Trial Court Requests Appellate Court To Affirm Denial of Petition For Relief From Entry of Judgment of Non Pros

In the case of Dennis v. E&I Ventures, LLC, May Term 2024, No. 2811 (C.P. Phila. Co. Jan. 22, 2025 Coyle, J.), the court issued a Rule 1925 Opinion addressed to the Commonwealth Court requesting that the appellate court affirm the trial court’s denial of the Petition for Relief from Judgment of Non Pros that had been entered against the Plaintiff.

This matter arose out of claims related to alleged personal injuries sustained by the Plaintiff during her prior tenancy in a property allegedly under the control of one or more of the Defendants that were sued.

After the Plaintiff did not move the action forward, one of the Defendants secured an entry of judgment non pros by default.

According to the Opinion, the trial court held that its Order should be affirmed where the Plaintiff’s petition was untimely, lacked the required signature of the Plaintiff as the petitioning party, failed to state a meritorious claim, and resulted in unnecessary and prejudicial delay to the Defendants.

Anyone wishing to review a copy of this decision may click this LINK.

Source:  "The Legal Intelligencer Common Pleas Case Alert," www.law.com (June 11, 2025).

Any Way You Slice It, New Causes of Action Cannot Be Stated Via Amendment to Complaint After Expiration of Statute of Limitations

In the case of Slice, Slice Baby, LLC v. Armetta, No. 2019-CV-153 (C.P. Lacka. Co. Nov. 8, 2024, Nealon, J.), the court addressed various issues in a case involving a dispute over issues regarding a lease agreement involving a pizza restaurant.

Among the issues addressed by the court was whether a Plaintiff may secure leave of court to amend the Complaint to assert new causes of action after the statute of limitations on the claims presented have expired.

In this case, the Plaintiff filed a motion seeking leave of court to amend the Complaint to assert five new causes of action and to include four additional Defendants.

Judge Nealon reviewed the case and the applicable statute of limitations and ruled that the limitations period had expired on four of the five new claims and, as such, those claims were not permitted. The court did allow the Plaintiff to assert a new cause of action for breach of the implied covenant of good faith and fair dealing against one additional Defendant.

Relative to the Defendant’s Motion for a Judgment of Non Pros based upon the Plaintiff’s failure to litigate this action with reasonable promptitude, after reviewing the record before him, Judge Nealon noted that the Defendant had not identified any prejudice that the Defendant had suffered as a result of the Plaintiff’s lack of reasonable diligence in pushing this litigation ahead. As such, the Defendant’s Motion for Judgment for Non Pros was denied.

Anyone wishing to review a copy of this decision may click this LINK.

Based on Bankruptcy Court Stay of the Matter, Appellate Court Overturns Administrative Dismissal of Case by Trial Court

In the case of Tyson v. City of Philadelphia, No. 519 C.D. 2022 (Pa. Cmwlth. Jan. 16, 2024 McCullough, J., Wojcik, J. and Hannah Leavitt, S.J.) (Op. by McCullough, J.), the Pennsylvania Commonwealth Court vacated a Philadelphia County trial court’s denial of a Petition to Open an Administratively Dismissed Action.

This case involved a trip and fall along a sidewalk in Philadelphia. The Plaintiff sued the City of Philadelphia, Sears Holdings Corp. d/b/a Kmart and other Defendants.

The one (1) Defendant, Sears Holdings Corp. and its affiliates had provided the trial court with a notice that a voluntary bankruptcy proceeding was pending which necessitated a stay of this action.

However, this personal injury litigation was administratively terminated by the trial court due to a lack of docket activity. The injured party Plaintiff’s Petition to Open was denied. That party asserted that he was not aware of the administrative dismissal paperwork.

In part, the Plaintiff asserted that the administrative dismissal was improper as no action should have been taken in the matter due to the pending bankruptcy of Sears Holding and the automatic stay issued by the bankruptcy court.

On appeal, the Commonwealth Court found that the trial court had erred in administratively dismissing the action for failure to prosecute given that one of the Defendants in the case had filed a voluntary bankruptcy proceeding and given that a bankruptcy stay had to be construed to apply to the dismissals.

The lower court’s decision was vacated and the case was remanded for further proceedings.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 30, 2024).

Judgment of Non Pros Entered Against Plaintiff Due to Lengthy Lack of Docket Activity

In the case of Garcia v. PPL Electric Utilities, No. 2015-CV-6565 (C.P. Lacka. Co. Dec. 19, 2023 Nealon, J.), the court granted a Defendant’s Petition for the Entry of Judgment of Non Pros against a Plaintiff due to the Plaintiff’s failure to prosecute the case.

The court noted that there was eighty-seven (87) months of docket inactivity in this case. 

Also, during the prolonged time that there was no docket activity, one of the named Plaintiffs died without being deposed, the Defendants only employees with knowledge of the alleged event had retired, and a key non-party witness had allegedly lost all memory of the subject incident that occurred back in 2013.

Judge Terrence R. Nealon
Lackawanna County

After reviewing the case before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas applied the law related to request for the entry of a judgment non pros and found that the record established that the Plaintiffs had failed to exercise due diligence in litigating the case with reasonable promptitude, that no legitimate reason existed in ordinate delay, and that the Defendant had suffered a substantial diminution in its ability to defend the case due to the death of a party, the retirement of former employees who originally possessed relevant knowledge, and the loss of a memory by a crucial witness relative to events that occurred a decade ago.

As such, the Defendan's Petition for the Entry of a Judgment of Non Pros was granted.

Anyone wishing to review a copy of this decision may click this LINK.

BEWARE: Petition To Open Judgment Non Pros Must Be Filed Before Any Appeal To Preserve Issues

Oops!

In the case of Reilly v. Bristol Twp., No. 2019-08757 (C.P. Bucks Co. June 30, 2023 Corr, J.), the trial court judge issued a Rule 1925 Opinion in which he requested the Superior Court to dismiss a Plaintiff’s appeal of a civil litigation which a non pros default judgment was entered against the Plaintiff and the Plaintiff failed to preserve any issues for appeal when he filed an appeal from the entry of the judgment of non pros rather than filing a Petition to Open and/or Strike the Default Judgment under Pa. R.C.P. 3051.

According to the Opinion, a Plaintiff police officer sued the Defendant township regarding various employment issues.

During the course of the litigation, the trial court granted a Defendant’s request for the entry of judgment of non pros due to the Plaintiff’s failure to proceed with the case with reasonable promptitude.

The Plaintiff then filed an appeal.

The trial court held that the Plaintiff’s appeal had to be dismissed given that the Plaintiff failed to file a Petition for Relief from the judgment of non pros under Pa. R.C.P. 3051. 

According to the trial court, that Rule, and case law construing that Rule, directly addresses the means of obtaining relief from an entry of a judgment of non pros. The Court noted that, according to the Explanatory Note of the Rule, a Plaintiff must file a Petition for relief from the judgment of non pros to the trial court rather than filing an appeal to the appellate court. 

The trial court ruled that, where the Plaintiff erroneously filed an appeal, the Plaintiff failed to preserve any of the issues regarding the entry of the judgment. As such, the trial court requested the Superior Court to dismiss the Plaintiff’s appeal.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 1, 2023).

Court Addresses Service of Process on Out-of-State Defendant and Non Pros Issues

In the case of Auto Club Ins. Ass’n v. Enter. Holdings, Inc., No. 16-CV-422 (C.P. Lacka. Co. Oct. 5, 2021 Nealon, J.), the court held that a Defendant was properly served with a Writ of Summons filed within the statutory time limits. The court also ruled that the Defendant did not suffer prejudice such that the Complaint should not be dismissed due to an alleged untimely prosecution of the claim.

In this matter, the Defendant was headquartered in another state. 

The court determined that the Pennsylvania Rules of Civil Procedure required that this Defendant be served within ninety (90) days of the Writ of Summons by way of certified mail, return receipt requested. 

Judge Nealon found that the record before him confirmed that this Defendant was timely and properly served. As such, the first Preliminary Objection regarding service of process issues was overruled.

With regard to the Defendant’s argument that the matter was not timely prosecuted due to the fact that the sixty (60) months had passed between the issuance of the Writ of Summons and the filing of the Complaint, the court stated that this issue was not properly raised as a Preliminary Objection but should have been raised via Motion for Judgment Non Pros. 

However, even applying the rules pertaining to the determination of a Motion for Judgment of Non Pros, Judge Nealon found that the Defendant failed to identify any actual prejudice it had suffered due to the passage of time. Given that there was no prejudice found, the Defendant’s objection in this regard was also overruled.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 23, 2021).

Source of image: Photo by Enrique Zafra from www.pexels.com.

Judgment Non Pros Denied But Court Lights A Fire Under Them With A Discovery Deadlines Order

In the case of Fisher v. Correctional Care, Inc., No. 14-CV-4778 (C.P. Lacka. Co. April 20, 2020 Nealon, J.), the court denied a Defendant’s Petition for the Entry of a Judgment Non Pros for failure to pursue this civil litigation matter with reasonable promptitude.

The court noted that this matter arose out of a claim by a license practical nurse against a healthcare provider to the Lackawanna County Prison for allegations pertaining to a hostile work environment and other claims.

The Defendant employer filed a Petition for Judgment Non Pros asserting a lack of prosecution of the claim as reflected by the lack of docket activity over a two (2) year period dating from January of 2018 through January of 2020.

Judge Nealon reviewed the applicable law and noted that, to secure a judgment of non pros for failure to prosecute a civil litigation matter, the moving party must establish that (1) the Plaintiff has shown a want of due diligence by failing to proceed with reasonable promptness, (2) that there is no compelling reason for the delay, and three (3) that the delay has caused actual prejudice to the Defendant.

The court further noted that prejudice in this context consist of any substantial diminution of a party’s ability to properly present its case at trial, such as the death or absence of another material witness or the destruction or loss of relevant evidence.

While the court agreed that the Defendant had demonstrated that the Plaintiff had neglected to diligently prosecute this action without compelling reason for having failed to do so, the Defendant had not identified the actual prejudice that the Defendant had suffered as a result. As such, the petition was denied under the standard of review required.

Judge Nealon took an additional step and noted that, although the Petition was denied, given that it had been 5 ½ years since the case was instituted, and given that the Defendant was entitled to have this action timely concluded, the court was laying down deadlines for the completion of discovery, exchange of expert reports, and the filing of any dispositive motions and a Certificate of Readiness. The court issued these deadlines on a sua sponte basis.

Anyone wishing to review a copy of this decision may click this LINK.

Non Pros Default Judgment Entered Due to Faulty Certificates of Merit Stricken Due to No Prejudice Arising From Technical Errors

In the medical malpractice case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. Oct. Sept. 25, 2018 Nealon, J.), the court granted Plaintiff relief from non pros judgments pursuant to Pa.R.C.P. 3051, pertaining to Certificates of Merit.  

According to the Opinion, this medical malpractice action arose out of allegations pertaining to thyroid surgery and treatment.  

The Plaintiff’s Complaint asserted various malpractice claims and attached a report authored by the Defendant surgeon which arguably contained admissions regarding the alleged surgical and pathological errors.  

The Plaintiff filed Certificates of Merit as to each Defendant but inadvertently failed to check the appropriate boxes on the form to indicate that the Plaintiff possessed expert support for the negligence and vicarious liability claims or, in the alternative, was proceeding based upon the theory of res ipsa loquitur.

The Defendants filed Judgments of Non Pros pursuant to Pa.R.C.P. 1042.7 based upon the Plaintiff’s alleged failure to satisfy the Certificate of Merit requirement contained in Pa.R.C.P. 1042.3.  

When the Plaintiff filed a Petition for Relief from the Non Pros Judgments, the Clerk of Judicial Records struck those judgments. The Defendants responded with the motion at issue seeking to strike the Plaintiff’s Petition and reinstate the non pros judgments.   

After reviewing the law pertaining to relief from non pros judgments, the court noted that the Plaintiff had timely filed the Petition for Relief within nine (9) days of entries of the judgment and the parties’ submissions confirmed that the initial failure to check the indicated boxes on the Certificates of Merit forms was attributed to an oversight or mistake by the secretary for Plaintiff’s counsel during Plaintiff’s counsel’s period of medical incapacity and convalescence.

 The court also noted that, in addition to furnishing a reasonable explanation for the original default, which was subsequently cured by the filing of corrected Certificates of Merit, the Plaintiff had also provided factual support for concluding that her claims against the Defendants were supported by expert testimony and were potentially meritorious in any event.  

Judge Nealon further ruled that, since the defense counsel and the carriers were apprised by the Plaintiff’s theories of liability and the identity of her expert witness prior to the filing of the Plaintiff’s flawed Certificates of Merit, there was no prejudice to the Defendants by virtue of the Plaintiff’s belated filing of a fully compliant Certificate of Merit.   Judge Nealon therefore reasoned that Rule 1042.3’s purpose of eliminating meritless malpractice suits at their inception would not be frustrated by allowing this litigation to proceed.

Accordingly, the court found the Plaintiff was indeed entitled to relief from the non pros judgments pursuant to Pa.R.C.P. 3051.  Consequently, the Defendants’ Motion to Strike the Plaintiff’s Petition for Relief and to Re-enter the Non Pros Judgments was denied.  

Anyone wishing to review this Opinion may click this LINK.

Pennsylvania Superior Court Affirms Denial of Petition to Open Judgment of Non Pros

In the case of Intech Metals, Inc. v. Meyer, Wagner & Jacobs, No. 374 WDA 2016 (Pa. Super. Dec. 22, 2016 Bender, P.J.E., Ransom, J., Musmanno, J.) (Op. by Ransom, J.), the Pennsylvania Superior Court found that the trial court properly denied a Plaintiff’s Petition to Open a Judgment of Non Pros and properly entered the judgment of non pros.

The court's decision was based, in part, on the fact that the Plaintiff’s conceded that the docket was inactive from 2006 through 2012.   

The case before the court also showed that the Plaintiff failed to take any proactive role in moving the case forward, which deprived the Defendants of the opportunity to depose and cross-examine essential witnesses prior to their death.  

This matter arose out of litigation between investors and shareholders of a company under claims of professional negligence.   

Anyone wishing to review a copy of this latest Opinion from the appellate court regarding the entry of a judgment of non pros and a denial of Petition to Open for lack of activity may click this LINK.

Source of image:  www.nahoumlaw.com

Judgement Non Pros Granted in Monroe County Case Relative to Delays in Prosecuting Claim

In his recent decision in the case of Moll v. Reinhart and Rusk, PICS Case No. 15-1336 (C.P. Monroe Co. May 11, 2015 Williams, J.), Judge David J.Williamson granted a Defendant’s request for the entry of a judgment non pros in a case where nearly four (4) years passed between the filing of a Writ of Summons and the filing of a Complaint without any compelling reason for the delay being provided to the Court. Judge Williamson found that this amounted to a lack of due diligence on the part of the Plaintiff and, therefore, the Defendant’s Motion to Dismiss For Lack of Prosecution was granted.

This matter arose out of a fall from a work place ladder.

The Writ of Summons was filed the day before the expiration of the applicable statute of limitations and was timely served on one (1) of the Defendants. Another Defendant was not served until approximately two (2) years later with Writ. Although the Writ was filed in August of 2012, the Complaint was not filed until June of 2014.

Judge David J. Williamson
Monroe County

The Court noted that, in the interim, the only witness to the accident passed away. This, according to the Court, amounted to prejudice to all of the Defendants.

Anyone desiring a copy of this decision by the Court may contact the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427.

Source: "Digest of Recent Cases" Pennsylvania Law Weekly "September 1, 2015"

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.

It Is Still Possible to Have a Case Dismissed for Inactivity (Judgment Non Pros) - Part II

I recently reported on the 11 year old case of Pagnotti v. Louis Pagnotti, Inc., 2000 - CV - 566 (Lacka. Co. June 1, 2011 Minora, J.), in which Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas applied the factors set forth in the Pennsylvania Supreme Court case of Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998), to grant a defendant's motion for entry of a judgment of non pros due to inactivity in the claim.

Here's a link to complete Tort Talk post on Judge Minora's case:  http://www.torttalk.com/2011/06/it-is-still-possible-to-have-case.html


I note that Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently issued a similar Order, with an explanation of his rationale, granting a non pros judgment in a case my partner, Timothy E. Foley, and I defended entitled Calopha, Inc. d/b/a Servpro of Mountaintop v. Gerald Williams Adjustment Service, No. 2004 - CV - 1700 (Lacka. Co. April 20, 2011 Nealon, J.).

The Calopha case was commenced back in 2004 and involved a claim in which the Plaintiff was seeking payment for remediation work completed by the Plaintiff-company.  In this case there was a gap of six (6) years since the last docket activity. 

Judge Nealon likewise primarily relied upon the tripartite test enunciated in Jacobs v. Halloran case to conclude that the Defendant was entitled to a non pros judgment in light of the inactivity by the Plaintiff in the case.

Anyone desiring a copy of the decisions of Judge Nealon or Judge Minora, or the Petition and Brief for Judgment Non Pros filed by my office, may contact me at dancummins@comcast.net.


(Past successes do not guarantee that similar results will be secured in future cases.  Rather, each case must be handled on its own merits. )

It Is Still Possible to Have a Case Dismissed for Inactivity (Judgment Non Pros)

In the 11 year old case of Pagnotti v. Louis Pagnotti, Inc., 2000 - CV - 566 (Lacka. Co. June 1, 2011 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas applied the factors set forth in the Pennsylvania Supreme Court case of Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998), to grant a defendant's motion for entry of a judgment of non pros due to inactivity in the claim.

This 11-year-old case was filed in February 2000.  According Judge Minora's Opinion, after some docket activity through August of 2001, there was a three year gap in docket activity through June of 2004. 

A second period of docket activity lasted only three months.  Thereafter, from August 2004 through December 2009, there was no activity in the case.

Later, in March of 2010, the court permitted counsel for plaintiff to withdraw based on plaintiff's lack of payment for legal bills.

In April 2010, defendants filed this motion to dismiss for inactivity and for entry of judgment of non pros. An attorney entered his appearance for plaintiff and filed objections to the request for a dismissal.

The defendants asserted that the plaintiff had failed to diligently prosecute this case, which resulted in prejudice. The defendants argued that for over seven years of the life of the file, there had been no activity of any kind.  It was additionally asserted that the Complaint was based upon events that had occurred between 14 and 21 years ago.

The plaintiff's new attorney argued that any docket inactivity was caused by prior counsel and also made an unsupported allegation that defendants were not prejudiced by the delay.

In May 2010, the court allowed limited discovery on the non pros issue. The court then determined that this "ancient case" had been delayed yet another year and was overly ripe for disposition.

Judge Minora noted that the case of Jacobs v. Halloran , 710 A.2d 1098 (Pa. 1998), established three elements that must be met for a judgment of non pros to be properly entered to terminate an inactive case. First, plaintiff failed to proceed with reasonable diligence.  Second, there was no compelling reason for the delay. Third, plaintiff's delay caused actual prejudice to defendants.

Finding that the defendants met the elements of this test, the court granted defendants' motion for entry of judgment non pros due to inactivity.

Source: Case Digests in June 14, 2011 Pennsylvania Law Weekly


Anyone desiring a copy of this case may contact me at dancummins@comcast.net.