Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil Division at No. 1631 February 1985.
Richard Morelli, Norristown, for appellant.
Frederick J. Stellato, Philadelphia, for appellees.
Kelly, Popovich and Hoffman, JJ.
[ 380 Pa. Super. Page 377]
This is an appeal from the judgment of non pros entered by the Court of Common Pleas of Philadelphia County against the appellant, Bernadette Potter, a/k/a Bernadette Brophy. We reverse.
The facts of record indicate that suit was commenced in this action by summons in February of 1985. On the face of the praecipe seeking issuance of the summons, as well as
[ 380 Pa. Super. Page 378]
the summons itself, appeared the language: "Jury Trial Demanded". No action was taken to file a complaint until October 6, 1987. In the interim, the case was listed in the Legal Intelligencer as a non-jury case. However, when the case was called for trial on or about March 24, 1987, the appellant's counsel failed to appear and a judgment of non pros was entered on the court's own motion. See Pa.R.Civ.P. 218.
On April 7, 1987, the appellant's counsel filed a petition seeking to have the case reinstated on the civil trial list. Counsel averred therein that "his staff" had failed to notify him of the case's listing for trial, and this caused him, "inadvertently[,] . . . [not] to respond to the Call of the List." (Paragraph 3) It was further asserted that the case was on the non-jury list because "a complaint had not been filed since the action had been commenced to toll the Statute of Limitations pending the discovery . . . process". (Paragraph 7)
The petition was granted, and the court noted on the face of the order that the matter was to be "placed on the CIVIL TRIAL LIST". The petition was "uncontested", since the defendants (Temple University Hospital, Charles R. Shuman, M.D. and Willis P. Maier, M.D.) had no attorney enter an appearance on their behalf until September 18, 1987.
On October 9, 1987, a complaint was filed by the appellant. Thereafter, by order dated October 14, 1987, a judgment of non pros was entered for the appellant's counsel's failure to appear at the call of the list for assignment to trial. On October 20th, a petition to have the case reinstated on the civil trial list was submitted by counsel for the appellant. He alleged that the "slowly arriving mail to his law office as a result of a three (3) day holiday weekend that extended to Monday, October 12, 1987," precluded the timely receipt of the Legal Intelligencer, and this impaired his staff's cognizance of the fact that he was scheduled to appear for trial on October 14, 1987. (Paragraph 2) As a result, according to counsel for the appellant, he was "not
[ 380 Pa. Super. Page 379]
notified by his staff and inadvertently failed to respond to the Call Of The List". (Paragraph 3)
Moreover, counsel for the appellant claimed that counsel for the defendants had an obligation to inform him of the October 14, 1987, call of the trial list. (Paragraph 6) Lastly, counsel contended that the case was "mistakenly listed on the non-jury trial list" for October 14, 1987, as compared to the jury trial list called for by the "reinstatement" order of the court dated May 12, 1987.
Counsel for the defendants filed a response to the appellant's reinstatement petition. He averred, in relevant part, that the case was listed in the Legal Intelligencer on the non-jury trial list "on each of those business days between October 5, 1987 and October 14, 1987. Moreover, the listing in The Legal Intelligencer, while naming counsel for [the appellant] by name, did not note defense counsel's name despite the fact that an appearance had been entered on September 15, 1987. Therefore, his name having not appeared with this case on the non-jury trial list, counsel for answering defendants was not aware that this case was on the non-jury trial list." (Paragraph 2)
Also, defendants' counsel urged that: "If in fact this matter was mistakenly listed on October 14, 1987 on the non-jury trial list, this is a mistake which plaintiff's counsel was well aware of, as the case had appeared previously on the non-jury trial list and judgment for non pros had been entered once before for ...