Mazer v. Sargent Elec. Co.
| Decision Date | 17 April 1962 |
| Citation | 407 Pa. 169,180 A.2d 63 |
| Parties | Edwin J. MAZER, Appellant, v. SARGENT ELECTRIC COMPANY and General Electric Company, a New York Corporation, Appellees. |
| Court | Pennsylvania Supreme Court |
Harry Alan Sherman, Pittsburgh, for appellant.
Frederick N. Egler, Thomas J. Reinstadtler, Jr., Reed & Egler, David H Trushel, Dickie, McCamey Chilcote & Robinson, Pittsburgh, for appellees.
Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
This is an appeal from an order in the court below refusing to strike off judgments of non pros.
On January 4 1957, plaintiff, Edwin J. Mazer, while employed in the Homestead Plant of the United States Steel Corporation, was seriously injured when he suffered a severe electrica shock while removing the outer cover from the circuit-breaker of an electrical transformer.
On January 2, 1959, a praecipe for summons in trespass was filed by his then counsel, wherein the Sargent Electric Company and the General Electric Company were named defendants. No complaint was filed.
On February 13, 1959, the defendant, the General Electric Company, filed a praecipe for a rule upon the plaintiff to file the complaint in the action. Service was duly made on plaintiff's counsel. On March 19, 1959, the same defendant filed a second praecipe for a rule upon the plaintiff to file the complaint which was also served on plaintiff's counsel.
On April 10, 1959, the defendant, the Sargent Electric Company, secured a rule directed to the plaintiff to file a complaint, service of which was accepted by plaintiff's counsel.
On April 15, 1959, the complaint not having been filed, the defendant, the General Electric Company, caused a judgment of non pros to be entered record in its favor for failure to file a complaint. On October 30, 1959, the defendant, the Sargent Electric Company, caused a judgment of non pros to be entered of record in its favor. The then counsel for the plaintiff received almost immediate notice of the entry of these judgments.
On April 29, 1960, new counsel for the plaintiff filed a motion to strike off the judgment of non pros. Since the motion was not directed to defects in the record, the motion to strike was improper: Gilberton Coal Company v. Schuster, 403 Pa. 226, 169 A.2d 44 (1961). However, we will, as did the court below, consider the motion as a request to open the judgments.
Depositions were taken and filed. After argument, the court below refused to open the judgments. Plaintiff appeals.
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). The facts herein do not warrant any such conclusion.
The judgments involved were entered only after plaintiff's counsel was given repeated notices that the filing of the complaint was mandatory. These notices were ignored. Even after the judgments were entered, with plaintiff counsel's knowledge, there was a long delay before any relief was requested. In Hale v. Uhl, 293 Pa. 454, 457, 458 143 A. 115 (1928), this Court stated: ...
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