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Despite a filing error in which a slip and fall case was mistakenly assigned to Philadelphia’s mass torts program with an incorrect attorney ID number for plaintiff’s counsel, three years was too long for the plaintiff to wait before petitioning for her non pros order to be vacated, the Superior Court has ruled.

In Sullivan v. Belmont Center for Comprehensive Treatment, the three-judge panel affirmed a Philadelphia trial court’s denial of plaintiff Phyllis Sullivan’s 2002 petition to remove the non pros judgment it had entered against her in 1999.

“While we agree that the typographical error that occurred in assigning the matter in the court system may have caused some delay in counsel being aware that a non pros had been entered,” President Judge Joseph A. Del Sole wrote, “we believe an attorney working diligently on behalf of his client would have discovered the entry of non pros prior to the expiration of three years.”

Del Sole was joined by Judges Joseph A. Hudock and Debra M. Todd.

According to the opinion, Sullivan allegedly suffered injuries after falling while on the property of the Belmont Center for Comprehensive Treatment in February 1997.

The Belmont Center is near the Wynnefield Heights neighborhood of the city.

Sullivan filed suit in January 1999, the opinion states. For some reason, the action proceeded through the Philadelphia Common Pleas Court’s Complex Litigation Center, a special court designed to handle multi-filed, complex mass tort cases. Additionally, the plaintiff’s attorney of record in the matter was listed as Barry Isenman, while Sullivan was actually represented throughout the case by Aaron S. Friedmann.

According to the state Supreme Court’s online attorney registration database, the ID number for Isenman, an Illinois-based lawyer, is 40956; 40596 is the number for Friedmann, a Center City attorney.

In late April 1999, according to the opinion, the trial court dismissed Sullivan’s complaint, entering a non pros order in Belmont Center’s favor. In May 2002, Sullivan filed a petition to vacate with the trial court that was granted roughly seven weeks later. But Belmont Center soon appealed the vacation order, and a non pros order against Sullivan was re-entered in mid-September 2002. The trial court denied Sullivan’s subsequent petition to vacate.

The panel noted that to remove a trial court’s order of non pros, according to the Pennsylvania Rules of Civil Procedure, a petition to open must be promptly filed, the delay must be reasonably explained and the petitioner must show facts that support a cause of action.

The opinion states that when Belmont Center appealed the vacation of the non pros order in the summer of 2002, it argued that it had never been served with any papers concerning Sullivan’s lawsuit nor her petition to vacate.

The panel agreed with the trial court’s ultimate decision that the elements necessary to remove the non pros order against Sullivan had not been established.

The judges found that Sullivan and Friedmann should have been alerted to the fact that something was amiss when they did not receive a case management order from Philadelphia common pleas.

“Appellant’s failure to receive such an order would have been cause for an inquiry into the situation,” Del Sole wrote. “Thus, we cannot agree that appellant’s three-year delay in filing its petition to remove non pros was excusable. Thus, we find that the petition was not timely filed.”

The panel concluded that, given the clerical errors involved, “some delay” in following through on the matter could have been justified. However, Del Sole wrote, “there is no reasonable explanation or legitimate excuse for failing to attempt to prosecute the case for three years.”

The Belmont Center was represented in the matter by Robert B. Mulhern Jr. of Swartz Campbell. He did not immediately respond to a call seeking comment.

Friedmann declined to comment, saying that he had not had the chance to discuss the court’s opinion with his client.

(Copies of the four-page opinion in Sullivan v. Belmont Center for Comprehensive Treatment , PICS No. 04-0653, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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