No. 2334 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 368 September Term 1981
James C. Stroud, Philadelphia, for appellants.
Joseph Feldman, Philadelphia, for appellee.
Wickersham, Montemuro and Montgomery, JJ.
[ 330 Pa. Super. Page 52]
This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting appellee's petition to remove a judgment of non pros.
On September 9, 1981, Margaret Perri, appellee herein, filed a writ of summons in trespass in the Court of Common Pleas of Philadelphia County. Served as defendants were Broad Street Hospital, Eugene Spitz, M.D., appellants herein, and Max Karpin, M.D.*fn1 On November 4, 1981, appellants filed and served on appellee a rule to file a complaint. Shortly thereafter, counsel for appellee telephoned counsel for appellants and requested and was granted an extension of time to December 31, 1981 to file the complaint. On January 8, 1982, when the complaint had still not been filed, a judgment of non pros was entered against appellee. Counsel for appellee received notice of the entry of judgment on the following day.
On January 14, 1982, appellee filed a petition to open the judgment of non pros, alleging that her counsel had been out of the country from November 17, 1981 until January 4, 1982 in celebration of his eightieth birthday. Upon his return, counsel was involved in an unrelated trial and was unable to file the complaint in appellee's case, even though it was allegedly prepared and ready to be filed when he received notice of the judgment entered against appellee. The petition to open alleged that appellee had a meritorious case against all the defendants because she had sustained permanent injuries and had incurred extensive medical and hospital expenses, presumably at their hands. Appellants filed an answer to the petition admitting the chronology of events and extension of time to December 31, 1981, but denying or demanding proof of the reason the complaint was not filed on time and of whether a meritorious case existed.
On February 11, 1982, the lower court ordered appellee to take depositions, pursuant to Pa.R.C.P. No. 209,*fn2 on all
[ 330 Pa. Super. Page 53]
disputed factual issues, including the reasons appellee failed to file her complaint in a timely manner. No such depositions were ever taken. On July 15, 1982, the lower court entered an order granting the petition to remove the judgment of non pros, from which order appellants timely filed this appeal.
Appellants raise two questions before us:
I. Did the court below commit an error of law by opening the judgment of non pros where [appellee] failed to (1) prove the reason for her failure to file the complaint, reasonably explained or excused, and failed to (2) ...