Esslinger v. Sun Refining & Marketing Co.

549 A.2d 600, 379 Pa. Super. 69, 1988 Pa. Super. LEXIS 3092
CourtSuperior Court of Pennsylvania
DecidedOctober 28, 1988
DocketNos. 1375, 1508
StatusPublished
Cited by6 cases

This text of 549 A.2d 600 (Esslinger v. Sun Refining & Marketing Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esslinger v. Sun Refining & Marketing Co., 549 A.2d 600, 379 Pa. Super. 69, 1988 Pa. Super. LEXIS 3092 (Pa. Ct. App. 1988).

Opinion

OLSZEWSKI, Judge:

Appellant Frederick Baker, individually and t/a Baker Construction and Baker Construction Company (hereinafter “Baker”), appeals from an order granting appellant Ann B. Esslinger’s (hereinafter “Esslinger”) petition to open judgment of non pros. Esslinger cross-appeals from the trial court’s denial of her motion to strike the judgment of non pros. We affirm.

On April 1, 1985, Esslinger, Administratrix of the Estate of James E. Esslinger, filed a praecipe for summons against various defendants including Baker. Esslinger commenced this action as a consequence of the injuries sustained by and the resultant death of James Esslinger in an explosion and fire at the Tin Refinery on March 22, 1983. On August 29, 1985, Baker filed a document captioned as “Rule to File Complaint” wherein Baker sought to have a Rule entered upon Esslinger to file a complaint within twenty (20) days or suffer a judgment of non pros. Subsequently, on December 17, 1985, a praecipe to enter judgment of non pros was filed on behalf of Baker. A notation on the record indicates that notice pursuant to Pa.R.Civ.P. 236 was given.

On March 5, 1987, plaintiff filed a petition to open or strike the judgment of non pros. An amended petition was [73]*73filed on March 9, 1987. Following the filing of answers to the petition, the trial court granted the petition to open the judgment and denied the petition to strike. Esslinger filed a complaint on April 20, 1987. A timely appeal from the order granting the petition to open was filed by Baker on May 8, 1987, no. 1508 Philadelphia 1987. Esslinger then filed the appeal listed at no. 1375 Philadelphia 1987 from the order denying her petition to strike the judgment.

Baker asserts that the trial court abused its discretion in opening the judgment of non pros. A petition to open a judgment of non pros is directed to the equitable powers of the court Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986). The decision to grant or refuse a petition to open a judgment of non pros rests within the discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. First Valley Bank v. Steinmann, 253 Pa.Super. 8, 384 A.2d 949 (1978).

In support of his argument that the trial court erred in granting the petition to open, Baker submits that the petition to open was untimely as it was filed more than fifteen (15) months after the entry of the judgment of non pros. Baker further argues that no reasonable explanation has been offered to excuse the failure to promptly move to open the judgment, nor has plaintiff established a reasonable explanation for her failure to file a complaint. Esslinger contends that she has met the requirements for the opening of judgment of non pros.

The three requirements that must be satisfied in order to open a judgment of non pros are firmly established: (1) the petition to open must be promptly filed; (2) a reasonable explanation or excuse must be offered for the petitioner’s defective conduct; and (3) facts constituting grounds for the petitioner’s underlying cause of action must be alleged. Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983); Geyer v. Steinbronn, supra.

Clearly, the record indicates a significant delay in the filing of the petition to open the judgment. We find, [74]*74however, for the reasons that follow, that the trial court did not abuse its discretion in granting the petition to open. As noted by the trial court, the timeliness of the petition to open should be measured in terms of the reasonableness of the explanations given for the delay and not merely the fact or length of the delay itself. Alston v. Philadelphia Electric Company, 337 Pa.Super. 46, 486 A.2d 473 (1984). “The test regarding delay is not based upon the length of the delay, but upon the excuse for the delay.” Versak v. Washington, 359 Pa.Super. 454, 519 A.2d 438 (1986), citing Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982).

In support of its finding that the petition to open was timely filed, the trial court took into consideration Esslinger’s reliance on her counsel’s representations that the lawsuit was being diligently pursued; the fact that Esslinger was not aware of the demand thai a complaint be filed until well after she became aware of the entry of the judgments of non pros; and the fact that after she became aware of the real status of the case, Esslinger retained new counsel, who filed a petition to open the judgment. Opinion, McGovern, J., April, 7, 1988, at 4-7.

Next, the trial court determined that the failure to file a complaint was a result of plaintiff’s counsel’s non-feasance. While it is true that a litigant is generally bound by the actions or inactions of his/her counsel, a litigant placing his/her case in the hands of a reputable counsel should not be turned out of court if the delay complained of was almost entirely on account of the neglect or oversight of counsel. White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974); Poluka v. Cole, 222 Pa.Super. 500, 295 A.2d 132 (1972). Attorney neglect may provide a sufficient basis on which to justify a party’s failure to respond to process, particularly where there have been no negotiations or attempts by the opposing party to draw the attention of counsel to the case. Buxbaum v. Peguero, 335 Pa.Super. 289, 484 A.2d 137 (1984). “In fact, pertinent case law reveals that the power to open judgment should be exer[75]*75cised when the default is the result of oversight or mistake by counsel.” Versak, supra, 359 Pa.Super. at 458, 519 A.2d at 441, citing Commonwealth Department of Transportation v. Nemeth, 497 Pa. 580, 584, 442 A.2d 689, 691 (1982). While it does appear from the record that some correspondence took place between Esslinger’s counsel and that of the various defendants (including Baker) with respect to the course of the litigation, nothing on the record indicates that knowledge of this correspondence could be attributed to Esslinger.

Finally, Esslinger has filed a complaint which establishes that she has sufficient facts to support the underlying cause of action. This factor was recognized by the trial court. Because Esslinger met all of the criteria for opening the judgment, the trial court did not err in opening the judgment.

Esslinger cross-appeals from the order denying the petition to strike. A judgment of non pros may only be stricken when there are defects apparent on the face of the record. Ruehl v. Maxwell Steel Co., 327 Pa.Super.

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Bluebook (online)
549 A.2d 600, 379 Pa. Super. 69, 1988 Pa. Super. LEXIS 3092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esslinger-v-sun-refining-marketing-co-pasuperct-1988.