Motion for Judgment Non Pros Denied in Lackawanna County

In his recent March 28, 2012 Opinion in the case of Gallati v. Sebastian International, Inc., No. 2008-Civil-2268 (C.P. Lacka. Co. March 28, 2012 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed a Motion for Judgment of Non Pros filed by a Defendant based upon the alleged failure of the Plaintiffs to prosecute their case diligently.

This matter arises out of a cause of action of breach of implied warranties of merchantability and fitness for a particular purpose along with two derivative claims for loss of consortium. The underlying facts involve the female Plaintiff having purchased a canister of hairspray that was manufactured by Sebastian International, Inc. and sold to CVS where the Plaintiff purchased the hairspray.

The Plaintiff alleges that the hairspray canister did not notify customers that 10 and 1 ½ hours after applying Sebastian Shaper Plus Hairspray the product could cause hair to become inflamed in such a manner so as to cause injuries. More specifically, the Plaintiff stated that she originally used the hairspray at about 4:30 p.m. on January 26, 2006. Later, at approximately 3:00 a.m. on or about January 27, 2006, the Plaintiff lit a cigarette and her hair immediately caught fire resulting in burn injuries.

With regards to the subject Motion to Dismiss for failure to prosecute, the court noted that, after the filing of that motion by the Defendants, the Plaintiffs’ original attorney withdrew his appearance and was replaced by new counsel.

The Defendants argued in their motion that there had been no docket activity in the matter since June of 2009. The Defendant additionally argued that there had been no depositions scheduled or conducted. It was additionally asserted that the sale of the product at issue took place over six (6) years ago. The Defendants alleged severe prejudice in the form of an inability to locate witnesses.

In response, the new Plaintiff’s attorney asserted that the Plaintiffs had previously cooperated with their original counsel in moving the case ahead. The new counsel also indicated that they recently received the file from the former Plaintiff’s attorney and was in the process of preparing to proceed with discovery. Plaintiffs also asserted that the Defendants had not established any “actual prejudice” as a result of any alleged delay in the litigation.

After reviewing the applicable law which provides that a judgment of non pros may be properly entered only if:

(1) A party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude;

(2) There is no compelling reason for the delay; and,

(3) The delay has caused some prejudice to the adverse party.

See James Bros. Lumber Co. v. Union Banking & Trust Co. of DuBois, 247 A.2d 587 (Pa. 1968).

Judge Nealon also noted that the more recent Pennsylvania Supreme Court case of Captline v. County of Allegheny, 718 A.2d 273, 274 (Pa. 1998) required a Defendant to show “actual prejudice” in order to prevail on a Motion for Judgment of Non Pros.

After applying the law to the case at hand, Judge Nealon found that the Defendants had not identified any actual prejudice that they had suffered from the 26 month delay in the proceedings. The Court rejected the Defendants’ bald claims that they “may” experience difficulty in locating witnesses or that those witnesses’ memories “may” have faded. The court also noted that the Plaintiffs had confirmed that they have preserved the actual product as well as exemplars of the product for the Defendants’ inspection.

Accordingly, the Court denied the Defendants’ Motion for Judgment Non Pros. However, Judge Nealon went further and placed deadlines on the case to move it ahead in discovery.

Anyone desiring a copy of this Opinion of Judge Nealon in the case of Gallati v. Sebastian International, Inc. may click here.

Anyone desiring to review summaries of two other recent Motion for Judgment of Non Pros cases out of Lackawanna County with a contrary result, i.e., such motions were granted due to a Plaintiff’s lack of due diligence and prosecuting the case, may click here and here.