
    Mazer v. Pittsburg Railways Company, Appellant
    (No. 1).
    
      Practice, C. P. — Non-pros—Failure to file declaration — Discretion of court — Rules of court — Appeals—Review.
    An order of the court of common pleas striking off a judgment of non-pros entered because of failure to file a statement of claim within the time prescribed by the rules of court, cannot be reviewed by the appellate court in the absence of clear abuse of discretion by the lower court.
    Argued April 18, 1912.
    Appeal, No. 108, April T., 1912, by defendant, from order of C. P. No. 3, Allegheny Co., Aug.. T., 1906, No. 753, striking off judgment of non-pros in case of Annie Mazer and Marcus Mazer v. Pittsburg Railways Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a wife. Before Davis, J.
    From the record it appeared that a judgment of non-pros had been entered for failure to file a statement of claim within three months in accordance with the rules of court. The court subsequently struck off the non-pros and the case went to trial with a resulting verdict for plaintiffs.
    
      Error assigned was the order striking off the judgment of non-pros.
    
      William A. Challener, with him Clarence Burleigh, for appellant.
    
      M. H. Stevenson, with him Wm. C. Boyd and F. P. lams, for appellees.
    October 14, 1912:
   Opinion by

Head, J.,

This case cannot be distinguished from Williamsport Nat. Bank v. Kreamer, 230 Pa. 515. The rules of the courts of Philadelphia and Allegheny counties, under which the judgments were severally entered and opened, exhibit no substantial difference. When in the case cited the learned court below, exercising the power expressly reserved by its own rules, opened the judgment of non-pros the Supreme Court said there was nothing to review. In the present case the learned court below, exercising a like power, formally reserved under a like rule, opened the judgment by default that had been previously entered. The power to so open was a discretionary power, the exercise of which leaves an appellate court nothing to review in the absence of a clear abuse, and no such abuse appears in the present record.

The order is affirmed at the cost of the appellant.  