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HENRY BUXBAUM AND GRACE BUXBAUM v. FEDERICO A. PEGUERO (11/09/84)

filed: November 9, 1984.

HENRY BUXBAUM AND GRACE BUXBAUM, IN HER OWN RIGHT
v.
FEDERICO A. PEGUERO, M.D. AND FEDERICO A. PEGUERO, M.D., P.A., A CORPORATION, THOMAS JAVIAN, M.D. AND THOMAS JAVIAN ASSOCIATES, INC., A CORPORATION AND DELAWARE VALLEY MEDICAL CENTER. APPEAL OF FEDERICO A. PEGUERO, M.D. AND FEDERICO A. PEGUERO, M.D., P.A., A CORPORATION. HENRY BUXBAUM AND GRACE BUXBAUM, H/W, IN HER OWN RIGHT V. FEDERICO A. PEGUERO, M.D. AND FEDERICO A. PEGUERO, M.D., P.A., A CORPORATION, AND THOMAS JAVIAN, JR., M.D. AND THOMAS A. JAVIAN, JR., M.D. & ASSOCIATES, INC., A CORP. AND DELAWARE VALLEY MEDICAL CENTER, INC., A CORP. APPEAL OF THOMAS A. JAVIAN, JR., M.D. AND THOMAS A. JAVIAN, JR., M.D. AND ASSOCIATES, INC.



No. 2516 Philadelphia, 1982, No. 2517 Philadelphia, 1982, Appeals from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 574 April Term. 1982.

COUNSEL

Bernard W. Smalley, Philadelphia, for Peguero, appellants (at No. 2516) and appellees (at No. 2517).

Fredric L. Goldfein, Philadelphia, for Javian, appellants (at No. 2517) and appellees (at No. 2516).

Carl M. Mazzocone, Philadelphia, for Buxbaum, appellees.

Cavanaugh, Wieand and Cirillo, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Wieand

[ 335 Pa. Super. Page 291]

These are appeals from an order opening a judgment of non pros entered in a medical malpractice case after plaintiffs had failed to file a complaint within twenty days following service of a rule directing them to do so. Our examination of the record fails to reveal an abuse of discretion by the trial court. Therefore, we affirm.

The action was commenced by Henry and Grace Buxbaum who caused a writ of summons to issue naming Doctors Federico A. Peguero and Thomas A. Javian, Jr., and their respective professional corporations, as well as Delaware Valley Medical Center, Inc., as defendants.*fn1 The summons was served on Dr. Javian and his corporation on April 15, 1982 and on Dr. Peguero's corporation on April 17, 1982. Dr. Peguero, however, was not served personally until June 1, 1982. On April 20, 1982, a rule to plead was served upon the plaintiffs on behalf of Dr. Javian and his corporation. The rule was filed in the prothonotary's office

[ 335 Pa. Super. Page 292]

    on April 26. A similar rule on behalf of Dr. Peguero was served on the plaintiffs on April 29 and filed the following day.*fn2 When a complaint was not filed in accordance with the rule, judgments of non pros were entered in favor of Dr. Peguero and his corporation on May 25 and in favor of Dr. Javian and his corporation on May 26, 1982. A petition to open or strike these judgments was filed by the plaintiffs on May 28, 1982. After the trial court had opened the judgments of non pros, separate appeals were filed by the physician defendants and their corporations and consolidated for argument before this Court.

"A Petition to Open a judgment of non pros is addressed to the equitable powers of the court. It is a request to open a judgment of non pros by way of grace and not of right. Its grant or refusal is within the [trial] court's discretion, which will not be reversed on appeal absent a showing of abuse of discretion." Walker v. Pugliese, 317 Pa. Super. 595, 599, 464 A.2d 482, 484 (1983). See also: Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa. Super. 62, 64, 462 A.2d 793, 795 (1983); Hutchings v. Trent, 304 Pa. Super. 376, 378, 450 A.2d 729, 730 (1982); Kophazy v. Kophazy, 279 Pa. Super. 373, 375, 421 A.2d 246, 247 (1980); Thompson v. Hahn Motors, Inc., 269 Pa. Super. 271, 273, 409 A.2d 884, 885 (1979). In general, a judgment of non pros will not be opened unless three factors coalesce: "1) the petition must be timely filed; 2) the reason for the default must be reasonably explained or excused; and 3) the facts constituting grounds for the cause of action must be alleged." Vorhauer v. Miller, 311 Pa. Super. 395, 401, 457 A.2d 944, 948 (1983). See also: Wurster v. Peters, 318 Pa. Super. 46, 49, 464 A.2d 510, 511 (1983); Chaplynsky v. Broad Street Hospital, 305 Pa. Super. 497, 501, 451 A.2d 757, 759 (1982); Stawiarski v. Hall, 300 Pa. Super. 67, 70, 445 A.2d 1302, 1303 (1982); Kennedy v. Board of Supervisors,

[ 335 Pa. Super. Page 293243]

Pa. Super. 46, 52, 364 A.2d 442, 445 (1976). There is no dispute that the appellee-plaintiffs in this case have satisfied the first and third requirements. The only issue on appeal is whether the trial court properly concluded that appellees had reasonably ...


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