Lewis v. Reid

• Decision Date: 22 April 1976
• Citation: 366 A.2d 923,244 Pa.Super. 76
• Parties: Marle E. LEWIS et al. v. Joseph REID et al., Appellants.
• Court: Pennsylvania Superior Court

Page 923

366 A.2d 923

244 Pa.Super. 76

Marle E. LEWIS et al. v. Joseph REID et al., Appellants.

Superior Court of Pennsylvania.

April 22, 1976.

On Reargument Dec. 20, 1976.

[244 Pa.Super. 78] James J. McEldrew, Philadelphia, for appellant.

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 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.

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.

On November 13, 1969, the defendants filed supplemental interrogatories to the plaintiffs. Having failed to receive timely answers to these interrogatories, the defendants filed a motion for sanctions on March 3, 1970. By order on March 17, 1970, the plaintiffs were directed to answer the supplemental interrogatories within ninety (90) days or suffer a judgment of non pros. On June 26, 1970, a judgment of non pros was entered against the plaintiffs for failing to comply with the aforesaid order of March 17, 1970.

Thereafter, the case lay virtually dormant for over four years ¹ 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

A petition to open a judgment is addressed to the quitable powers of the court. Johnson v. Mulhall, 230 Pa.Super. 183, 326 A.2d 439 (1974); Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 310 A.2d 301 (1973). Accordingly, our Supreme Court has stated that: 'A request to open a judgment of non pros is by way of grace and not of right. Its grant or refusal is peculiarly a matter for the lower court's discretion. An appellate court may not reverse the lower court's ruling unless an abuse of discretion is clearly evident: Brigham v. Elgin's of Phila., 406 Pa. 99, 176 A.2d 404 (1962).' Mazer v. Sargent Electric Co., 407 Pa. 169, 171, 180 A.2d 63, 64 (1962). A court will not exercise its discretion and open a judgment of non pros unless three factors coalesce: (1) a petition to open the judgment must be promptly filed; (2) there must be a reasonable explanation or excuse for the default; and (3) facts constituting grounds for a cause of action must be alleged. Goldstein v. Graduate Hospital of The U. of Pa., supra; Thorn v. Clearfield Borough, 420 Pa. 584, 278 A.2d 298 (1966); White v. Alstom, 231 Pa.Super. 438, 331 A.2d 765 (1974); Matyas v. Albert Einstein Medical Center, supra.

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 unfortunate and continuous personal tragedies he endured for almost eight years. The opinion of the lower court, in pertinent part, discusses Attorney Rosenberg's tragic domestic problems as follows:

'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 occurrence 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 circumstances this excuses his failure to answer the supplemental interrogatories. A period of approximately seven months expired from the date the supplemental interrogatories were filed until the judgment of non pros was entered on June 26, 1970. The appellees concede that most of the information necessary to answer the interrogatories was in Mr. Rosenberg's possession during this seven month period. Appellees further acknowledge that it would have been a simple task for Mr. Rosenberg to have the information in his possession typed up into answers to the interrogatories and have his secretary file them with the Prothonotary's Office. Nonetheless appellees contend that because of Mr. Rosenberg's severe domestic problems he was not capable of even delegating this routine task to his secretary. It is our opinion, however, that if Mr. Rosenberg's personal problems were so all consuming then it was his obligation to take reasonable measures to protect the rights of his clients. Unfortunately, Mr. Rosenberg did not inform his clients of his dilemma; nor did he associate himself with another attorney until February of 1974; and he never advised his clients to In Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966) the Supreme Court held that the lower court abused its discretion in refusing to open a judgment of non pros which was entered four months after the plaintiffs had been ruled to file a complaint. In reversing the lower court, the Supreme Court noted that the plaintiff's attorney suffered a heart relapse within two weeks after he was served with a praecipe to file a complaint. Testimony by the attorney's physician established that although the attorney did perform some professional tasks during the four month period prior to the entry of judgment, he was physically incapable of performing all of his duties. On these facts, the Court held 'that the diminished health and ability of appellants' attorney, followed by his death, are equitable considerations sufficient to set aside a judgment of non pros, and reasonably explain the reason for the delay in filing the complaint.' Supra at 587.

engage other counsel. Furthermore, Mr. Rosenberg's failure to diligently prosecute the instant action can hardly be dismissed as excusable neglect where the record reveals that throughout the duration of his personal hardships, including the seven months the answers to the interrogatories were outstanding, he continued to maintain a functioning law practice. Indeed, Mr. Rosenberg testified that during the entire course of his personal problems he accepted new clients, instituted and tried suits in Philadelphia and surrounding counties, negotiated settlements, accepted fees, etc. In view of the continuing nature of Mr. Rosenberg's overall law practice, we believe it was an abuse of discretion to excuse his failure to timely proceed with the instant action, despite his personal problems.

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...