Appeal from the Final Order of August 14, 1987, of Superior Court in No. 3031 Philadelphia 1986, Denying REargument of Appeal from Order of October 27, 1986, of the Court of Common Pleas of Philadelphia County in No. 3893, January Term, 1986, Affirmed in the Superior Court by Order of June 12, 1987. Pa. Superior Ct. , A.2d (1987).
Philip J. Berg, Lafayette Hill, for appellants.
Stephen R. Harris, Keith R. Dutill, Philadelphia, for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., and Stout, former Justice, did not participate in the decision of this case. Flaherty, McDermott and Zappala, JJ., concur in the result.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
This is an appeal by Kyung Ha Jung and Sung M. Jung, Appellants, from an order of the Superior Court which affirmed the Order of the Court of Common Pleas of Philadelphia County denying Appellants' Petition to Open Judgment of Non Pros. The issues presented are whether the trial court abused its discretion in refusing to open the judgment, and whether the Superior Court's affirmance was inconsistent with its own precedent as well as precedent of this Court. For the following reasons we reverse.
The facts underlying this case are as follows. Plaintiffs-Appellants Kyung Ha Jung and Sung M. Jung instituted an action in trespass against St. Paul's Parish and Archdiocese of Philadelphia on January 24, 1986. The action was instituted to recover damages for personal injuries sustained by Appellant Kyung Ha Jung as the result of a fall on an icy parking lot of Appellee St. Paul's Parish in Norristown, Pennsylvania. Appellee Archdiocese of Philadelphia was joined in the suit as owner of the realty of St. Paul's Parish.
On July 9, 1986, Appellees' counsel filed a Form Praecipe for Rule to File Complaint within twenty days or suffer
judgment of non pros. A blank copy of this form was mailed to Appellants' attorney's office accompanied by a letter dated July 9, 1986.*fn1 While the Praecipe was signed by John P. O'Dea, Esquire, the Rule itself was neither signed nor stamped by anyone on behalf of the Prothonotary nor was the Rule itself dated. Also, it came in a package along with two discovery requests for documents and interrogatories. Because no date of filing was shown on the Rule and because no date was stated in the accompanying letter, Appellants' attorney's secretary could not determine when an answer to the Rule was required. As a consequence she did not enter a due date into the tickler file which counsel utilized to keep track of his work. Appellants' counsel did not learn of this error until Friday, August 1st, when counsel's secretary informed him of their receipt of a letter dated July 31, 1986, from Attorney Stephen Harris stating that a Praecipe for Entry of Judgment of Non Pros had been filed with the Prothonotary on July 30, 1986. (See R.R. at 90a).
There had been no communication by telephone or otherwise between the respective counsel between the receipt of the letter of July 9, 1986 and the letter of July 30, 1986. Exactly twenty days after the filing of the Praecipe for Rule to File a Complaint, Appellees' counsel filed a Praecipe for Entry of Judgment of Non Pros; judgment was entered on that date. On August 1, following receipt of letter enclosing Praecipe for Entry of Judgment of Non Pros, Appellants' counsel immediately attempted to telephone both John P. O'Dea, Esquire, and Stephen R. Harris, Esquire, at the office of Stradley, Ronon, Stevens & Young,
and he was advised that both attorneys were on vacation and would not return until Monday, August 4th. On Monday, August 4, 1986, Appellants' counsel again immediately telephoned the Appellees' attorneys and reached Stephen R. Harris, Esquire. Counsel explained to him how he had not been aware or had knowledge of the Rule to File Complaint and requested that he voluntarily agree by Stipulation to Open the Judgment of Non Pros. Mr. Harris advised Appellants' counsel that he would review the matter. During this same conversation, Appellants' counsel asked Appellees' counsel if he would have granted an extension of time to file the Complaint if Appellants' counsel had been aware of the Rule. Defense counsel said "yes" he would have agreed.
The complaint was promptly filed on Monday, August 4, 1986, and Appellants' counsel hand delivered a timestamped copy of the complaint to Stephen R. Harris, Esquire, with a ...