Motion Practice • Settlement • Civil Procedure • Judgments
Verdone v. Pocono Village Mall, PICS Case No. 14-0519 (C.P. Monroe March 3, 2014) Zulick, J. (7 pages).
Plaintiffs Diane and Steven Verdone petitioned to open a judgment of non pros. Petition denied.
On July 6, 2002, due to an obscured step, Ms. Verdone fell in front of the Blockbuster Video store at defendant Pocono Village Mall. Verdone filed suit on June 20, 2004 and Pocono moved to dismiss due to inactivity on Sept. 13, 2012. Dismissal was granted. Through a new attorney, the Verdones filed the present petition to open the judgment of non pros; Pocono opposed arguing the motion was frivolous and sought attorney fees.
A petition to open a judgment of non pros that was dismissed for inactivity was governed by Pa.R.C.P §3051(c),which required a showing that: (1) the petition was timely filed, (2) there was a meritorious cause of action and (3) the record supported entry of a judgment of non pros for inactivity. Verdone argued their prior attorney failed to inform them their action was dismissed. Verdone cited Esslinger v. Sun Refining and Marketing Co., 549 A.2d 600 (Pa. Super. 1988), which permitted a petition 15 months after dismissal and as the result of attorney negligence.
The court found the petition failed to meet the burden of §3051. The court held the petition was not filed for 11 months after the non pros was entered. Further, the court stated Verdone presented no evidence of attorney negligence other than the allegations of their new counsel.
Next, the court stated that the second reason the non pros would not be opened was because the record of the proceedings granting the judgment of non pros did not support a finding that the requirements for entry of a judgment of non pros for inactivity had been satisfied. Specifically, Verdone failed to oppose Pocono’s motion to dismiss for inactivity, failed to appear for argument, and no concrete explanation or excuse for the delay was provided. The court found there was a lack of due diligence in prosecuting the case, which had no docket activity for the prior seven years, no reason for the delay, and Pocono’s showed prejudice in the ability to defend the case. The court, however, denied attorney fees ruling the petition was not brought arbitrarily or in bad faith. Petition to open a judgment of non pros was denied.