Toczylowski v. General Bindery Co.
| Decision Date | 29 December 1986 |
| Citation | 519 A.2d 500,359 Pa.Super. 572 |
| Parties | Casimir TOCZYLOWSKI v. GENERAL BINDERY CO. and City of Philadelphia and Joseph Kots. Appeal of Joseph KOTS. |
| Court | Pennsylvania Superior Court |
Claudia M. Tesoro, Asst. City Sol., Philadelphia, for appellant.
John F. Dougherty, Jr., Philadelphia, for General Bindery, Co.
Lloyd George Parry, Philadelphia, for appellee.
Before CAVANAUGH, BROSKY, and MONTEMURO, JJ.
This is an appeal taken from the entry of an order on March 10, 1986 1 vacating judgment of non pros. Appellant contends that the trial court abused its discretion in so vacating, alleging: (1) that the ninety-seven (97) day filing delay between the entry of non pros and the petition to vacate was never reasonably explained, making the petition untimely; (2) that the failure of appellee's former counsel to appear at the Philadelphia call of the list, which resulted in the entry of non pros, was unreasonable; and (3) that the facts alleged in support of appellee's cause of action were legally insufficient to support vacation of non pros.
Upon review of the record, we are in agreement with appellant that the behavior of appellee's former counsel, with respect to (1) and (2) above, was not reasonably explained, and, as such, we now reverse the trial court and reinstate the judgment of non pros.
Appellee's original complaint was filed as a major jury 2 defamation action on January 7, 1982, naming General Bindery Co., Inc., the City of Philadelphia, and Joseph Kots (herein "appellant") as party defendants. During the pleadings stage, both the City of Philadelphia and appellant Kots filed preliminary objections, and an amended complaint was filed. 3 The City of Philadelphia's preliminary objections were granted, but appellant Kots' were denied; Kots then filed an answer.
According to the docket entries, the last action taken connected to this claim, by any party, was in December, 1982. The case was then silent until July 7, 1985, when a letter was dispatched to appellee's former counsel from the court administrator's office in Philadelphia, stating, in relevant part:
Dear Counselor,
It is contemplated that the above case will be assigned for trial on the individual judge program in the very near future.
Accordingly, it will be necessary for you as counsel for plaintiff, to fill out and return the enclosed information sheet no later than two (2) weeks from this date.
However, prior to any "contemplated" assignment to an individual judge, the case was assigned to the major jury list, and, on October 4, 1985, appeared on the list under the "New Listings" heading. By October 7, the case had moved into the older listings, at number 87. The case proceeded to move up the list until, on October 16, the case was at number 11, or within the top fifteen, and was called for trial. On each day the case was listed on the major jury list, the following "Notice to the Bar" appeared on the front page of Philadelphia's Legal Intelligencer, the official publication for all notices to the Bar. 4
To assure maximum effectiveness of the Civil Individual Judge Program, we are supplementing it with a master pool from which cases will be assigned to judges who are available from time to time for assignments when their individual lists permit, as well as judges who will be assigned cases from the master pool list only.
There will appear daily in The Legal Intelligencer a list of approximately 360 cases consisting of 105 major jury, 105 general jury, 75 major nonjury and 75 general nonjury cases, selected in chronological order based on first filing date. Based on the procedure described above, it is anticipated that these lists will move actively.
The call of the list will be held in Courtroom 907, Five Penn Center, promptly at 9 a.m. Counsel in the first 15 cases on each list must appear to answer. The rules governing continuances will be strictly enforced.
President Judge
(Emphasis supplied). Despite this notice, appellee's former counsel was not present at the October 16 call of the list. Appellant's counsel, who was present, motioned that a judgment of non pros be entered. The Honorable Harry A. Takiff, who was presiding at the call of the list, granted the motion.
Ninety-seven (97) days later, on January 21, 1986, appellee, represented at that time by present counsel, filed a petition to vacate the entry of non pros. The petition, which included an affidavit from former counsel, averred that: (1) former counsel, upon receipt of the July 7 letter from the court administrator's office, had begun to monitor the individual judge calendars, as printed in the Legal Intelligencer, exclusively, and never saw the major jury listing; (2) former counsel, who was in the process of an employment and address change, did not receive notice of the entry of non pros until December 11, 1985; and (3) present counsel had just been transferred the case as of January 21, 1986, and was entering his appearance and filing the petition to vacate in as prompt a fashion as could be expected under the circumstances. Both General Bindery Co., Inc. and appellant Kots opposed the petition as unreasonable. The petition was granted on March 10, and appellant only filed this timely appeal.
A petition to open a judgment of non pros is addressed to the court's equitable power, and the exercise of those powers will not be disturbed absent an abuse of discretion. Hutchinson v. Hutchinson, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged. Horan v. R.S. Cook and Associates, Inc., 287 Pa.Super. 265, 430 A.2d 278, 279 (1981); Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759, 761 (1980); Dupree v. Lee, 241 Pa.Super. 259, 361 A.2d 331, 333 (1976). In his attack upon the vacation of non pros, appellant alleges that appellee failed to satisfy any of the above criteria. With respect to criteria (1) and (2), the history of this case supports appellant's allegations. 5
With regard to the initial criterion, which specifies that a petition to vacate must be promptly filed, the trial court found that appellee's former counsel had been in the midst of an office relocation, and, as such, appellee had reasonably explained the delay in the filing of the petition now at issue. 6 However, a review of the relevant factual background simply does not support the trial court's finding of a reasonable delay. While it is undisputed that former counsel was in the process of an office relocation at some point in time prior to December 11, 1985, it is also admitted that counsel received notice of the entry of non pros on December 11. 7 No further action was taken until the January 21, 1986 filing of a petition to vacate. There is simply no support in the record that the relocation in any way precluded former counsel from filing the petition to vacate well in advance of the January 21, 1986 filing by present counsel. 8 Accordingly, we are confronted, by this appeal, with an unexplained delay of forty-one (41) days. While a delay of this length is not, in and of itself, so terribly long as to defy any attempt at explanation, it has not been explained at all, and, as such, cannot be deemed reasonable. See Hatgimisios v. Dave's N.E. Mint, Inc., 251 Pa.Super. 275, 380 A.2d 485, 486 (1977) (); also see Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368, 371 (1977) (). We hold, therefore, that the trial court abused its discretion in finding that the present petition was promptly filed.
Furthermore, were we to defer to the trial court's finding that the petition was prompt, we would, nonetheless, be confronted with the second criterion for vacation: the giving of a reasonable explanation or excuse for the incident that occasioned the default. We feel that appellee has failed to demonstrate any reasonable excuse for the absence of counsel from the call of the list, and hold that the second requirement for vacation has also not been met.
The trial court found that the absence of former counsel was occasioned, primarily, from some "confusion" created by the language of the July 7, 1985 letter from the court administrator, and that the absence, hence, was "reasonable". We disagree.
The Legal Intelligencer is the official periodical for publication of all notices to the Philadelphia Bar. Philadelphia Local Rule of Civil Procedure 100(A); Triangle Pacific Philadelphia Corp. v. Trident Enterprises, Inc., 495 Pa. 427, 434 A.2d 1165, 1166 (1981). It is incumbent upon a Philadelphia practitioner to be familiar with the Intelligencer and its contents, particularly those sections which govern the practice of litigation in the Philadelphia courts. The letter received from the court administrator's office by former counsel merely indicated that an assignment to an individual judge was being "contemplated." Though potentially confusing, it did not excuse counsel from her duty to be knowledgeable concerning other portions of the Intelligencer, which clearly stated, in its "Notice to the Bar", that individual judge assignments were only being made on occasion from the master lists. As such, former counsel was not excused from her duty to monitor the master lists; it was her duty, as a diligent practitioner, to monitor the master major jury list and the individual judge calendars.
Her duty to have so performed is further buttressed by...
To continue reading
Request your trial
-
Valley Peat & Humus v. Sunnylands, Inc.
...of plaintiff or his counsel to be diligent in determining when the case is to be called for trial. See Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986) (plaintiff would not be relieved from judgment of non pros where plaintiff's counsel had failed to monitor major ......
-
Schuylkill Navy v. Langbord
...counsel practicing in particular forum is duty bound to identify and know local rules of court). See also Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986) (holding that counsel is under obligation to keep abreast of publications to the bar and local rules of ¶ 10 I......
-
Jones v. Rudenstein
...was, in my view, quite clear. See Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988); Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986). The only order from which an appeal has been taken, and which is presented to this panel for review, is Jud......
-
City of Philadelphia v. Williams
...the court and the exercise of those powers may not be reversed on appeal absent an abuse of discretion. Toczylowski v. General Bindery Co., 359 Pa.Superior Ct. 572, 519 A.2d 500 (1986). Before a court may grant a petition to open judgment there must be a coalescence of three factors: (1) th......