Marie E. LEWIS et al. v. Joseph REID et al., Appellants.
366 A.2d 923
Superior Court of Pennsylvania.
Decided April 22, 1976.
On Reargument Dec. 20, 1976.
Argued Sept. 10, 1975.
Charles S. Lieberman, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
CERCONE, Judge:
This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting the plaintiffs’ (appellees herein) motion to set aside a judgment of non pros which was originally entered as a result of plaintiffs’ failure to answer supplemental interrogatories.
The litigation arose as a result of an automobile accident in which the plaintiffs, while passengers in a vehicle owned by the defendant, Discount Rent-N-Drive Systems, Inc., and operated by defendant Reid, were injured when their vehicle was involved in a collision with the automobile of defendant Fisher. Suit was instituted by summons on September 21, 1965, and the complaint was subsequently filed on March 15, 1966.
Thereafter, the case lay virtually dormant for over four years1 until July 8, 1974, when the plaintiffs filed a petition to “strike open”2 the judgment of non pros.
On November 15, 1974, the deposition of plaintiffs’ counsel, Malcolm P. Rosenberg, Esquire, was taken in support of the petition to “strike open.”
By order of December 9, 1974, the instant case as well as twelve others in which judgments of non pros had been entered against a number of plaintiffs represented by Attorney Rosenberg were consolidated for argument and assigned to the Honorable Stanley M. Greenberg. On May 14, 1975, Judge Greenberg ordered that the judgment of non pros in the instant case, as in the others, be set aside. This appeal followed.3
Instantly, we are constrained to conclude that the appellees have failed to satisfy the first two of these three requirements. Accordingly, the lower court abused its discretion in opening the judgment.
In attempting to excuse both their lack of diligence in filing a petition to open and their failure to timely answer the supplemental interrogatories, the appellees have offered one explanation. In this regard, the appellees’ attorney, Malcolm P. Rosenberg, testified that it was through his neglect alone that both the interrogatories were not timely answered and the petition to open was not filed until over four years after the judgment was entered. The appellees contend, however, that Attorney Rosenberg‘s negligence was excusable in light of the un
“Counsel revealed that his marital relationship began deteriorating in 1966, and became progressively weaker through 1967. While he had hoped that his wife‘s pregnancy in 1968 would help improve their marriage, her giving birth to a daughter with a severe birth defect made matters even worse. This child has been hospitalized for lengthy periods of time and has already undergone several major operations, including ones on her brain and spine, and to date, she still requires constant care and treatment. Counsel was frequently required to leave the office to attend to his daughter as his wife was unable to accept their child and unwilling to care for her. This led to great conflicts between them, which resulted in severe marital stress and emotional problems for both of them, such that each sought professional treatment. Their marriage finally ended in divorce and a long and bitter battle over custody of their children ensued.
“Counsel testified that because of these occurrences and the severe emotional strain that he underwent, not only was he unable to perform the legal work required in many of the cases in which he had been retained, but he was unable to realize how he was jeopardizing his clients’ cases as well as his own career. As these problems lessened and as counsel recovered from the mental and emotional strain caused by them, he became aware that he had ignored his duties to his clients and took steps to correct matters, among which was the filing of the petition to ‘Strike/Open’ in this case and in twelve other cases where judgments of non pros had also been entered.”
While Mr. Rosenberg‘s domestic problems were most unfortunate, we do not believe that under the cir
In Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966) the Supreme Court held that the lower court
At first blush, it would appear that the same “equitable considerations” which motivated the Court to set aside the judgment in Thorn, are present in the instant appeal. That is not the case however. In Thorn the attorney was not physically capable of performing all of his professional duties. In the case at bar, while we do not wish to minimize Attorney Rosenberg‘s unfortunate plight, we cannot ignore the fact that he was not incapacitated by personal illness. Furthermore, in Thorn the Court noted that the petition to open was timely filed. In the present case the petition to open was not filed until over four years after the judgment of non pros was docketed. This certainly cannot be considered timely.
In addition, the Court in Thorn felt that the petitioners had no way of knowing their case was not being diligently prosecuted and should not be denied their day in court because of their attorney‘s ill health. With respect to the instant appeal, we believe it would be unrealistic to hold that the appellees had no way of knowing their suit was not being diligently pursued where almost five years elapsed from the institution of the suit until the
Finally, as previously alluded to, we believe the lower court abused its discretion in holding that the petition to open was timely filed. To explain the more than four year delay in filing their petition to open, the appellees have submitted the same explanation they offered for their failure to file answers to the supplemental interrogatories, viz., the personal problems of their counsel. This explanation is unacceptable for the same reasons we noted in rejecting the appellees’ explanation as to why the answers to the supplemental interrogatories were not seasonably filed. Furthermore, on at least two occasions, September 30, 1971, and late 1972, Attorney Rosenberg met with appellants’ counsel concerning Mr. Rosenberg‘s intent to institute proceedings to set aside the judgment. Nevertheless, Mr. Rosenberg did not file the petition to open until July 8, 1974. Further indication of Mr. Rosenberg‘s awareness and contact with the instant case is evidenced by his filing of the suggestion of death as to the plaintiff Margaret Cochran on July 24, 1973. Despite his obvious awareness of the necessity to take prompt action, Mr. Rosenberg again failed to do so. Notwithstanding our sympathy for Mr. Rosenberg‘s personal plight, we cannot in good conscience accept his excuse for these delays.
In the final analysis then, we conclude that, despite Mr. Rosenberg‘s personal hardships, the lower court abused its discretion in opening the judgment of non pros in view of the fact that Mr. Rosenberg maintained a functioning law practice throughout the course of his personal problems and, furthermore, was obviously aware of the status of the instant case.
While we are not unmindful of the consequences of our decision for the appellees, we cannot ignore the implicit prejudice visited upon the appellants by opening a judg
Order reversed.
HOFFMAN, J., files a concurring opinion.
SPAETH, J., files a dissenting opinion, in which PRICE, J., joins.
HOFFMAN, Judge (concurring):
I join in the majority‘s disposition of the instant case. However, considerable confusion has resulted in this area because two lines of cases involving judgments of non pros have developed. I take this opportunity to identify the applicability of each.
The first line of cases declares that “[a] lower court properly enters a judgment of non pros ‘when a party to the proceedings has shown a want of due diligence in failing to proceed with reasonable promptitude, and there is no compelling reason for the delay, and the delay has caused some prejudice to the adverse party . . .’ James Bros. Co. v. Union Banking Co. of Dubois, 432 Pa. 129, 132, 247 A.2d 587 (1968).” Kennedy v. The Bulletin Company, 237 Pa.Super. 66, 68, 346 A.2d 343, 344, 345 (1975). See also, Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112, 228 A.2d 732 (1967); Aldridge v. Great Atlantic & Pacific Tea Company, 394 Pa. 57, 145 A.2d 695 (1958); Rizzo v. Pittsburgh Railways Company, 226 Pa.Super. 566, 323 A.2d 174 (1974); Poluka v. Cole, 222 Pa.Super. 500, 205 A.2d 132 (1972). The second line of cases states that the criteria for opening a judgment of non pros are “(1) the petition should be timely filed; (2) the reason for the default reasonably explained or excused; (3) that facts constituting grounds for a cause of action be alleged.’ Thorn v. Clearfield Borough, 420 Pa. 584, 586, 218 A.2d 298, 299 (1966).” Goldstein v. Graduate Hospital of The University of Pennsylvania, 441 Pa. 179, 182, 272 A.2d 472, 473 (1971). See also, Mazer v. Sargent Electric
A judgment of non pros will be entered in two basic situations. First, a judgment of non pros may be imposed as a sanction pursuant to the rules of civil procedure. See
A judgment of non pros may also be entered when the plaintiff has failed to prosecute his action within a reasonable time. In order to demonstrate that he is entitled to a judgment of non pros under these circumstances, the defendant must not only show a want of due diligence in the prosecution of the action, but also that he has suffered prejudice as a result of the delay. See, e. g., Gal-
In the instant case, the judgment of non pros was entered as a sanction for not answering the supplemental interrogatories. Thus, the appellant was not required to demonstrate prejudice in order to secure the judgment of non pros. In determining whether this judgment should be opened, therefore, prejudice is not a relevant factor. Because the majority correctly applied the principles governing the opening of judgments, I concur.
SPAETH, Judge (dissenting):
One way a judgment of non pros may come before this court is on appeal from the judgment. This occurs when the plaintiff has failed to move the case to trial, and after a long wait, the defendant moves for and is granted judgment of non pros. Kennedy v. Bulletin Company, 237 Pa.Super. 66, 346 A.2d 343 (1975), is a good example. There, “the [defendant] answered the [plaintiff‘s] interrogatories in 1968, and by so doing, indicated a willingness to try the case on the merits at that time. The [plaintiff], however, took no action until December 6, 1973 [when she filed a certificate of readiness].” Id. at 71, 346 A.2d at 346. The defendant filed a petition for rule to show cause why judgment of non pros should not be entered, the lower court entered the judgment, and the plaintiff appealed to this court.
Judge HOFFMAN states in his concurring opinion that we are to apply different rules, according to which way the judgment of non pros comes before us. If it comes before us in the first way—on appeal from the judgment—we are to look to see whether the defendant has suffered prejudice, but if in the second way—on appeal from denial of petition to open—we are not to concern ourselves with prejudice. The reason for this difference, he suggests, is that in the first way, “[p]rejudice is a prerequisite to securing a judgment of non pros . . . .“, whereas in the second way, “the judgment of non pros was entered as a sanction . . . .” 244 Pa.Super. at —, 366 A.2d at 928.
I am not persuaded that there are these two different rules. The essence of a sanction is that it is punishment. In considering whether to inflict punishment, one always asks what harm has been done, which is simply another way of saying, one asks what prejudice the other party has suffered. Not to ask this question would lead to an
The true principle, I suggest, is that in any case involving a judgment of non pros, whatever the procedure that preceded the judgment, the decision whether to let the judgment stand should be made according to general principles of equity. This conclusion, moreover, is supported by the cases, when they are closely read. While it is true that cases such as Thorn v. Clearfield Borough, supra, and Boyles v. Sullivan, supra, do not say that prejudice is a relevant factor, neither do they say, as Judge Hoffman‘s opinion does, that “prejudice is not a relevant factor.” They simply do not mention prejudice at all. However, the principle applied is that “[a] petition to open a judgment is an appeal to the equitable side of the court, and the petition must establish equitable considerations which convince the court that the parties could best be served by the striking of the judgment.” Thorn v. Clearfield Borough, supra at 585, 218 A.2d at 298. In “establish[ing] equitable considerations,” it is always necessary to ask what prejudice the other party has suffered. Thorn, in fact, is somewhat similar to the present case, for it involved an attorney whose ability to
Accordingly, I think the majority has correctly looked to see if there is prejudice. My disagreement is with the majority‘s statement that it “cannot ignore the implicit prejudice visited upon the appellants” by opening the judgment. I do not know what “implicit prejudice” means. If it refers to delay, it is not convincing; delay generally helps a defendant. In any event, the lower court “note[d] that the [appellants] have not produced any evidence which would show that they have been prejudiced in any manner by this delay.” In these circumstances, I would remand for further proceedings. If appellants can show prejudice, very well; but if they cannot, I think the balance of equitable considerations tips in appellees’ favor—at least, I would find no abuse of discretion on the part of the lower court in so concluding—and I would allow the order granting the petition to open to stand.
PRICE, J., joins in this opinion.