Matyas v. Albert Einstein Medical Center

• Citation: 225 Pa.Super. 230,310 A.2d 301
• Parties: John MATYAS, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, and Dr. David Tuckman, Additional Defendant, Appellees.
• Decision Date: 19 September 1973
• Court: Superior Court of Pennsylvania

Page 301

310 A.2d 301

225 Pa.Super. 230

John MATYAS, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, and Dr. David Tuckman, Additional Defendant, Appellees.

Superior Court of Pennsylvania.

Sept. 19, 1973.

Petition for Allowance of Appeal Denied Feb. 15, 1974.

Robert A. Ebenstein, Philadelphia, for appellant.

James J. McEldrew, Philadelphia for Dr. David Tuckman. (Albert Einstein Medical Center), Charles Jay Bogdanoff, Philadelphia, for appellees.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and SPAETH, JJ.

CERCONE, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying plaintiff's petition to open a judgment non pros. From September 22, 1964, to November 11, 1964, plaintiff was a patient in the defendant's hospital, the Albert Einstein Medical Center. On August 9, 1966, plaintiff initiated a malpractice suit alleging that during his stay in the hospital defendant negligently caused injuries to his leg. The hospital then joined plaintiff's doctor, Dr. David Tuckman, as an additional defendant, who then filed interrogatories directed to plaintiff with notice to answer with 20 days. Plaintiff failed to answer these interrogatories and on July 17, 1967, the lower court entered an order directing plaintiff to answer these interrogatories within 30 days and if 'plaintiff fails to comply with this order, the prothonotary is to enter judgment non pros Against the plaintiff upon the filing of a praecipe by the additional defendant.' (emphasis supplied).

After the 30 day period elapsed additional defendant took judgment of non pros against the plaintiff on a praecipe filed pursuant to the court order. The plaintiff's attorney then contacted the attorneys for the additional defendant requesting that they file a modified praecipe which would change the judgment of non pros against the plaintiff to a more limited judgment of non pros against the plaintiff in favor of the additional defendant only. ¹ Although a copy of the proposed praecipe was sent to plaintiff, a praecipe to this effect was never filed with the court by counsel for additional defendant. Now, more than five years later, plaintiff seeks to open this judgment of non pros on the ground that he mistakenly assumed that counsel for both parties had taken care of this matter.

A petition to open a judgment is an appeal to the equitable side of the court and a disposition of the petition will not be disturbed on appeal unless a mistake of law on a clear abuse of discretion is shown. Crisculo v. Moore Farms Inc., 222 Pa.Super. 323, 294 A.2d 895 (1972); Taylor v. Humble Oil and Refining Co., 221 Pa.Super. 394, 292 A.2d 481 (1972); Walters v. Harleysville Mutual Cas. Co., 417 Pa. 438, 207 A.2d 852 (1965). It is settled law that judicial discretion opening a judgment of non pros will be exercised only when three factors co-exist: (1) the petition must be promptly filed; (2) the failure to go forward with the action i.e. the default, is satisfactorily excused or explained, (3) that facts constituting grounds for a cause of action be alleged. Goldstein v. Graduate Hospital, 441 Pa. 179, 272 A.2d 472 (1971), Thorn v. Clearfield Boro, 420 Pa. 584, 218 A.2d 298 (1966). Plaintiff has failed to meet the first two of these three requirements.

Plaintiff does not reasonably explain the five year delay between entry of the judgment of non pros and the filing of this petition to open except to say that he assumed that the original judgment of non pros against him in favor of both defendants had been substituted by an amended judgment of non pros against him in favor of the additional defendant only. Such reliance was factually and legally unwarranted. Looking to the language of the lower court's order entered on July 17, 1967, it contained the warning that a judgment of non pros would be...