Scharfman v. Philadelphia Transp. Co.
| Decision Date | 24 June 1975 |
| Citation | 340 A.2d 539,234 Pa.Super. 563 |
| Parties | Richard SCHARFMAN v. PHILADELPHIA TRANSPORTATION CO., Appellant. |
| Court | Pennsylvania Superior Court |
James D. McCrudden, Lewis H. Van Dusen Philadelphia, for appellant.
Abraham J. Golden, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
The appellant contends that the court below improperly refused to grant its petition to open judgment which had been entered as a sanction for failure to file answers to interrogatories.
The complicated procedural history of this case may be summarized as follows: The plaintiff-appellee initiated this action on November 16, 1966, by filing a complaint in trespass alleging injuries suffered as a result of the appellant's negligence. The appellant did not file an answer, but an appearance in its behalf was entered by Lynwood F. Blount Esquire, on December 1, 1966. Subsequently, both parties filed and answered interrogatires. On September 25, 1969, the appellee filed a certificate of readiness, requesting that the trial be non-jury. The docket reveals that the appellee filed supplemental interrogatories, which were forwarded to the appellant's attorney, Mr. Blount, on December 28 1970. The interrogatories were never answered. Mr. Blount withdrew from the case on March 30, 1971, and on the same day, the appellant's present attorney entered an appearance.
The appellee continued to send requests for answers to the supplemental interrogatories to Mr. Blount. When no response was forthcoming, the appellee filed a motion for sanctions. [1] On June 25, 1971 Judge Hirsh granted the appellee's motion. Pursuant to Rule 4019(c)(3) of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix, he ordered that judgment be entered in favor of the appellee and that the trial proceed only on the issue of damages. See Isenberger v. Schumann, 415 Pa. 217, 203 A.2d 136 (1964); Spilove v. Cross Transportation, Inc., 223 Pa.Super. 143, 297 A.2d 155 (1972). On December 15, 1971, the appellee filed a petition to open the judgment. [2] The petition was denied by Judge Hirsh on June 20, 1972. On June 28, 1972, the appellant filed a petition requesting oral argument, but this was dismissed without prejudice on August 10, 1972. A petition for reconsideration was filed by the appellant on December 18, 1972. This petition was denied with prejudice on December 26, 1972. At no time did the appellant file an appeal to this Court from any of the orders issued by the motions judge.
The case proceeded to trial solely on the issue of damages, which were assessed in the sum of $25,534.33. Prior to trial, the appellant orally requested the court to open the judgment and allow the appellant to enter a defense on the issue of liability. This appeal followed the denial of this motion.
The appellant contends that the judgment entered on June 25, 1971, and the orders entered on June 20, 1972, and December 26, 1972, were interlocutory in nature. The appellant argues, therefore, that as the aggrieved party, it had the option of taking an immediate appeal or proceeding to trial solely on the issue of damages and appealing from the entry of final judgment. The appellee submits that each of the above rulings were final orders, and that the appellant had thirty days in which to file an appeal. [3] Because the appellant's appeal to this Court was not filed until May 30, 1974, more than seventeen months after the issuance of the order denying the petition for reconsideration, the appellee contends that this appeal must be quashed as untimely.
By denying the appellant's petition petition to open judgment on June 20, 1972, and the appellant's petition for reconsideration on December 26, 1972, the motions judge precluded the appellant from presenting a defense to the allegations of the complaint. There can be no doubt that under numerous Pennsylvania Supreme Court decisions, the denial of the petition for reconsideration was an appealable final order: Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970). (Emphasis added). In Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 23--24, 218 A.2d 350, 351 (1966), it was stated: 'The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant See also James Banda, Inc. v. Virginia Manor Apts., Inc., 451 Pa. 408, 303 A.2d 925 (1973); McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966); Bell v. Beneficial Consumer Discount Co., 213 Pa.Super. 1, 331 A.2d 902 (1975) (Filed: January 13, 1975, J. 1313 at 11--13) (Spaeth, J., dissenting).
The appellant makes no attempt to contradict this well-settled principle. Rather, the appellant cites two cases for the proposition that the orders of the motions judge were interlocutory and therefore its failure to appeal from them does not bar his present appeal. The cases cited involve the effect of 12 P.S. § 1100, [4] which concerns appeals in opening, vacating and striking off judgments: 'In all cases of application for the opening, vacating and striking off of judgments of any kind, whether entered by amicable confession, upon warrant of attorney or otherwise, Any party aggrieved by the decision of the court opening, vacating or striking off or the refusal to open, vacate or strike off such judgment, may appeal therefrom.' (Emphasis added). A careful examination of these precedents, however, compels the conclusion that the appellant's reliance on them is misplaced.
In Smith v. Dale, 405 Pa. 293, 175 A.2d 78 (1961), the plaintiff entered a default judgment on January 5, 1960, and the defendant filed a petition to open the judgment on May 19, 1960. On June 1, 1960, the trial court denied the petition, but directed that the issue be placed on the general argument list for consideration by the court en banc. On December 2, 1960, the court en banc reversed the trial judge and opened the judgment. The plaintiff appealed that ruling, arguing that the order of June 1, 1960, was a final order and that because the defendant failed to appeal therefore, the court en banc was powerless to give further consideration to the request to open the judgment. The Court affirmed the decision of the court en banc, stating that 405 Pa. at 295, 175 A.2d at 79. (Emphasis added). The decision does not stand for the proposition that if the aggrieved party Chooses to appeal, he may do so in disregard of the statutory time limit within which appeals must be filed. The opinion holds only that if the aggrieved party Does not exercise his option to appeal, the order is interlocutory in so far as the lower court's retention of power to modify or revoke its initial decision is concerned. The effect of this holding to the facts of the present case is that the denial of the appellant's petition to open judgment on June 20, 1972, did not prevent the lower court from passing on the appellant's petition for reconsideration in December, 1972. This was true Because the appellant did not appeal the order of June 20, 1972, denying its petition to open, to this Court.
The case of Home Building & Loan Assoc. v. Houlihan, 373 Pa. 43, 95 A.2d 189 (1953), cited in Smith v. Dale, supra, makes clear that 12 P.S. § 1100 does not affect the statutory time limit in which to appeal. In Houlihan, the plaintiff confessed judgment on December 20, 1950. On May 7, 1951, the lower court granted the defendant's petition to open judgment. On January 4, 1952, however, the court reversed its prior decision and revoked the order which opened the judgment. The defendant appealed from the order of January 4, 1952, [5] and argued that the plaintiff should have appealed from the order of May 7, 1951, opening the judgment, and that because he failed to do so, the lower court was precluded from reconsidering its order to open the judgment. The Court responded: 373 Pa. at 44--45, 95 A.2d at 190. (Emphasis added). As in Smith v. Dale, supra, the Court was faced with the issue of whether the Failure to take an appeal prevented the lower court from modifying its original order. Both cases hold that the lower court is not so precluded.
The purpose of 12 P.S. § 1100 is to grant to the aggrieved party the option to appeal. Significantly, the Court in Houlihan stated that '(i)n the instant case, it is...
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