as here, they were evident to the lawyer's client.

Great American Credit Corp. v. Thomas M. Mini-Markets, Inc., 230 Pa. Super. 210, 326 A.2d 517 (1974), cited by appellee, involved a mistake of the court in misplacing a party's letter requesting an extension. In Fredley v. Crandall Filling Machinery, Inc., 234 Pa. Super. 530, 342 A.2d 757 (1975), also cited by appellee, the "extraordinary circumstance" involved was a change of law, and therefore neither is it helpful.

We realize that our result is a harsh one for appellee. Her difficulty in retaining a lawyer is regrettable and raises a disturbing doubt about the adequate delivery of legal services in this state, although we should add that on appellee's testimony alone we cannot say that she tried every possible means to obtain a competent lawyer. The policy of finality in litigation, however, serves an important function both for the courts and the parties involved. The policy would be seriously undercut if the mistakes -- great or small -- of a lawyer were to become grounds for opening a court's long-entered order. Evidence in the case might be lost. A self-serving assertion that a lawyer had made a mistake might be difficult, or impossible, for an opposing party -- not at fault in any way -- to rebut. Appellee's remedy must therefore be against Rubin, not appellants, who were not at fault in any way, and who in fact made an early effort to

[ 253 Pa. Super. Page 554]

    alert her to the questionable performance of her lawyer by telling her that she risked a non pros.

The order of the lower court is reversed, and the order of January 31, 1975, dismissing the complaint, is reinstated.

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