The Bank of New York Mellon v. Dimou, J.
The Bank of New York Mellon v. Dimou, J. No. 3804 EDA 2015
| Pa. Super. Ct. | May 4, 2017Background
- Bank of New York Mellon, as trustee, filed a mortgage foreclosure action against John and Anna Dimou; the trial court granted summary judgment for defendants after plaintiff's counsel failed to file a timely response.
- The trial court entered judgment dismissing the foreclosure complaint and additionally dismissed it "with prejudice."
- Appellant (the Bank) challenged the dismissal with prejudice, arguing a dismissal for procedural failure (akin to a judgment of non pros) is not an adjudication on the merits and should not bar future foreclosure claims.
- The trial court relied on cases (including Werner and Pride Contracting) to justify dismissal with prejudice as an appropriate sanction for the failure to respond.
- The panel majority affirmed the trial court's grant of summary judgment; Judge Ott concurred in part but dissented as to the dismissal-with-prejudice component.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment may be entered against a party who fails to respond to the motion | Failure to respond should not result in preclusive adjudication on the merits; dismissal should not bar foreclosure claims | A party who does not respond is subject to summary judgment under Pa.R.C.P. 1035.3(d) | Court: Summary judgment may be entered against a non‑responding party (affirmed) |
| Whether dismissing the complaint "with prejudice" based on failure to respond operates as a merits adjudication and bars future actions | A dismissal for failure to prosecute/response is like a non pros and is not res judicata; therefore should not be with prejudice | Trial court argued dismissal with prejudice is an appropriate sanction given counsel's lack of timely response and court efficiency concerns | Judge Ott: Dismissal with prejudice was error — procedural dismissal is not a merits adjudication and should not have res judicata effect (would reverse that portion) |
| Whether sanctions (dismissal with prejudice) were justified absent findings of willfulness or prejudice | Appellant: No record finding of willful noncompliance or actual prejudice; extreme sanction inappropriate | Trial court: Counsel showed lack of interest in prosecuting and disregarded judicial time, supporting dismissal | Judge Ott: Harsh sanction requires extreme circumstances; record lacks requisite findings, so dismissal with prejudice was improper |
Key Cases Cited
- Hatchigian v. Koch, 553 A.2d 1018 (Pa. Super. 1989) (non pros is not a judgment on the merits and cannot have res judicata effect)
- Gutman v. Giordano, 557 A.2d 782 (Pa. Super. 1989) (non pros for failure to answer a trial listing is not an adjudication on the merits)
- Municipality of Monroeville v. Liberatore, 736 A.2d 31 (Pa. Cmwlth. 1999) (dismissal with prejudice for failure to prosecute is not intended to be res judicata on the merits)
- Werner v. Office of Administration, 701 A.2d 796 (Pa. Cmwlth. 1997) (affirming dismissal with prejudice where no jurisdiction to address issues and failure to respond was inexcusable)
- Pride Contracting, Inc. v. Biehn Construction, Inc., 553 A.2d 82 (Pa. Super. 1989) (dismissal with prejudice as discovery sanction is extreme and requires willful noncompliance and prejudice to opponent)
- Azzarelli v. City of Scranton, 655 A.2d 648 (Pa. Cmwlth. 1995) (defective service and lengthy delay can justify dismissal where prejudice is established)