No. 01443 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division at No. 75-8382.
Allen L. Feingold, Philadelphia, for appellant.
George H. Knoell, III, Norristown, for appellees.
McEwen, Del Sole and Popovich, JJ.
[ 336 Pa. Super. Page 587]
This is an appeal from the order of the Court of Common Pleas of Montgomery County denying the appellant's, Michael Griffin's, "Petition To Proceed In Forma Pauperis." We reverse.
The facts, in contrast to the conclusions of law to be drawn therefrom, are not in dispute and consist of the
[ 336 Pa. Super. Page 588]
following: In June of 1975, the appellant filed a complaint against the appellees (Carmen C. Tedesco and Rose Tedesco, individually, and t/a Cricket Bar, and Carmen J. Tedesco) for injuries sustained in an altercation at the appellees' place of business.
A default judgment was entered against the appellees, but thereafter, by agreement of all the parties, was lifted and the matter was placed on the August 1980 trial list. However, for failure on the part of the appellant to comply with appellees' request for discovery, a court order was entered precluding the appellant from introducing the information sought at trial, i.e., the appellant's medical records.
The case proceeded to trial in April of 1982, and, upon the appellees' motion, the court granted a compulsory non-suit for the appellant's "failure to set forth a cause of action in negligence and/or in intentional tort for assault and battery because of conflicts in [the appellant's] testimony which raised questions of credibility." (Lower Court Opinion at 2)
The appellant filed a timely motion to strike, set aside and vacate the compulsory non-suit. The matter was set down for argument. Prior thereto, the appellant filed a petition claiming that his "financial condition [rendered him] unable to pay the fees and costs of prosecuting this action, as well as the Notes of Testimony from the trial of this case." In particular, the petition recited that the appellant was employed and took home $860.00 per month. He had no other assets nor did his wife and two children (aged 12 and 18 months) have any other source of income. His debts and obligations were itemized as follows:
[ 336 Pa. Super. Page ...