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.
[ 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 ...