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ALVIRA BOTTERO v. GREAT ATLANTIC & PACIFIC TEA COMPANY (07/01/83)

filed: July 1, 1983.

ALVIRA BOTTERO, APPELLANT,
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. AND ABE GREENBERG, AND IVYRIDGE INVESTMENT CORPORATION



No. 3130 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division at No. 3905 December Term, 1978.

COUNSEL

Julius E. Fioravanti, Philadelphia, for appellant.

James C. Stroud, Philadelphia, for appellees.

Hester, Johnson and Popovich, JJ. Johnson, J., concurs in the result.

Author: Popovich

[ 316 Pa. Super. Page 64]

This is an appeal from an order of the trial court denying a petition to open judgment which was filed by appellant, Alvira Bottero.*fn1 We affirm.

The facts in this case are as follows:

Appellant-plaintiff filed a summons in trespass on December 22, 1978, after she had fallen in a shopping center which was owned by two of the defendants, Abe Greenberg and Ivy Ridge Investment Corporation. Appellee-defendant, The Great Atlantic & Pacific Tea Company, Inc. (A & P) rented one of the stores in the shopping center, and appellant fell some distance from the A & P store.

Appellant served notice on A & P; however, no service was effectuated on the other two defendants. Approximately a year and a half later, on April 29, 1980, appellee filed a rule on appellant to file a complaint. However, no complaint was filed. Six weeks later, on July 8, 1980, a non pros was entered against appellant for failing to file a complaint.

Over one year later, on October 14, 1981, appellant filed a petition to open judgment. However, before appellant filed the petition, another procedural scenario developed. On or

[ 316 Pa. Super. Page 65]

    about October 15, 1980, the trial court denied appellant's request to extend the time for filing a certificate of readiness. The trial court ordered the certificate to be filed no later than October 30, 1980. On October 21, 1980, appellant filed a certificate of readiness even though neither a complaint had been filed nor had service been effectuated on the remaining two defendants. Approximately ten months later, the matter was assigned to arbitration and listed for an arbitration hearing. The hearing never was held because no complaint had been filed and judgment of non pros already had been entered. This appeal followed.

Appellant does not dispute the fact that notice was given. Rather, appellant argues that the trial court abused its discretion when it refused to open the judgment of non pros because no further notice of intent to enter the judgment was given, because the default and delay was excused by counsel's illness and personal problems, and because counsel immediately attempted to negotiate the opening of the default judgment. We reject appellant's contentions.

In determining whether a court has ruled properly on a petition to open judgment, we have said the following:

"A petition to open a judgment is an appeal to the court's equitable powers and is a matter for judicial discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Hamborsky v. Magyar Presbyterian Church [78 Pa. Super. 519], supra. In considering a petition to open a judgment, the court may consider matters dehors the record. See Matlock v. Lipare, 243 Pa. Super. 167, 170-71, 364 A.2d 503, 504 (1976)."

Kophazy v. Kophazy, 279 Pa. Super. 373, 375, 421 A.2d ...


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