Alston v. Philadelphia Elec. Co.

• Decision Date: 28 January 1985
• Citation: 337 Pa.Super. 46,486 A.2d 473
• Parties: James ALSTON v. PHILADELPHIA ELECTRIC COMPANY, Appellant.
• Court: Pennsylvania Superior Court

Page 473

486 A.2d 473

337 Pa.Super. 46

James ALSTON v. PHILADELPHIA ELECTRIC COMPANY, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 6, 1984.

Filed Dec. 28, 1984.

Reargument Denied Jan. 28, 1985.

John J. Tinaglia, Philadelphia, for appellant.

Alan M. Feldman, Philadelphia, for appellee.

Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.

CIRILLO, Judge:

James Alston, appellee, suffered severe and permanent injury from third-degree burns sustained when his attempt to install a flagpole was abruptly curtailed by the pole's contact with high-tension wires owned by appellant, Philadelphia Electric Company. Appellee's case was dismissed for failure of his counsel, Stanley M. Poplow, to take action on his behalf from March 5, 1975, until January 2, 1979. On June 1, 1982, Mr. Poplow was discharged and new counsel retained. Appellee's present counsel, Alan M. Feldman, learned the procedural history of the case and filed a petition for reinstatement on June 16, 1982. The petition was granted by the court en banc on March 10, 1983. This appeal followed.

Appellant contends that the trial court en banc abused its discretion in granting appellee's petition. We affirm the trial court en banc. Given the compelling reason for counsel's neglect, we cannot deprive this litigant of his day in court.

It is well established that the trial court is vested with the equitable power to grant a petition to reinstate a cause of action if there is a showing of good cause for failure to prosecute. Good cause may be shown if the following conditions are satisfied:

(1) the petition has been promptly filed; (2) a meritorious defense can be shown; 3 (3) the failure to appear can be excused. A lower court's ruling opening or refusing to open will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Atlas Aluminum Corporation v. Methods Research Products Co., 420 Pa. 407, 218 A.2d 244 (1966); Walters v. Harleysville Mutual Casualty Co., 417 Pa. 438, 207 A.2d 852 (1965).

Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A.2d 128, 130-131 (1971). See also Robert W. Schultz v. Erie Insurance Exchange, --- Pa. ---, 477 A.2d 471 (1984); Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982); Queen City Electric Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980); McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Goldstein v Graduate Hospital of University of Pennsylvania, 441 Pa. 179, 272 A.2d 472 (1971); Stephens v. Bartholomew, 422 Pa. 311, 220 A.2d 617 (1966); Thorn v. Borough of Clearfield, 420 Pa. 584, 218 A.2d 298 (1966); Autologic Inc. v. Cristinzio Movers, --- Pa.Super. ---, 481 A.2d 1362 (1984); M.N.C. Corp. v. Mount Lebanon Medical Center, Inc., --- Pa.Super. ---, 483 A.2d 490 (1984); Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, 328 Pa.Super. 365, 477 A.2d 487 (1984); American Express Co. v. Burgis, 328 Pa.Super. 167, 476 A.2d 944 (1984); J. Rusiski v. M. Pribonic, 326 Pa.Super. 545, 474 A.2d 624 (1984); Steinberg v. Sears, Roebuck & Co., 325 Pa.Super. 189, 472 A.2d 1072 (1984); Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983); Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa.Super. 62, 462 A.2d 793 (1983); Snellbaker v. Herrmann, 315 Pa.Super. 520, 462 A.2d 713 (1983); First National Bank of Fryburg v. Kriebel, 311 Pa.Super. 428, 457 A.2d 961 (1983); Vorhauer v. Miller, 311 Pa.Super. 395, 457 A.2d 944 (1983); Paules v. Sminkey, 290 Pa.Super. 223, 434 A.2d 724 (1981); Lincoln Bank v. Kelly, 282 Pa.Super. 261, 422 A.2d 1106 (1980); Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 421 A.2d 810 (1980); Tenreed Corp. v. Philadelphia Folding Box Co., 256 Pa.Super. 49, 389 A.2d 594 (1978); Dupree v. Lee, 241 Pa.Super. 259, 361 A.2d 331 (1976); Hersch v. Clapper, 232 Pa.Super. 550, 335 A.2d 738 (1975); Johnson v. Mulhall, 230 Pa.Super. 183, 326 A.2d 439 (1974); Boyles v. Sullivan, 230 Pa.Super. 453, 326 A.2d 440 (1974); and Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 310 A.2d 301 (1973).

On January 2, 1979, the instant case was dismissed with prejudice pursuant to Philadelphia Local Rule 350(1), ¹ which provided that:

(1) Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary's Office for a period of two successive years, the action shall be dismissed with prejudice, for failure to prosecute, under the provisions of this rule, and the docket so marked, provided that no less than sixty days' notice be given by the publication once in The Legal Intelligencer.

(2) Whenever in a civil action a Praecipe or an Order for trial or a Certificate of Readiness has been filed, but thereafter no further action or any disposition has been noted on the docket in the Prothonotary's Office for a period of three successive years, the action shall be dismissed, with prejudice, for failure to prosecute under the provisions of this rule, and the docket so marked; provided that no less than six months' advance notice thereof be given by publication once in The Legal Intelligencer.

(3) Dismissal under (1) or (2) is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal within three (3) months of the date of dismissal.

Although the rule provided that reinstatement is possible within three months following dismissal, the court could exercise its discretion and consider applications for reinstatement as timely filed after this three-month period had lapsed.

In assessing the trial court's exercise of its equitable power to open a default judgment, the timeliness of the petition is measured in terms of the reasonableness of the explanation given for the delay, not the fact or length of the delay itself.

The crucial factor in determining whether the petition is timely is not the specific time which has elapsed, but the reasonableness of the explanation given for the delay. Jamestown Banking Co. v. Conneaut Lake Dock & Dredge Co., 339 Pa. 26, 14 A.2d 325 (1940). There is no time limit on the exercise of the power of a court to open judgment by confession, Windber Trust Co. v. Evans, 192 Pa.Super. 417, 421, 161 A.2d 664, 666 (1960), and the chancellor's determination as to reasonableness, absent clear and manifest abuse of discretion, will not be disturbed. Equibank, N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981).

Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 301-302, 456 A.2d 136, 140 (1982) (emphasis supplied). Accord, Tony Palermo Construction v. Brown, 326 Pa.Super. 566, 474 A.2d 635 (1984).

Thus, although in the instant case the time period between the dismissal of the action pursuant to Pa.R.C.P. 236 on May 17, 1979, and the petition for reinstatement on June 16, 1982, was lengthy, it is neither dispositive nor relevant to the issue on review. The determinative factor is the reasonableness of the explanation for the delay. Appellant alleged that the reason for the delay was counsel's mental and emotional disturbance. A three-judge court en banc heard the argument and granted the petition for reinstatement. An en banc court's finding of facts are controlling on appeal and will not be disturbed in the absence of manifest error. Rusiski v. Pribonic, supra.

Counsel for appellant at the time the action was dismissed was Stanley M. Poplow, Esq. With regard to the case at bar, depositions were taken of Dr. Donald L. Nathanson, M.D., Mr. Poplow's psychiatrist, and of Harold J. Byron, M.D., a psychiatrist for appellant. Dr. Nathanson testified that Mr. Poplow suffered from cycles of depression and mania which rendered him incapable of performing in his capacity as an attorney for periods of time. He has been taking significant doses of lithium and vivactyl for and indicia of his depression and suicidal impulses for approximately nine years. The prognosis for his condition was guarded. His illness manifested itself in a paralytic depressive state which negated action on behalf of his clients. The trial court regarded this testimony, as well as the testimony of the appellant's psychiatrist, Dr. Harold J. Byron, as a reasonable explanation for the delay in this case.

Dr. Byron, who testified for the appellant, also testified that Mr. Poplow's condition made it impossible for him to fulfill his professional duties. He stated:

Based on the history given of depression over the past eight years which has been sustained although of intermittent severity with suicidal ideation, a diagnosis of major affective disorder unipolar depression seems appropriate. The treatment he is receiving from a reputable physician; namely, Vivactyl the most potent of the tricyclic antidepressants, with a large dose of Lithium Carbonate, supports this diagnosis since these drugs would not be properly prescribed for anything other than a major affective disorder. I believe his Diabetes Mellitis, which must be of at least moderate severity to justify a program of insulin management, may well contribute to his affective disorder which is generally believed to have at least some biogenetic factor in its etiology. This is further supported by his description of his father who would seem to have been subject to recurrent depressions.

I believe the explanation for his procrastination and failure to fulfill his professional responsibilities must include some influence of his depressive illness. Although I believe his psychiatric illness must have an effect upon his productivity, I am not able to say to what degree his ability to exercise free will is compromised by his illness although I believe that his depression has caused some impairment of his freedom of choice and there is clearly a self-destructive pattern in his behavior.

(Emphasis supplied).

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