Toczylowski v. General Bindery Co.

519 A.2d 500, 359 Pa. Super. 572, 1986 Pa. Super. LEXIS 13254
CourtSupreme Court of Pennsylvania
DecidedDecember 29, 1986
Docket812
StatusPublished
Cited by24 cases

This text of 519 A.2d 500 (Toczylowski v. General Bindery Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toczylowski v. General Bindery Co., 519 A.2d 500, 359 Pa. Super. 572, 1986 Pa. Super. LEXIS 13254 (Pa. 1986).

Opinions

BROSKY, Judge:

This is an appeal taken from the entry of an order on March 10, 19861 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 jury2 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 [575]*575filed 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. ***** *
Very truly yours,
Harry A. Takiff, J.
Court Administrator

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

[576]*576Civil Trial Pool

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 nonju-ry 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.

Edward J. Bradley

President Judge

Judge Harry A. Takiff

Court Administrator

(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, appel-lee, 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 [577]*577the 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, 268, 430 A.2d 278, 279 (1981); Corcoran v. Fiorentino, 277 Pa.Super. 256, 260, 419 A.2d 759, 761 (1980); Dupree v. Lee, 241 Pa.Super. 259, 262, 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 [578]*578counsel 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 ll.7

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Toczylowski v. General Bindery Co.
519 A.2d 500 (Supreme Court of Pennsylvania, 1986)

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Bluebook (online)
519 A.2d 500, 359 Pa. Super. 572, 1986 Pa. Super. LEXIS 13254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toczylowski-v-general-bindery-co-pa-1986.