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filed: April 8, 1988.


Appeal from the Order of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 3851 May Term, 1983.


Allan Molotsky, Philadelphia, for appellant.

Donald E. Matusow, Philadelphia, for appellee.

Cirillo, President Judge, and Brosky and Beck, JJ.

Author: Brosky

[ 373 Pa. Super. Page 378]

This is an appeal from the order of June 5, 1987, entered on June 10, 1987, which vacated a judgment of non pros which had previously been entered in appellant's favor on April 2, 1987. Appellant now contends that the vacation of non pros was error. We do not support this view. For reasons stated infra, we affirm.

The matter arises from a medical malpractice suit which was filed by appellee, Quadralane Nivens, on behalf of her minor son, John Nivens, against appellant, Chestnut Hill Hospital, in May of 1983. After four (4) years of pre-trial

[ 373 Pa. Super. Page 379]

    discovery, the case made its first appearance on the major jury trial list in the March 17, 1987 edition of Philadelphia's Legal Intelligencer. The case moved into the top ten (10) on March 27, 1987, and was called for trial. Neither counsel for appellant, nor counsel for appellee, was present at the call of the list, and, in accordance with Pa.R.C.P. 218, a judgment of non pros was entered against appellee Nivens and in favor of the appellant-hospital on the court's own motion. Appellee's counsel received notice of the entry of non pros on April 1, 1987, and promptly filed, on April 8, a motion to vacate the judgment of non pros. Appellant responded, and, on June 5, 1987, the trial court vacated non pros, and directed that the case be relisted for trial. This timely appeal followed.

A petition to open a judgment of non pros is addressed to the court's equitable power, and the exercise of those powers will not be disturbed absent an abuse of discretion. Hutchison v. Hutchison, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged. Toczylowski v. General Bindery Co., 359 Pa. Super. 572, 577, 519 A.2d 500, 503 (1986); Horan v. R.S. Cook and Associates, Inc., 287 Pa. Super. 265, 268, 430 A.2d 278, 279 (1981); Corcoran v. Fiorentino, 277 Pa. Super. 256, 260, 419 A.2d 759, 761 (1980); Dupree v. Lee, 241 Pa. Super. 259, 262, 361 A.2d 331, 333 (1976).

With regard to the initial criterion, the timeliness with which vacation is attempted, there is no dispute between the parties that the motion to vacate was filed expeditiously. It is the second and third criteria that appellant maintains were not satisfied.

With respect to the second criterion, the trial court found a reasonable excuse for the failure of appellee's counsel to appear at the call of the list, and based its finding upon the

[ 373 Pa. Super. Page 380]

    following "Notice to the Bar", which has appeared in some form or other in the Legal Intelligencer since January 2, 1987:*fn1

(a) if the counsel ready to proceed to trial represents the plaintiff, the case will not proceed to trial;

(b) if the counsel ready to proceed represents the defendant, plaintiff's case will not be dismissed.

Conversely, if the party appearing has given notice to the opposing party, the case will proceed in the absence of the opposing party. (If you believe that the opposing party will deny receiving such notice, a certified letter or receipt of notice may be advisable.)" (Emphasis supplied.)

The trial court focused upon the failure of appellant's counsel to contact his opposition, as required by the above notice, to confirm the case's status, and, citing our Court's decision in Toczylowski, supra, made the following observations:

[ 373 Pa. Super. Page 381]

On the other hand, this Court's policy of confirming a case's status "represents a proper, dignified and courteous procedure consistent with the standards which are appropriate for the legal profession," Cleary v. Paul, 15 Phila. 546, to which the majority of attorneys adhere. Id. at 545. Some attorneys view a failure to appear in court as an opportunity to benefit from a judgment of non pros. This Court believes that the failure to communicate with opposing counsel to confirm the status of the case represents a derelict act which is no less serious than the failure to adequately monitor the published trial list. For this reason, the defendant should not benefit from a non pros so entered . . . ." (Emphasis supplied.)

The trial court thus concluded that the absence of appellee's counsel from the call was reasonably excused by his failure to receive prior notice from appellant's counsel. Appellant now contends that the trial court's reading of Toczylowski is flawed, and is requesting, in essence, a clarification of Toczylowski in light of the new Philadelphia notice policy: it is appellant's position that the failure of its counsel to give the required prior notice to opposing counsel should be immaterial, in light of Toczylowski's clear dictates that all Philadelphia trial practitioners must monitor the trial lists in the Intelligencer, and that the failure of appellee's counsel to appear, hence, was unreasonable per se. We decline, however, to resolve this precise issue, as we find Toczylowski factually distinguishable, thereby obviating any need for a reconciliation, at this time, of Philadelphia's new policy with that decision.

In Toczylowski, counsel for appellee had not appeared at the call of the list, due to her failure to monitor the major jury trial listings in the Intelligencer. Appellant's counsel had been present, however, and had requested the entry of non pros. Toczylowski, supra, 359 Pa. Superior Ct. at 576-577, 519 A.2d at 502.

In the matter sub judice, by contrast, appellant's counsel did not request the non pros, but, rather, due to his own failure to monitor the daily trial list, also missed the

[ 373 Pa. Super. Page 382]

    listing of this case, and failed to appear when the case was called for trial. Non pros was entered upon the court's own motion, and not as the result of diligent representation by appellant's counsel. Hence, we are confronted with a situation wherein appellant is insisting that Toczylowski be strictly enforced against its opponent, while ignoring the negligent non-compliance of its own counsel with that decision's requirements.

A petition to vacate a judgment of non pros is addressed to a trial court's equitable powers; where the trial court has vacated non pros, an appellate court will not reverse unless a manifest abuse of discretion, or clear error of law, in its consideration of the three criteria for vacation, has occurred. See Geyer v. Steinbronn, 351 Pa. Super. 536, 506 A.2d 901 (1986); see also Buxbaum v. Peguero, 335 Pa. Super. 289, 293, 484 A.2d 137, 139 (1984). Moreover, we may affirm the trial court if its decision was correct on any ground. Butler v. DeLuca, 329 Pa. Super. 383, 389, 478 A.2d 840, 843 (1984). We now hold, without relying upon the reason given by the trial court, i.e. the failure of appellant's counsel to follow the new Philadelphia notice policy, that, where a party acts promptly to vacate a non pros which has been entered on the court's own motion, due to the failure of both sides to appear, the trial court may, as an equitable matter, hold that the moving party's failure to strictly conform to the Toczylowski requirements for diligent representation, in the face of an innocent oversight, is reasonably excused where the opposing party has displayed a similar lack of due diligence by failing to monitor the list and appear at the same call.*fn2 Where neither party is prepared to go forward, as here, neither should be permitted to profit from an innocent, albeit negligent, comedy of errors.*fn3 It has been established law in this Commonwealth

[ 373 Pa. Super. Page 383]

    that an innocent oversight by counsel may justify the vacation of non pros.*fn4 See Buxbaum, supra, 335 Pa. Superior Ct. at 295, 484 A.2d at 140.

Moving, then, to the third criterion, appellant contends that appellee's motion to vacate failed to provide facts constituting grounds for a cause of action. The trial court opinion contains no discussion of the third criterion. However, our review of appellee's motion indicates that the cause of action is a medical malpractice case, in which it is alleged that minor-plaintiff John Nivens suffered brain damage due to trauma to which he was negligently subjected at birth, at the hands of the defendant-hospital.

Appellant does not assert that such facts, if true, would not provide the basis for a cause of action, but contends that appellee's failure to date to either identify any expert, or detail the theory of any expert, precludes any finding that the third criterion for vacation has been met, as appellee's

[ 373 Pa. Super. Page 384]

    case would have been non-suited had trial proceeded. While we do not deny that appellant might eventually be awarded a non-suit, we find no case support for the proposition that a moving party cannot satisfy the third criterion for vacation in the absence of proof that he would have been able to successfully oppose a motion for non-suit had trial proceeded; the law would only appear to require allegations of fact that facially state a cause of action. We find appellant's allegations to be sufficient on their face to support the vacation of non pros.

Order affirmed.

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