THOMAS v. HEMPT BROTHERS

Practice — Discontinuance of action — Subsequent motion to strike off — Refusal.

Where it appeared that in December 1955 plaintiff's then attorney entered a discontinuance of an action and in August 1959, a motion was filed to strike off the discontinuance and the court found, upon competent evidence, that the plaintiff was fully aware of the entry of the discontinuance, when it was entered, and had authorized his attorney to take such action upon the receipt of a money consideration, it was Held that the court below did not abuse its discretion in dismissing the motion to strike off the discontinuance.

Mr. Justice MUSMANNO and Mr. Justice COHEN dissented.

OPINION BY MR. JUSTICE EAGEN, January 16, 1961:

This action involves the claim of the appellant-plaintiff against a former employer for overtime wages, liquidated damages and counsel fees under the provisions of the Fair Labor Standards Act.

The issue was listed for trial during the December term list of 1955. On December 12, 1955, appellant-plaintiff's then attorney entered a discontinuance of the action of record in the prothonotary's office. On August 19, 1959, a motion was filed to strike off the discontinuance, the substance of which motion was a claim that it was entered without the knowledge, consent or authority of the plaintiff. After the filing of a responsive answer, depositions were taken and submitted. Following a consideration thereof and argument by counsel, the court below entered an opinion and order dismissing the motion to strike off. From that action, this appeal was filed.

The lower court found factually that the plaintiff was fully aware of the entry of the discontinuance as of the date of entry and that he authorized this action of his attorney upon the receipt of a money consideration.

We have examined the record and find proof of facts and circumstances sufficient to support this conclusion. In view of this the lower court did not abuse its discretion in the action taken.

Order affirmed.

Mr. Justice MUSMANNO and Mr. Justice COHEN dissent.