Pinsky v. Master
| Citation | 23 A.2d 727,343 Pa. 451 |
| Decision Date | 05 January 1942 |
| Docket Number | 239 |
| Parties | Pinsky, Appellant, v. Master, Admrx., et al |
| Court | United States State Supreme Court of Pennsylvania |
Argued December 2, 1941.
Appeal No. 239, Jan. T., 1941, from order of C.P. No. 7, Phila. Co June T., 1940, no. 515, in case of Anna Pinsky v. Jeanne Master, administratrix, et al. Order affirmed.
Trespass for personal injuries.
Rule to show cause why leave should not be granted to plaintiff to file a supplementary statement of claim against additional defendant, nunc pro tunc discharged, opinion by SLOANE, J Plaintiff appealed.
The order of the court below is affirmed at the costs of the appellant.
Leonard J. Schwartz, with him A. Alfred Wasserman, for appellant.
Thomas E. Comber, Jr., for appellee.
Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
The plaintiff began this action in trespass against the administratrix of the estate of Bernard A. Master, deceased and the defendant brought upon the record Goldstein's Fruit and Produce, Inc., and Vernon Ford, as additional defendants, under Rule No. 2252, Pennsylvania Rules of Civil Procedure. Thereupon, Goldstein's filed an answer which was served on plaintiff on August 2, 1941. Plaintiff failed to file a supplementary statement against Goldstein's within twenty days, as required by Rule No. 2258, Pa. R.C.P. [1] After six months, she petitioned the court below for leave to file nunc pro tunc a supplementary statement against Goldstein's Fruit and Produce, Inc., and Vernon Ford. The rule was discharged without prejudice to proceed against Ford, and the plaintiff has appealed. [2]
In her petition for relief, plaintiff alleged that "through a misunderstanding by Counsel for Plaintiff" the supplementary statement was not filed. The misunderstanding was not explained, but in the brief and on the oral argument counsel assumed full responsibility for his negligence in not filing the pleading.
It has been long a custom in Pennsylvania to grant relief from a judgment entered by default where the failure is due to a mistake or oversight of counsel and where application is promptly made and a reasonable excuse for the default offered: Fuel City Mfg. Co. v. Waynesburg Products Corp., 268 Pa. 441, 445, 112 A. 145; National Finance Corp. v. Bergdoll, 300 Pa. 540, 151 A. 12; Horning v. David, 137 Pa.Super. 252, 8 A.2d 729. Assuming, arguendo, that the court below had the power to relieve plaintiff from the default, and also assuming that the failure was chargeable to counsel alone, the fact remains that the relief sought was by way of grace and not of right. It follows that we may not reverse the court below unless there was a clear abuse of legal discretion.
The court below predicated its refusal to grant the relief on the grounds that the application was not made with reasonable promptness, that the rules have been in...
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Oppenheimer v. Shapiro
...the part of appellants' counsel, was conscionably moved to open the default judgment in aid of substantial justice. Cf. Pinsky v. Master, 343 Pa. 451, 23 A.2d 727, supra. In view of all the circumstances of this case, it cannot said that, as a matter of law, the court below clearly abused i......
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Baraonfski v. Malone
... ... without unreasonable delay or else the relief sought is ... barred by laches: Horn v. Witherspoon , 327 Pa. 295, ... 192 A. 654; Pinsky v. Master, Admrx ., 343 Pa. 451, ... 23 A.2d 727; Quaker City Chocolate & Confectionery Co. v ... Warnock Building Association , 347 Pa. 186, 190, ... ...
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...appellants possess a meritorious defense and (4) appellee would not be prejudiced by the opening of the judgment. In Pinsky v. Master, 343 Pa. 451, 452, 23 A.2d 727, 728, recognized as a leading case on the subject, it was said: 'It has been long a custom in Pennsylvania to grant relief fro......
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...such petition is promptly filed, and default reasonably explained or excused, and a defense shown to exist on the merits. Pinsky v. Master, 343 Pa. 451, 23 A.2d 727; City Mfg. Co. v. Waynesburg Products Corporation, 268 Pa. 441, 112 A. 145. We find all these conditions to be fulfilled in th......