Ungate v. Passalacqua

• Decision Date: 07 August 1992
• Parties: John UNGATE and Lori Ungate, His Wife, Appellants, v. Frank PASSALACQUA, Appellee.
• Court: Pennsylvania Superior Court

Page 6

613 A.2d 6

418 Pa.Super. 12

John UNGATE and Lori Ungate, His Wife, Appellants, v. Frank PASSALACQUA, Appellee.

Superior Court of Pennsylvania.

Argued April 30, 1992.

Filed Aug. 7, 1992.

Thomas J. Carlyon, Hazleton, for appellants.

Paul Barrett, Scranton, for appellee.

Before CAVANAUGH, CIRILLO and POPOVICH, JJ.

POPOVICH, Judge:

This case involves an appeal from the July 16, 1991, order of the Court of Common Pleas of Carbon County denying the "Petition To Open Judgment Of Non-Pros" by the plaintiffs/appellants, John Ungate and Lori Ungate, his wife. We reverse.

The record reveals that on January 16, 1990, the appellants filed a praecipe for a writ of summons against Frank Passalacqua. The writ was reissued on February 16th and March 15th of 1990, with service ultimately being effectuated by special order of court. See Pa.R.Civ.P. 430. After entry of appearance of counsel for the defendant, a praecipe for rule to file a complaint was issued and directed the appellants to submit a complaint within twenty days of service of the rule or suffer judgment of non pros.

By letter dated July 25, 1990, counsel for the defendant granted the appellants' counsel "an extension of time" until August 1, 1990, for the preparation of a complaint. On October 23, 1990, the defendant filed a praecipe for judgment of non pros for the appellants' failure to file a complaint. Judgment was entered in favor of the defendant on the same day.

A petition to open judgment was filed on February 11, 1991, wherein it was alleged that "numerous extensions" had been granted by counsel for the defendant to file a complaint. It was not until January 25, 1991, however, that counsel for the appellants learned that a judgment of non pros had been entered on October 23rd. Paragraphs 10, 11 & 13.

A rule to show cause why the appellants' petition should not be granted was issued on February 11, 1991, and made returnable seq reg. In response, the defendant filed an answer in which he "denied ... giv[ing counsel for the appellants] numerous extensions in which to file a complaint", save for "one written, granting ... an extension of time until August 1, 1990, and one via [the] telephone granting ... an extension of time until August 2, 1990." Paragraph 13.

The court denied the appellants' petition to open because the petition "on its face" was insufficient to warrant such relief. A timely appeal was filed thereafter.

The criteria for opening a judgment of non pros is well-established; to-wit:

(1) the petition should be timely filed; (2) the reason for the default reasonably explained or excused; and (3) that facts constituting grounds for a cause of action be alleged.

Thorn v. Clearfield Borough, 420 Pa. 584, 586, 218 A.2d 298, 299 (1966). Judicial discretion opening a judgment of non pros will be exercised only when the three factors co-exist. Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 310 A.2d 301, 302 (1973). In this same vein, it has been stated:

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.

Mazer v. Sargent Electric Co., 407 Pa. 169, 171, 180 A.2d 63, 64 (1962) (Citation omitted).

With regard to the first prong of the tripartite test, the defendant admits that the plaintiffs' petition was filed timely. See Appellee's Brief at 4 & 10.

Our review of the record indicates that judgment of non pros was entered on October 23, 1990. The docket sheet indicates that the prothonotary did not mail notice of judgment to the appellants' counsel, as required by Pa.R.Civ.P. 236, until February 11, 1991. The petition to open was filed the same day. Accordingly, we find that the appellants acted timely in filing the petition.

The next prong of the test necessitates the presentment of facts constituting grounds for a cause of action in one's petition to open. Unlike the appellee, we are not persuaded that the allegations of the appellants are insufficient to constitute such a cause of action. To explicate, the appellants asserted in their petition to open:

14. ... the Defendant, Frank Passalacqua, on January 18, 1988 while driving his automobile in Kidder township proceeded to operate his vehicle in such a manner that he carelessly, recklessly and negligently struck the plaintiff's, John Ungate, vehicle with great force, inflicting serious and permanent injuries to the Plaintiff.

15. As a further result of the negligence of the Defendant, Frank Passalacqua, the Plaintiff, John Ungate, has suffered and will suffer a severe impairment of his future earning capacity and power.

16. ...

17. The Defendant, Frank Passalacqua, failed to properly operate his vehicle and did negligently operate his automobile in such a manner as to constitute a tortuous act on behalf of Frank Passalacqua, Defendant.

Petition to Open Judgment of Non Pros, Paragraphs 14, 15 & 17.

We find that the elemental aspects of negligence are contained within the appellants' petition to open. See Fennell v. Nationwide Mutual Fire Ins., 412 Pa.Super. 534, 603 A.2d 1064, 1066-67 (1992) (Basic elements of a cause of action founded upon negligence: Duty, breach of duty, causal connection between conduct and injury, and damages).

Finally, we need to ascertain whether the appellants "reasonably explained" their failure to file a complaint timely. In resolving this aspect of the three-pronged test, a recitation of the procedural history of the case is essential; namely:

Jan. 16, 1990--Writ of Summons filed by the plaintiffs;

Mar. 15, 1990--Writ of Summons served on the defendants;

June 15, 1990--Praecipe for rule upon the plaintiffs to file complaint: extensions granted to the plaintiffs by the defendant on July 25th (in letter form) until August 1st and (orally) until August 2nd;

Oct. 23, 1990--Judgment of non pros entered;

Feb. 11, 1991--Petition to open filed;

Feb. 26, 1991--Answer to petition to open;

May 13, 1991--Defendant's attorney filed a praecipe that the petition and answer be placed on the next available argument list;

May 22, 1991--Court ordered oral argument and briefs be filed by July 12, 1991;

July 16, 1991--Court denied petition to open because "Petition on its face [wa]s insufficient...."

The chronology of events reveals that once the appellants had filed their petition to open, an answer was filed by the appellee, and, approximately 2 1/2 months later, the appellee moved to have the case placed on the argument list. Once posted, the case was orally argued and was followed by the entry of an order denying the appellants' petition to open. Case law discloses that the procedure followed, by both the appellee and the court, was improper.

In Getzik v. Spiegel, 280 Pa.Super. 175, 421 A.2d 462 (1980), the lower court granted the plaintiffs' petition to open judgment of non pros.

The plaintiff-husband had fallen on the defendants' property. Counsel for the defendants filed a rule on the plaintiffs' attorney to file a complaint within twenty days or suffer a judgment of non pros. A letter followed in which the defendants' counsel gave the plaintiffs ten additional days to file a complaint. When a complaint was not filed, a judgment of non pros was entered in favor of the defendants. The plaintiffs then filed a petition to open. Once granted, an appeal was taken by the defendants.

This Court, on appeal, reversed and remanded because the lower court had before it material issues of fact:

In Instapak [Corp. v. S. Weisbrod Lamp and Shade Co., 248 Pa.Super. 176, 374 A.2d 1376 (1977) ], this court faced an almost identical situation in the lower court and found the lower court's action to be premature:

Here, appellee as the moving party did not proceed by rule or by agreement of counsel to take depositions; neither did appellee order the cause for argument on petition and answer; neither did appellant as respondent take a rule on appellee to show cause why it should not either proceed to take depositions or order the cause for argument on petition and answer. Instead, with only the petition and answer, the lower court granted the petition. That decision was premature. The dispositive issue is whether appellee's counsel did or did not have a mistaken belief about the date by which an answer had to be filed, and on that issue the court had before it no evidence, only contradictory pleadings. Such being the case, the court had no proper basis for preferring one party's version to the other party's.

Id. 374 A.2d at 1379.

Here, the dispositive issue is whether the alleged illness and health of appellees' counsel caused him to miss the notice that he had to file a complaint within a specified time. There was no evidence, only contradictory pleadings, before the lower court on this issue. Therefore, the court's decision was premature, and we hereby remand this case for further proceedings consistent with Pa.R.C.P. 209.

280 Pa.Super. at 176, 421 A.2d at 463.

Instantly, as in Getzik and Instapak, we have disputed (material) issues of fact: Counsel for the plaintiffs alleged that he was granted extensions of time in which to file the complaint, see Petition to Open, Paragraphs 7 & 13; Counsel for the defendants denied having given any extensions other than the July 25, 1990 (written) and August 2, 1990 (oral) ones, neither of which authorized the filing of a complaint beyond August 2d. See Answer to Petition to Open, Paragraphs 7 & 13. This divergence of views warranted the activation of the procedures prescribed by Pa.R.Civ.P. 209. See Zinck v. Smashy's Auto Salvage Inc., 250 Pa.Super. 553, 378 A.2d 1287, 1288 (1977).

Rule 209 provides:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or ...