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ANN B. ESSLINGER v. SUN REFINING AND MARKETING COMPANY (10/28/88)

filed: October 28, 1988.

ANN B. ESSLINGER, ADMINISTRATRIX OF, FOR AND ON BEHALF OF THE ESTATE OF JAMES E. ESSLINGER, DECEASED, FOR THE MAINTENANCE OF AN ACTION UNDER THE PENNSYLVANIA SURVIVAL STATUTE AND ANN B. ESSLINGER, ADMINISTRATRIX OF THE ESTATE OF JAMES E. ESSLINGER, DECEASED, FOR AND ON BEHALF OF ALL ENTITLED TO RECOVER UNDER THE PENNSYLVANIA WRONGFUL DEATH STATUTE, APPELLANT,
v.
SUN REFINING AND MARKETING COMPANY, A CORP. OF THE COMMONWEALTH OF PENNSYLVANIA; CARL E. WIDELL & SON, INC., A CORP. OF NEW JERSEY; THE MILWHITE CO., INC., A CORP. OF THE STATE OF TEXAS; MAX B. MILLER & CO., INC., A CORP. OF DELAWARE; SUN COMPANY, INC., A CORP. OF DELAWARE; SUN COMPANY, INC., A CORP. OF THE COMMONWEALTH OF PENNSYLVANIA; SUN OIL COMPANY, A CORP. OF DELAWARE; SUN EXPLORATION AND PRODUCTION COMPANY OF PENNSYLVANIA, INC., A CORP. OF THE COMMONWEALTH OF PENNSYLVANIA; SUN EXPLORATION AND PRODUCTION COMPANY, A CORP. OF DELAWARE; FREDERICK BAKER, INDIVIDUALLY AND T/A BAKER CONSTRUCTION COMPANY AND BAKER CONSTRUCTION COMPANY; E.I. DUPONT DENEMOURS & COMPANY; COYNE INTERNATIONAL ENTERPRISES CORP.; WORKRITE UNIFORM COMPANY, AND RUBIN BROTHERS, INC.; ANN B. ESSLINGER, ADMINISTRATRIX OF, FOR AND ON BEHALF OF THE ESTATE OF JAMES E. ESSLINGER, DECEASED, FOR THE MAINTENANCE OF AN ACTION UNDER THE PENNSYLVANIA SURVIVAL STATUTE AND ANN B. ESSLINGER, ADMINISTRATRIX OF THE ESTATE OF JAMES E. ESSLINGER, DECEASED, FOR AND ON BEHALF OF ALL ENTITLED TO RECOVER UNDER THE PENNSYLVANIA WRONGFUL DEATH STATUTE, V. SUN REFINING AND MARKETING COMPANY, A CORPORATION OF THE COMMONWEALTH OF PENNSYLVANIA, C/O C.T. CORPORATION SYSTEMS; CARL E. WIDELL & SON, INC., A CORPORATION OF THE STATE OF NEW JERSEY; THE MILWHITE CO., INC., A CORPORATION OF THE STATE OF TEXAS; MAX B. MILLER & CO., INC., A CORPORATION OF THE STATE OF DELAWARE; SUN COMPANY, INC., A CORPORATION OF THE STATE OF DELAWARE; SUN COMPANY, INC., A CORPORATION OF THE STATE OF PENNSYLVANIA; SUN OIL COMPANY, A CORPORATION OF THE STATE OF DELAWARE; SUN EXPLORATION AND PRODUCTION COMPANY OF PENNSYLVANIA, INC., A CORPORATION OF THE STATE OF PENNSYLVANIA; SUN EXPLORATION AND PRODUCTION COMPANY, A CORPORATION OF THE STATE OF DELAWARE; FREDERICK BAKER, INDIVIDUALLY AND T/A BAKER CONSTRUCTION COMPANY AND BAKER CONSTRUCTION COMPANY; E.I. DUPONT DENEMOURS & COMPANY C/O C.T. CORPORATION; COYNE INTERNATIONAL ENTERPRISES CORPORATION; WORKRITE UNIFORM COMPANY; AND RUBIN BROTHERS, INC. APPEAL OF FREDERICK K. BAKER, INDIVIDUALLY AND T/A BAKER CONSTRUCTION AND BAKER CONSTRUCTION COMPANY



Appeal from Order entered April 8, 1987, in the Court of Common Pleas of Delaware County, Civil Division, No. 85-4515

COUNSEL

Susan Danielski and Christopher C. Fallon, Jr., Philadelphia, for Esslinger, appellant.

William E. Gordon, Jr., Wilmington, for Dupont, appellee.

William F. Hosten, II, Media, and Gary S. Seflin, Philadelphia, for Baker, appellant and appellee.

George J. McConchie, Media, for Workrite, appellee.

Alan Belfus, Philadelphia, for Coyne, appellee.

Thomas R. Harrington, Philadelphia, for Rubin, appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Olszewski

[ 379 Pa. Super. Page 72]

Appellant Frederick Baker, individually and t/a Baker Construction and Baker Construction Company (hereinafter "Baker"), appeals from an order granting appellant Ann B. Esslinger's (hereinafter "Esslinger") petition to open judgment of non pros. Esslinger cross-appeals from the trial court's denial of her motion to strike the judgment of non pros. We affirm.

On April 1, 1985, Esslinger, Administratrix of the Estate of James E. Esslinger, filed a praecipe for summons against various defendants including Baker. Esslinger commenced this action as a consequence of the injuries sustained by and the resultant death of James Esslinger in an explosion and fire at the Tin Refinery on March 22, 1983. On August 29, 1985, Baker filed a document captioned as "Rule to File Complaint" wherein Baker sought to have a Rule entered upon Esslinger to file a complaint within twenty (20) days or suffer a judgment of non pros. Subsequently, on December 17, 1985, a praecipe to enter judgment of non pros was filed on behalf of Baker. A notation on the record indicates that notice pursuant to Pa.R.Civ.P. 236 was given.

On March 5, 1987, plaintiff filed a petition to open or strike the judgment of non pros. An amended petition was

[ 379 Pa. Super. Page 73]

    filed on March 9, 1987. Following the filing of answers to the petition, the trial court granted the petition to open the judgment and denied the petition to strike. Esslinger filed a complaint on April 20, 1987. A timely appeal from the order granting the petition to open was filed by Baker on May 8, 1987, no. 1508 Philadelphia 1987. Esslinger then filed the appeal listed at no. 1375 Philadelphia 1987 from the order denying her petition to strike the judgment.

Baker asserts that the trial court abused its discretion in opening the judgment of non pros. A petition to open a judgment of non pros is directed to the equitable powers of the court Geyer v. Steinbronn, 351 Pa. Super. 536, 506 A.2d 901 (1986). The decision to grant or refuse a petition to open a judgment of non pros rests within the discretion of the trial court, and its decision will not be ...


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