White v. Alston

• Citation: 231 Pa.Super. 438,331 A.2d 765
• Parties: Albert WHITE v. Nathaniel ALSTON, Appellant.
• Decision Date: 11 December 1974
• Court: Superior Court of Pennsylvania

331 A.2d 765

231 Pa.Super. 438

Albert WHITE v. Nathaniel ALSTON, Appellant.

Superior Court of Pennsylvania.

December 11, 1974.

Robert C. Steiger, Philadelphia, for appellant.

John J. D'Angelo, Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.

SPAETH Judge:

This is an appeal from an order granting appellee's motion to open a judgment of non pros.

The dispute in this case concerns an automobile accident that occurred on February 8, 1969. Only appellant and appellee were involved in the accident. Appellee's counsel instituted suit by summons on January 26, 1971, and appellant was duly served. On October 31, 1972, a rule was issued on appellee's counsel to file a complaint or suffer non pros. There is no indication in the record that appellee's counsel took any action in response to this rule. On November 22, 1972, appellant entered judgment of non pros, a copy of which was sent to appellee's counsel. Again, there is no indication in the record that counsel acted. On July 30, 1973, appellee's newly retained counsel filed a petition to open the judgment. At no time did this new counsel enter an appearance in the court below, nor was there a withdrawal by original counsel. Appellant answered the petition to open and requested oral argument. This request was denied, ^[1] and the petition was granted.

There are three conditions that must be met before a judgment of non pros may be opened: (1) the petition to open must be timely filed; (2) there must be a reasonable explanation or excuse for the default; (3) facts constituting a cause of action must be alleged. Goldstein v. Graduate Hospital of the U of Pa., 441 Pa. 179, 272 A.2d 472 (1971); Thorn v Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966); Matyas v. A. Einstein Med. Center, 255 Pa.Super 230, 310 A.2d 301 (1973).

It may be assumed that the petition here alleged facts constituting a cause of action. ^[2] There is, however, nothing to show that the other two conditions were met. With respect to these the only allegation is '(t)hat because of the inadvertence of counsel and counsel's inability to obtain complete medical information concerning plaintiff's injuries, filing of the Complaint was deferred.' (Petition, para. 5.) This allegation is so general as to be meaningless. One is left to speculate about the nature of the 'inadvertence of counsel,' and why this inadvertence should have resulted in an eight month delay (from November, 1972, when judgment was entered, until July, 1973, when the petition to open was filed). So far as concerns 'counsel's inability to obtain complete medical information,' 'complete medical information' is not a prerequisite to filing a complaint. Furthermore, and more important, in the answer to the petition to open it is denied that there was any such disability, appellant alleging that 'counsel, in fact, had available to him medical letters and reports which he had previously supplied to defendant's representatives.' (Answer to Petition to Open, para. 5.) If appellee wished to controvert this denial it was his obligation to take depositions. Since he did not, the denial must be taken as true. ^[3]

In his opinion the hearing judge states:

(P)laintiff's Petition to open this judgment was filed on July 30, 1973, eight months after the entry of the judgment of non pros on November 22, 1972. Although this petition was filed eight months after the entry of the judgment, plaintiff could not have acted in greater haste becaue plaintiff's prior counsel did not tell him that a judgment had been taken against him. In fact during this eight-month period, plaintiff delieved that his counsel was in the process of settling the claim. However, immediately after discovering the judgment, plaintiff employed new counsel who thereafter filed the present petition. Because plaintiff acted promptly after having knowledge of the judgment, and because plaintiff should not be prejudiced by the delay of his counsel, this Court must conclude that plaintiff's petition was timely filed under these circumstances.

The difficulty with this statement is that we cannot tell where the judge got the information that led him to make it. As just discussed, there is nothing in the petition to open that supports it, and no deposition was taken. The record before us does include a 'Memorandum of Law' submitted to the hearing judge by counsel for plaintiff. In this memorandum the following appears: 'In the instant case, plaintiff was never made aware a default judgment had been entered against him and he believed his former counsel was negotiating a settlement.' And, '. . . a reasonable explanation (for the eight month delay) is offered in that plaintiff's former counsel had overbearing personal problems and inadvertently allowed time to elapse and was unable to complete the medical information and other pertinent aspects of the case.' These statements, however, do not support the hearing judge's opinion. Apart from the fact that to some extent the judge's opinion goes beyond the statements (nothing is said in the statements about plaintiff engaging new counsel 'immediately after discovering the judgment'), the statements were unsworn to and so were not part of the record. Moreover, there is also in the record before us the ,'Memorandum of Law' submitted to the hearing judge by counsel for appellant. There it is said: 'In fact, it is our understanding that attorney Frederick Del Rossi is presently an active member of the Bar of Philadelphia, on the Staff of the Mayor of the City and has not been ill or away from his law practice for a period of time. Certainly, no reasonable offer or explanation of the reasons for the so-called 'inadvertence of counsel' has been offered . . ..' This contradiction of appellee's memorandum illustrates the vice of considering unsworn statements in disposing of petitions. There being nothing of record to support either memorandum there is no proper basis for preferring one over the other.

In these circumstances we might simply reverse. Goldstein v. Grad Hosp. of the U. of P., Supra. We are reluctant to do so, however, because, meagre as the allegations of the petition are, apparently the accident was a...