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CASIMIR TOCZYLOWSKI v. GENERAL BINDERY CO. AND CITY PHILADELPHIA AND JOSEPH KOTS. APPEAL JOSEPH KOTS (12/29/86)

filed: December 29, 1986.

CASIMIR TOCZYLOWSKI
v.
GENERAL BINDERY CO. AND CITY OF PHILADELPHIA AND JOSEPH KOTS. APPEAL OF JOSEPH KOTS



Appeal from the Order of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 802 January Term, 1982.

COUNSEL

Claudia M. Tesoro, Assistant City Solicitor, Philadelphia, for appellant.

John F. Dougherty, Jr., Philadelphia, for General Bindery Co.

Lloyd George Parry, Philadelphia, for appellee.

Cavanaugh, Brosky, and Montemuro, JJ. Montemuro, J., files a dissenting statement.

Author: Brosky

[ 359 Pa. Super. Page 574]

This is an appeal taken from the entry of an order on March 10, 1986*fn1 vacating judgment of non pros. Appellant contends that the trial court abused its discretion in so vacating, alleging: (1) that the ninety-seven (97) day filing delay between the entry of non pros and the petition to vacate was never reasonably explained, making the petition untimely; (2) that the failure of appellee's former counsel to appear at the Philadelphia call of the list, which resulted in the entry of non pros, was unreasonable; and (3) that the facts alleged in support of appellee's cause of action were legally insufficient to support vacation of non pros.

Upon review of the record, we are in agreement with appellant that the behavior of appellee's former counsel, with respect to (1) and (2) above, was not reasonably explained, and, as such, we now reverse the trial court and reinstate the judgment of non pros.

Appellee's original complaint was filed as a major jury*fn2 defamation action on January 7, 1982, naming General Bindery Co., Inc., the City of Philadelphia, and Joseph Kots (herein "appellant") as party defendants. During the pleadings stage, both the City of Philadelphia and appellant Kots

[ 359 Pa. Super. Page 575]

    filed preliminary objections, and an amended complaint was filed.*fn3 The City of Philadelphia's preliminary objections were granted, but appellant Kots' were denied; Kots then filed an answer.

According to the docket entries, the last action taken connected to this claim, by any party, was in December, 1982. The case was then silent until July 7, 1985, when a letter was dispatched to appellee's former counsel from the court administrator's office in Philadelphia, stating, in relevant part:

Dear Counselor,

It is contemplated that the above case will be assigned for trial on the individual judge program in the very near future.

Accordingly, it will be necessary for you as counsel for plaintiff, to fill out and return the enclosed information sheet no later than two (2) weeks from this date.

Very truly yours,

Harry A. ...


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