Bartolomeo v. Marshall
69 A.3d 610
Pa. Super. Ct.2013Background
- Decedent Daniel Bartolomeo died after attending a party on property owned by Steven and Tammy Marshall; the property later transferred to Marshall Tree Experts, Inc. (Appellee) but there is no indication Appellee owned the property during the incident.
- Appellants (Orlando Bartolomeo as administrator and Mary Bartolomeo) sued the Marshalls and Appellee; a judgment of non pros was entered against Appellants for failure to file a complaint.
- Appellee notified Appellants of its intent to enter judgment of non pros in March 2011; judgment entered March 28, 2011.
- Appellants, with new counsel, filed a Petition To Open Judgment Of Non Pros on May 26, 2011; the trial court denied the petition and later denied a motion for reconsideration.
- The trial court held: (i) the deviation from Local Rule L237.4 was a slight defect not affecting substantial rights, (ii) Appellants had adequate notice and time to file, (iii) prior counsel’s actions did not excuse the delay, (iv) there was no meritorious social-host claim against Appellee, and (v) no recovery was barred by the no-felony-conviction rule; court affirmed the denial of the petition to open.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the deviation from L237.4 violate Appellants' rights? | Bartolomeo argues defect prejudiced rights. | Appellee argues deviation was slight and did not affect substantive rights. | No relief; defect slight and rights not affected. |
| Was notice adequate to permit timely petition to open? | Appellants lacked adequate notice to file within 10 days. | Notice substantially complied; counsel of record received timely notice. | Adequate notice; timely petition not shown. |
| Were previous counsel's actions a basis to open the judgment? | Delays attributed to prior counsel justified opening. | Delay was unreasonable and not meritorious; new counsel advised timely action. | No merit; delays not excused. |
| Did Appellee provide alcohol/drugs or cause social-host liability? | Appellee supplied or knowingly facilitated intoxicants. | No evidence Appellee supplied intoxicants; no social-host liability shown. | No basis for social-host liability against Appellee. |
| Does the no-felony-conviction recovery rule bar recovery here? | Decedent's conduct could bar recovery under rule. | Ingesting oxycodone would be a misdemeanor; not a bar. | Alternate basis; court affirmed on other grounds; no recovery barred by rule. |
Key Cases Cited
- Madrid v. Alpine Mountain Corp., 24 A.3d 380 (Pa.Super.2011) (three-pronged test for opening judgment of non pros; timely filing, reasonable excuse, meritorious action)
- Allstate Ins. Co. v. McNichol, 617 A.2d 333 (Pa.Super.1992) (substantial rights respected where actual notice given despite procedural defects)
- Alumni Ass’n v. Sullivan, 572 A.2d 1209 (Pa.1990) (requirement to show defendant knowingly supplied intoxicants for social-host liability)
- Congini v. Portersville Valve Co., 470 A.2d 515 (Pa.1983) (knowingly furnished intoxicants required for social-host liability)
- Espenshade v. Espenshade, 729 A.2d 1239 (Pa.Super.1999) (court may affirm on any ground supported by the record)
- Holt v. Navarro, 932 A.2d 915 (Pa.Super.2007) (recovery barred for certain serious offenses by plaintiff)
- Mineo v. Eureka Sec. Fire & Marine Ins. Co., 125 A.2d 612 (Pa.1956) (recovery barred for certain offenses; relevant to no-felony rule)
- Hurtt v. Stirone, 206 A.2d 624 (Pa.1965) (prior conviction context and civil recovery implications)
- Looby v. Local 13 Productions, 751 A.2d 220 (Pa.Super.2000) (social-host recovery considerations in Pa. Superior Court)