Opinion
November 17, 1961.
January 2, 1962.
Practice — Judgment of non pros — Refusal to remove — Court below — Discretion — Appellate review.
In this action of trespass to recover damages for personal injuries, in which it appeared that a summons was issued on July 23, 1958 and on August 22, 1958 defendant ruled plaintiff to file a complaint and, no complaint having been filed, entered a judgment of non pros on December 4, 1958; that thereafter on December 29, 1960 plaintiff filed a petition to remove the non pros which was denied by the court below on the ground that the application was not made with reasonable promptness and because of the absence of compelling equities, it was Held that (1) the grant or refusal of the petition was within the discretion of the court below and (2) the court below did not abuse its legal discretion.
Mr. Justice MUSMANNO dissented.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and ALPERN, JJ.
Appeal, No. 254, Jan. T., 1961, from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1958, No. 2044, in case of Howard Brigham v. Eglin's of Philadelphia, Inc. et al. Order affirmed; reargument refused January 17, 1962.
Petition to remove judgment of non pros.
Order entered dismissing petition, opinion by GUERIN, J. Plaintiff appealed.
Joseph R. Siegert, with him Joseph Patrick Gorham, for appellant.
Ralph S. Croskey, with him Frederick W. Anton, III, for appellee.
James M. Marsh, with him LaBrum and Doak, for Josephine Deutsch, appellee.
The narrow question this appeal presents is: Whether or not the lower court abused its legal discretion in refusing to remove a judgment of non pros? We conclude it did not.
The action involved sought recovery of damages for personal injuries allegedly suffered by the plaintiff when struck by an automobile owned by the defendant, Jacqueline Deutsch, and operated by an employee of the defendant, Eglin's of Philadelphia, Inc. The accident occurred on May 23, 1958. Suit was instituted by the issuance of a summons on July 23, 1958. The defendant Eglin's ruled plaintiff to file a complaint on August 22, 1958. The plaintiff served interrogatories on defendant Deutsch, on September 17, 1958. Defendant Deutsch responded to plaintiff's interrogatories by filing preliminary objections raising questions of jurisdiction, venue and service. No action on these objections followed until January 23, 1961. The plaintiff never filed his complaint. Defendant Eglin's entered a judgment of non pros on December 4, 1958.
Although, this is not part of the record, defendant's counsel has attached to his printed brief copies of two letters (one dated August 13, 1958, and another dated August 22, 1958) addressed to plaintiff's counsel requesting the filing of the complaint and notifying him that judgment of non pros would be entered if it were not done.
More than two years later, on December 29, 1960, plaintiff's counsel filed a petition to remove the non pros, alleging that because of incorrect notations inadvertently made in plaintiff-counsel's office control system, it was erroneously assumed that the complaint had been filed. The lower court refused the request. This appeal followed.
The relief sought of the court below was by way of grace and not of right. Its grant or refusal was within the discretion of that tribunal. On appeal, we may not reverse unless there was a clear abuse of discretion: Pinsky v. Master, 343 Pa. 451, 23 A.2d 727 (1942).
The court below predicated its refusal to grant the relief requested on the ground that the application was not made with reasonable promptness and because of the absence of compelling equities. As pointed out in Baraonfski v. Malone, 371 Pa. 479, 91 A.2d 908 (1952), although a court has the power to open a default judgment after the expiration of the term in which it was entered, the application for that purpose must be made without unreasonable delay or else the relief sought is barred by laches.
The matter presented was peculiarly for the lower court's decision and the record does not disclose an abuse of legal discretion.
Order affirmed.
Mr. Justice MVSMANNO dissents.