Johnson v. Mulhall

• Decision Date: 23 September 1974
• Citation: 326 A.2d 439,230 Pa.Super. 183
• Parties: Nora JOHNSON, Appellant, v. Christine MULHALL.
• Court: Pennsylvania Superior Court

326 A.2d 439

230 Pa.Super. 183

Nora JOHNSON, Appellant, v. Christine MULHALL.

Superior Court of Pennsylvania.

September 23, 1974.

Samuel Merovitz, Philadelphia, for appellant.

Marjorie A. Weiss, Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

WATKINS President Judge.

This is an appeal from the order of the Court of Common Pleas, Trial Division, Law, of Philadelphia County denying a motion by the appellant to open a judgment of non pros.

The appellant, Nora, Johnson, commenced an action in trespass by filing a complaint on April 2, 1970. The complaint was reinstated twice and finally served on the appellees, Christine Mulhall, through the Secretary of the Commonwealth, on November 18, 1970. The appellee's counsel entered his appearance on December 3, 1970 and filed and served interrogatories upon the appellant. No answers to the interrogatories were forthcoming and the appellee moved for sanctions against the appellant on September 25, 1972. On November 28, 1972, the court below ordered the appellant to answer interrogatories within forty-five (45) days or suffer a judgment of non pros. The appellant failed to comply with this order within the time specified and the court below, within the discretionary powers granted by Pennsylvania Rule of Civil Procedure 4019, 12 P.S. Appendix, directed the Prothonotary to enter the judgment of no pros, now the subject of this appeal.

The petition for opening judgment is, of course, an appeal to the equitable powers of the court, but a judgment will not be disturbed on appeal unless a mistake of law or a clear abuse of discretion is shown. Criscuolo v. Moore Farms Inc., 222 Pa.Super. 323, 294 A.2d 895 (1972). The opening of a judgment will not be exercised unless three factors co-exist: (1) the petition must be promptly filed; (2) the failure to go forward with the action, in this case, the failure to file answers to interrogatories, i.e., the default, is satisfactorily excused or explained; (3) the facts constituting grounds for a cause of action be alleged. Goldstein v. Graduate Hospital of the Univ. of Pa., 441 Pa. 179, 272 A.2d 472 (1971).

Clearly, in this case, the petition to open was filed promptly. However the second requirement has not been met. His excuse for failure to answer the interrogatories ordered by the court amounted to simple neglect or forgetfulness. In Spilove v. Cross Transportation, Inc., 223 Pa.Super. 143, 297 A.2d 155 (1972), and Seltzer v. Ashton Hall Nursing and Convalescent Home, 221 Pa.Super. 127, 289 A.2d 207 (1972), this Court discussed the question of...