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RONALD BROSKOSKE AND THERESA B. BROSKOSKE APPELLANTS v. PHILLIP S. PESOTSKI AND GOODWIN VOLKSWAGEN (11/06/81)

SUPERIOR COURT OF PENNSYLVANIA


November 6, 1981

RONALD BROSKOSKE AND THERESA B. BROSKOSKE APPELLANTS
v.
PHILLIP S. PESOTSKI AND GOODWIN VOLKSWAGEN, INC. APPELLEES

No. 2266 Philadelphia, 1980, Appeal from Order dated September 24, 1980, of the Court of Common Pleas, Civil, Luzerne County at No. 7378 of 1975

Before Cercone, P.j., Hester, and Johnson, JJ.

MEMORANDUM OPINION:

This is an appeal from an Order refusing to grant a continuance and dismissing a petition to open a judgment of non pros. In the circumstances hereinafter described, we find no abuse of discretion in the actions of the trial judge and therefore affirm.

In September 1973 Ronald Broskoske (plaintiff/appellant) was injured in a vehicle collision. In August 1975 plaintiffs' attorney filed a praecipe for a writ of summons in trespass against defendants/appellees which was duly served. In June 1976 the defendants' attorney filed a praecipe for a rule on plaintiffs to file a complaint. This procedure was in accordance with the Pennsylvania Rules of Civil Procedure, Rule 1037(a), 42 PA. CONS. STAT. ANN. (Pamp. 1981), which provides in relevant part: "If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint." The plaintiffs did not file a complaint, nor have they done so since. In August 1976 the prothonotary entered a judgment of non pros against the plaintiffs for failure to file a complaint. This also is in accordance with Rule 1037(a) which further provides in relevant part: "If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros." A week later the plaintiffs filed a petition to open the judgment. Defendants duly answered the petition. In August 1977, one day less than a year after the filing of the petition to open the judgment, defendants caused a rule to be issued on the plaintiffs to show cause why they should not proceed to take depositions on the issues of fact in dispute (as to the petition to open the judgment of non pros). This procedure is in accordance with PA. R. CIV. P. 209.*fn1 The rule was made absolute in April 1979, one and three quarter years later, no depositions having been taken, following an argument before the judge. Plaintiffs were given thirty days to take depositions. Between June 1979 and September 1980,*fn2 the matter appeared on the argument list several times but each time a continuance was granted at the request of plaintiffs' counsel without objection by defendants. Finally, the case was listed once again for argument on September 22, 1980, and once again plaintiffs' counsel requested a continuance. On this occasion the judge denied the continuance and dismissed the petition to open the judgment of non pros. Plaintiffs' counsel filed notice of appeal three (3) days later.

Plaintiffs/appellants challenge the judge's action in denying the continuance. PA. R. CIV. P. 216 provides in part: "(A) The following are grounds for continuance: (1) Agreement of all parties or their attorneys, if approved by the Court.*fn3.. (B) Except for cause shown in special cases, no reason above enumerated for the continuance of a case shall be of effect beyond one application made in behalf of one party...."

Although PA. R. CIV. P. 201 requires such agreements to be in writing, there is nothing in the record as to the grounds for the continuances which were granted, although appellants' brief alleges that the delays were due to "counsel's efforts to settle the lawsuit".Brief for Appellants at 4. Where plaintiffs' counsel had never filed a complaint in the original lawsuit, never taken depositions as provided by the Pennsylvania Rules, provided no briefs as provided by local rule, see Luz. Co. C.F.R. 210(a), and seemingly had no bona fide grounds for yet another continuance, we see no abuse whatever of the judges's discretion in at last refusing a continuance.

Plaintiffs' counsel next asserts as error the dismissal of the petition to open the non pros judgment. The non pros judgment was entered pursuant to the Pennsylvania Rules of Civil Procedure, except that the judgment was entered two months after notice to plaintiff's counsel rather than the twenty days provided for by the rule. PA. R. CIV. P. 1037(a), supra. Four years later the petition to open that judgment was dismissed.During those four years plaintiffs' counsel took no action other than not to appear for argument on the petition. Now he charges the trial judge with being punitive, intemperate and without consideration of the facts. For authority plaintiffs' counsel cites default judgment cases rather than non pros judgment cases which we find more appropriate for a non pros case. The tests for opening a non pros judgment are: (1) that the petition to open must be timely filed; (2) that the reason for default be reasonably explained or excused; (3) that facts constituting grounds for the cause of action must be alleged. Goldstein v. Graduate Hospital, 441 Pa. 179, 272 A.2d 472 (1971); Thompson v. Hahn Motors Inc., 269 Pa. Super.Ct. 271, 409 A.2d 884 (1979);*fn4 Kennedy v. Board of Supervisors, 243 Pa. Super.Ct. 46, 364 A.2d 442 (1976).

With regard to the timely filing of the petition to open, we note that on this occasion plaintiffs' counsel filed the petition to open promptly. Contrast Thompson v. Hahn Motors, Inc., supra, where plaintiffs filed the petition to open nearly two years after the judgment was entered. However, in that case a complaint was filed one month after the entry of judgment. As to the third requirement, we see in the petition to open the non pros judgment that plaintiffs' counsel does allege facts constituting grounds for a cause of action in negligence against the defendants.

However, it is with regard to the requirement of a reasonable excuse for the delay which brought on the entry of the non pros judgment that we find no abuse of discretion in denying the petition to open. The praecipe for a writ of summons was filed in August 1975, nearly two years after the automobile accident. Ten months later defendants filed a praecipe for a rule to file a complaint. This was ignored and the judgment of non pros was entered two months later. Plaintiffs' counsel explains that the praecipe and rule to file a complaint were served at his office while he was recovering from illness and through secretarial oversight were not assigned to another attorney. Brief for Appellants at 6. This may explain a few days' delay, but without more precise facts as to counsel's absence from and return to his office, we are not convinced that this is excusable delay. This is particularly so in view of counsel's lack of diligence in pursuing the entire case, both from the point of view of the petition and of the original claim itself as to which no complaint has ever been filed.

Appellants' counsel in his brief alleges further error in the judge's disregarding a local rule, Luzerne County Common Pleas Rule 270. Brief for Appellants at 12-13. This rule provides in part:

"FAILURE TO ANSWER CALL OF LIST"

(F) Any case to which no answer is made at the time of call of the Argument List shall be marked "off list"."

Appellants' counsel misperceives the issue here involved. This was not a case where no answer was made at the time of the call of list. On the contrary, when appellants' case was called the answer supplied by appellants, through the Court Administrator, was a request for a further continuance. The lower court was fully informed of the position of the parties and was completely justified in its action.

The action of the learned judge was in full accord with both Pennsylvania Rules of Civil Procedure and the Luzerne County Common Pleas rules. We find no abuse of discretion in his action.

The Order of September 24, 1980 is affirmed.


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