Marmara v. RawleMarmara v. Rawle
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This case involves two appeals, each of which raises questions with respect to separate sections of the same order of the court below. Appeal No. 1655, brought by Karla Marmara and her guardian Edwin Marmara, challenges the propriety of an order entered by the lower court on April 27, 1977, which granted a petition to open filed by Dr. Mario Cirelli and the Police Fireman and Park Police Medical Association, Inc., (Medical Association). 1 Appeal No. 1633, brought by James Rawle, Jr., and his wife, Jeanette, challenges the propriety of a different section of the same order which granted appellee Hunter Construction Company’s (Hunter’s) petition for reconsideration, sustained Hunter’s preliminary objections, and dismissed the Rawles’ complaint against Hunter. We affirm the lower court’s order.
Oh August 2, 1972, the Marmaras filed a complaint in trespass against the Rawles, Dr. Cirelli and the Medical Association. The complaint requested damages for injuries received by minor Karla Marmara on August 8,1970, when a glass door shattered after being contacted by her. The accident occurred in the home of James and Jeanette Rawle during a period when the house was in darkness, allegedly because of an overloading of the electrical circuits. The complaint alleged that the Rawles were negligent in permitting an overloading of electrical circuits, and in maintaining in their home a glass door that was not tempered. The complaint also alleged that Dr. Cirelli, a member of the Medical Association at the time, was negligent in his treatment of Karla Marmara’s injuries.
Counsel for the Marmaras and the Rawles entered into a stipulation on March 19, 1973. This stipulation, which was approved by the court below, granted the Rawles an extension of thirty days in which to join additional defendants. Pursuant thereto, the Rawles filed a complaint against Doric Manufacturing Company (Doric) — the company which allegedly manufactured and distributed the “defective” glass
Doric and Valley Bow filed preliminary objections in July of 1973, alleging that their joinder occurred substantially after the sixty-day requirement of
Appeal No. 1655
On April 4, 1973, eight months after the initial complaint was filed, appellants Karla and Edwin Marmara filed a praecipe for entry of default judgment against appellees Dr. Cirelli and the Medical Association, and judgment was entered that same day. The lower court, in entering the order, cited appellees’ failure to enter an appearance. In January of 1974, counsel for appellants agreed to enter into a stipulation allowing judgment to be opened, provided that appellees entered an appearance by February 4, 1974, and that they pay the costs of opening the judgment. Counsel for appellees entered an appearance on January 31, 1974. A stipulation to open judgment was drafted by appellees’ attorney and circulated to all counsel involved in the case. All parties signed the stipulation (including appellants’ counsel), except counsel for Hunter. Instead of signing the stipulation and then filing it as counsel for Hunter was requested to do, no action was taken. The stipulation was never filed. Appellees assumed that the stipulation to open
On appeal, appellants contend that the lower court abused its discretion when it granted appellees’ petition to open judgment. Appellants cite cases dealing with the standard for opening a default judgment. However, since this case involves a stipulation signed by counsel for appellants and appellees, our analysis must, out of necessity, focus on that agreement and the effect to be given thereto. The validity of the stipulation, as discussed below, eliminates the necessity of any traditional analysis with respect to the opening of default judgments. Viewed in this light, we find that the stipulation to open judgment, which was signed by all parties to the instant appeal, should be given effect, and therefore, the court below was correct in granting appellees’ petition to open judgment.
A petition to open is an appeal to the lower court’s equitable powers, and is a matter for judicial discretion. An appellate court will not reverse a lower court ruling on a petition to open a default judgment unless there was an error of law or a clear abuse of discretion. Maruccio v. Houdaille Industries, Inc., 254 Pa.Super. 560, 386 A.2d 91 (1978). “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will as shown by the evidence or the record, discretion is abused.” Maruccio v. Houdaille Industries, Inc., supra, 254 Pa.Super. at 562, 386 A.2d 93, n. 1, quoting Man O’War Racing Assn., Inc. v. State Horse Racing Comm., 433 Pa. 432, 451, n. 10, 250 A.2d 172, 181, n. 10 (1969).
It has been held that “any legitimate agreement between [attorneys] is sacrosanct and should be observed without equivocation.” In re Pittsburgh Rys. Co., et al., 121 F.Supp. 948, 949 (W.D.Pa.1954). Indeed, “[t]he total weight accorded by courts to private agreements between counsel is too well established to be doubted.” Starner v. Wirth, 440 Pa. 177, 183, 269 A.2d 674, 677 (1970). It is also axiomatic that parties may bind themselves by stipulations so long as they do not affect the jurisdiction of the court, and provided that the stipulations are not in contravention of peremptory statutory requirements.
“It may, therefore, be stated as the settled law and practice in Pennsylvania, that whatever does not effect the jurisdiction, or due order of business and convenience of the court is capable of arrangement between the parties or their counsel, and an agreement by them will become the law of the case.” Foley Brothers, Inc. v. Commonwealth, 400 Pa. 584, 589, 163 A.2d 80, 84 (1960) quoting Muir v. Preferred Accident Ins. Co., 203 Pa. 338, 53 A. 158 (1902).
Under the circumstances of the instant appeal, we find no manifest abuse of discretion. See Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Campell, et al. v. Heilman Homes, Inc., 233 Pa.Super. 366, 335 A.2d 371 (1975); Kilgallen v. Kutna, 226 Pa.Super. 323, 310 A.2d 396 (1973). It was the initiative of appellants’ counsel that brought the stipulation agreement into being, yet it was this same counsel who later sought to negate its effect. The agreement entered into by counsel of both appellants and appellees was valid; there is no indication on the record that now any more appreciable prejudice would result to appellants than enforcement of the agreement at its inception would have entailed. As such, the lower court was justified in upholding the agreement, and we cannot now rule that such a holding constitutes a misapplication of the law.
Therefore, the order of the court below granting appellees’ petition to open is affirmed.
Appeal No. 1633
The facts pertinent to our consideration to the appeal at No. 1633 are as follows. Valley Bow, additional defendant named in the complaint of James and Jeanette Rawle, filed preliminary objections alleging that its joinder occurred substantially after the sixty-day requirement of
In appeal No. 1633, appellants James Rawle, Jr., and his wife Jeanette challenge the validity of that part of the lower court’s order of April 27, 1977, which granted appellee Hunter’s petition for reconsideration, sustained appellee’s preliminary objections, and dismissed appellants’ complaint against it. Since the fact situation supporting appellee’s objection was, for all intents and purposes, identical to that factual situation upon which Judge Harry A. Takiff had earlier sustained the preliminary objections of an additional defendant to the complaint, i. e. Valley Bow, 5 we hold that Judge Greenberg was correct in granting appellee’s petition for reconsideration, and in making a ruling on appellee’s preliminary objections which was in accord with Judge Takiff’s earlier ruling in the same case. The fact that appellant took no appeal from Judge Takiff s rulings as to Valley Bow and Doric lends weight to this conclusion. We, therefore, affirm the order of the court below in the instant appeal.
On appeal, appellants contend that appellee’s petition for reconsideration was untimely because it was not filed within the time limits of
Therefore, we affirm the order of the court below granting appellee’s petition for reconsideration, sustaining appellee’s preliminary objections, and dismissing appellants’ complaint against appellee.
Notes
. James and Jeanette Rawle also raised- this contention in their appeal at No. 1633.
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“Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.”
. Appellees had changed counsel in the interim.
. Assumpsit actions present the additional requirement that the party seeking to open judgment must present a meritorious defense. See Ruczynski v. Jesray Construction Corp., 457 Pa. 510, 326 A.2d 326 (1974); Maruccio v. Houdailie Industries, Inc., supra.
. Doric Manufacturing Company, another additional defendant to appellants’ complaint, filed preliminary objections in July of 1973 which also raised the issues of late joinder and resulting prejudice by not being able to participate in discovery proceedings. However, these objections were not ruled on by the lower court until March 4, 1974, a date beyond the initial ruling on appellee’s preliminary objections.
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“A petition for a rehearing shall set forth the special matter or cause for which such rehearing is sought. The petition for rehearing shall be filed within a reasonable time after the discovery of the grounds for rehearing and in no event later than the time for taking an appeal.”