Madrid v. ALPINE MOUNTAIN CORP.

thеm- language the deeds attorneys, to ability to sell lot holders’ making the

selves approv- on LCMA conditional property

al, abundantly apparent it all owner- relinquished has never

LCMA Camp properties. interest in the

ship no error with

Accordingly, we discern surrounding reliance on

the lower courts’ uncertainty to eliminate

circumstances in the conveyed type of estate

over a fee agree

Wagner deeds. As subsequent subject to a condition

simple a re- conveyed Wagners with LCMA, in the we af-

versionary interest entered below.

firm the affirmed.

Judgment MADRID and Julliette

Carlos

Madrid, Appellants CORPORATION,

ALPINE MOUNTAIN

Appellee. Pennsylvania. Court of

Argued Feb. 2011.

Filed June

employees. 15, 2007, On September Alpine Madrids served with a supplemen- admissions, request tal for which were timely answered. No further docket activ- ity occurred. 27, 2010, January

On years two and four months after the Madrids’ last docket ac- case, tivity in the Alpine filed a motion to for prosecution. dismiss lack of The Ma- rеsponded drids and the trial court heard argument, oral after which it issued an order dismissing the Madrids’ action on 8, 29, 2010, March 2010. On March Madrids filed a notice appeal to this Court, which subsequently withdrew after Superior Court Central Legal Staff informed counsel for the Madrids that their appeal may have prema- been 3, 2010, ture. On May the Madrids filed a petition to open judgment of non Greenfield, 3051, pursuant Marc F. for Pa.R.C.P. which was appellants. de- 5, nied order May dated 2010. This Paoli, Hugh Emory, M. for appellee. followed, in which the Madrids raise the following issue for our review: BENDER, LAZARUS, BEFORE: *, DID THE TRIAL STRASSBURGER JJ. COURT ERR IN DENYING [THE PETI- MADRIDS’] LAZARUS, OPINION BY J.: TION TO OPEN JUDGMENT OF NON-PROS FOR ALLEGED LACK (“the Carlos and Julliette Madrid Ma- OF PROSECUTION? drids”) appeal from the order entered in the Court of Common Pleas of Monroe Brief of Appellants, at 4. 4, 2010, County May on denying peti- “A request open a judgment of

tion to After pros, like opening of a default review, careful we affirm. judgment, inis the nature of an appeal to Carlos allegedly inju- Madrid sustained the equitable powers and, of the court ries while tubing premises snow on the order for the to be Alpine Corporation 1) Mountain (“Alpine”) opened, on three elements must coalesce: 11, January 2004. The brought Madrids must be promptly premises 2) liability against Alpine filed; suit the default or must be 3) December 2005. Depositions reasonably excused; explained or DeConti, witness, Madrids and Nick facts must be shown to support exist which January were taken on A 2007. motion a cause of Jung action.” v. St. Paul’s Parish, summary judgment brought by Alpine 560 A.2d Thereafter, (1989); May was denied on Pa.R.C.P. 3051. A depositions additional wеre taken of Alpine only Rule 3051 is the means * Judge assigned Retired Senior Court. c.Therefore, erred in court] trial [the be to Dis- [Alpine’s] Motion Pa.R.C.P. Comment. See

sought. prove failed to [Alpine] to ‍‌‌​​‌‌‌‌‌‌‌​​‌​‌‌‌​‌‌‌​‌​‌‌‌​‌​‌​​‌​​​​​​‌​​‌​​‌‍a because related miss Any appeal itself, but judgment aspects requisite from the three of lies not all open to or petition of a from the denial test. Messiah, Id.; 799 A.2d Stephens strike. of Matters Concise Statement Appellants’ Finally, failure (Pa.Super.2002). 798 6/21/10, Appeal, at 2. In Complained of оn to rule-compliant petition timely or file a to contrast, Madrids framed their issue any right to a waiver of operates open on thusly appeal: in their brief underlying concerning issues address [d]enying trial court err in [the Did the at pros. Id. Judgment of Open Petition to Madrids’] deny a decision to

A trial court’s Alleged Lack of Prosecu- Non-Pros of strike a open to or tion? of on the abuse is scrutinized non at 4. Appellant, Brief of review. appellate standard of discretion raised in the Mа- upon Based the issues Edelstein, Margolis 861 Parkway Corp. v. 1925(b) statement, the trial drids’ Rule (citation (Pa.Super.2004) 265 pursuant to opinion a brief court issued omitted). 1925(a), upon in which it relied its Rule sub addressing to Prior its opinion support in order previous we appeal, Madrids’ must stance of the and conclud- granting judgment they properly pre whether determine ed: issue have raised on single served in the nothing We can find Rules failure to include appeal. appellant’s An ap- Procedure which allоws an Appellate 1925(b) in his Rule statement an issue peal a second time the same case purposes appellate that issue for waives underlying order. based on the same Quick Reilly Incorpo Karn v. & review. respectfully request We rated, (Pa.Super.2006) 912 A.2d 335 quash duplica- to Court omitted). (citation Here, the Pa.R.A.P. tive, untimely and in violation of the 1925(b) the Madrids statement rules. only the trial issues related raises 6/21/10, Opinion, (empha- Trial at Court underlying grant court’s added). the Madrids did not raise sis As proсe pros. Specifically, reciting after any issues related the trial court’s denial of matter, of the the Ma background dural 1925(b) petition to in their Rule following: drids assert statement, was not provided the trial court Dismiss, filing a. In its Motion to [Al- the matter. opportunity an address prongs must meet all three pine] Rather, the manner in which the based on in question. the test 1925(b) in the Rule issues were framed proving that [Alpine] b. Since failed statement, appeared the trial court to be a want demonstrated Mаdrids] [the impression the Madrids failing proceed diligence of due again appealing were its order promptitude, with reasonable previously We have pros. compelling there has been no reason that: noted delay, that the has for the what issues guess a court has to When prejudice, [Motion caused some is not appellant appealing, been an is should have de- Dismiss] meaningful i'eview. When enough for nied. identify all appellant adequately underlying judg- fails issues relаted to the sought manner the issues to ment of non a concise the trial court pursued appeal, be First, the Madrids their petition impeded preparation legal in its days after the of judgment analysis pertinent which is to those is- pros.1 We have previously held sues. 37, 41, unexplained delays and 47 render a to open untimely. (citation omitted). Kam, 912 A.2d at 335 Mint, Inc., Hatgimisios v. Dave’s N.E. light foregoing, (1977); conclude Pa.Super. 380 A.2d Toczy Co., preserve the Madrids have failed to lowski v. Bindery General 359 Pa.Su (1986); any per. 519 A.2d 500 issues related to the denial of their Schutte v. Center, Inc., such, Valley Bargain Pa.Super. petition open. any Rule 3051 to As (1977).2 532, 375 A.2d 368 The Madrids argument related thereto is waived. See argue delay that their in filing “is reason Kam, alone, ‍‌‌​​‌‌‌‌‌‌‌​​‌​‌‌‌​‌‌‌​‌​‌‌‌​‌​‌​​‌​​​​​​‌​​‌​​‌‍supra. On that basis ably explained filing because the of the affirm the order of the trial court.

petition was due to thought [the Madrids’] that the lower court’s March 2010 Order However, even if we were not to opinion ... was a final appealable have the found Madrids’ issue waived for required order which appeal instant to the 1925(b) in their failure to raise it Rule Brief Appellant, Court.” at 7. statement, they would still be entitled to However, a brief review of Rule 3051 and above, no relief. As stated in order to the prompt Comments thereto would have prevail petition open on a to under Rule ly the faulty disabused Madrids of that 3051, party satisfy a must three elements: ignorance procedural notion. As rules 1) petition open the to must be promptly justify provide does nоt or a reasonable 2) filed; delay the default or must be explanation for failure comply, to we find 3) excused; reasonably explained or the petition untimely. Madrids’ was facts must be shown to exist which support Parkway See Corp., 861 A.2d at 269. Jung, supra; a cause of action. See Pa. 3051(b). Here, R.C.P. the Madrids have Second, significantly, and more satisfy failed to two of the three elements petition Rule 3051 the Madrids and, such, under Rule 3051 as have provide any explanation waived failed to for 1. Legal The Madrids claim that their Rule 3051 intervention of this Central Court's Indeed, petition days was filed mere 45 after the Staff. had our staff not contacted However, of non was entered. suggest appeal prema them to that their was ture, independent our own calculation reveals that proceeded case would have to the petition thereafter. panel, merits which would have been con strained to conclude that the Madrids had asserts, failing petition waived all сlaims to file a 2. The dissent based the facts of Schutte, Sahutsky under Rule 3051. See v. H.H. Knoe that we should exclude from our cal- Sons, Madrids, bel 566 Pa. 782 A.2d 996 days during culation the which the (failure petition prior to file Rule having to improperly filed an to this appeal operates complete waiver of petition open Court rather than a to concerning judgment claims of error of non "operating Rule were under the mistak- Thus, pros; quashal inappropriate). [they] steps en belief thаt had taken we can neces- sary protect Dissenting to see no reason to exclude from [their] interests.” our calculation Opinion, regard, days during at 387. In we note those which the were in Madrids only the Madrids have been able to contravention of the clear mandate of Rule sustain long their action as have due 3051. request denying tion in inactivity in year period nearly 2% pros.4 matter led civil underlying Rather, pros.3 grant affirmed. Order of Rule misunderstanding in a clear files a explanation Judgе STRASSBURGER provided the Madrids Dissenting Opinion. delay filing 56-day Judgment of Open Petition open. See BY DISSENTING OPINION ¶ 5/3/10, Where a Non-Pros, at STRASSBURGER, J.: excuse for a reasonable provide fails dissent. respectfully underlying delay prosecution protects A properly denied. claim, par- caused an adverse & Mychak, Geckle hutsky Sa claims. ty’s pursuing unreasonable Welker, P.C., (Pa.Super.2006) 900 A.2d 866 Compa- In Penn Inc. v. Insurance Piping, properly entered (judgment America, ny North explanation excuse or where no reasonable (1992), held Supreme 1006 our Court A.2d 3051(b)(2). delay); Pa.R.C.P. provided for from two prejudice presumed could be event, acknowledged the Madrids any In on the docket. Howev- years inactivity of ex that “no reasonable argument at oral Halloran, 350, er, Pa. 710 v. Jacobs delay.” for the Trial Court cuse existed (1998), re- Supreme our Court 3/12/10, Thus, by their omis at 3. Opinion, Piping and jected presumption the Penn admission, sion, Ma- well the required that a defendant show actual satisfy the ele have failed to secоnd drids pros. a prejudice to secure non under Rule 3051. required ment Pennsylvania long The have courts comply Madrids have failed to recognized power As the the existence of the judgment with the dictates of Rule we conclude to enter a of non the court consequence long trial court did not abuse its discre- entitled to acknowledging complete lack of to such a should be 3. While nearly activity by for the two- prevail the Madrids if he able to demonstrate a lack оf is September However, year period between 2007 and pro- prejudice. Rule 3051 does July attempt the dissent asserts one acknowledge possibility. vide for such a We to contact counsel for the Madrids' counsel underlying the trial court’s decision to July Alpine Mountain letter in 2009 should pros judgment may enter the have been in non prior period remediate the Madrids’ serve to error, alleged by Alpine in that the Thus, inactivity. of extended dissent not, fact, may have been suffi- Mountain providе failure would excuse the Madrids’ to However, judgment. support a cient to such petition. explanation in its Rule 3051 We opinion, in this we are reasons stated Mirk, Inc., disagree. v. In LaCaffinie underlying unable to reach merits of (Pa.Super.1998), A.2d 361 cited the dis pros. the dissent correct- of non As sent, strictly compliance Court enforced this notes, purview ly it within the of the Su- is required with the three elements set forth in preme Court and its Rules Committee to ap and denied relief because the Rule necessary any changes they may make deem comply pellant had failed with the third governing opening a to the rule non rule, prong requiring petitioner stands, pros. currently a As the law support show facts “to exist which a cause of strictly complied with must be found to have Id. at 362. action.” underly- before we review the Rule 3051 pros. that, ing judgment Because the Ma- argues 4. The dissent because so, compelled failed to do we are drids required prove prejudice in order to re- seeking the triаl court. pros, party affirm the order of ceive a prosecution power of a cause. This the petitioning party has a merito- law, originated in common prior O’Hara, rious Florig cause of action. v. passage grant statute. The of 912 A.2d 323 (Pa.Super.2006). See 3051(b). traditionally based not also Pa.R.C.P. limitations, upon a statute of but rather There is some support for the proposi- upon equitable principle of laches tion that the a judgment which does not involve the passage of a granted should be unless the specific amount of time. Laches arises respondent can prejudice. show Ledger when a defendant’s position rights or Eddy, v. 710 A.2d 1227 (Pa.Super.1998), are 'prejudiced by length so of time and Jacobs, filed 27 after supra, delay, inexcusable plus attendant facts Court was faced with an appeal from an circumstances, that it would be an denying appellant’s order request for relief injustice permit presently the asser- of a judgment of against tiоn of claim him. having Without first examined whether the (internal Id. at 1101-02 quotations and ci- Rule 3051 filed, ‍‌‌​​‌‌‌‌‌‌‌​​‌​‌‌‌​‌‌‌​‌​‌‌‌​‌​‌​​‌​​​​​​‌​​‌​​‌‍was promptly of- omitted) tations (emphasis added in cited good fered a excuse for delay, case). alleged case, a meritorious this Court re- Messick, In Stephens v. 799 A.2d manded for a determination of whether the (Pa.Super.2002), this Court set forth appellee prejudice. suffered requirements a defendant must show However, six months later in LaCaffinie order to obtain a pros: Mirk, Inc., (Pa.Su- 719 A.2d 362-63 A court propеrly enter a judg- per.1998), without mentioning Ledger, su- ment of non pros when a pra, we stated: proceeding has shown a want of due April Supreme our Court re diligence in failing proceed with rea- versed Penn Piping in Jacobs v. Hallo sonable promptitude, and there has been ran, ], Shope Eagle, [ Pa. 710 [551 no compelling reason for the delay, and (1998)], A.2d and Marino v. Hack delay has caused some prejudice to man, Pa. [551 710 A.2d 1108 party, the adverse such as the death or (1998) In]. these cases thе Court aban unexplained absence of material wit- doned the presumption of prejudice nesses. enunciated in Piping Penn and held a Id. at (citing James Brothers Limber defendant must establish preju actual Company v. Banking Union and Trust dice from delay before pros non is Bois, Company Du appropriate. Appellants suggest the re (1968)). Thus, a trial court Jacobs, versal of Penn Piping Shope may not enter a pros prohibited Marino the trial court finding without that the defendant has suf- entering from the judgment fered actual prejudice, even if there is no without first determining appellee actu compelling reason for a delay. Id. at 798. ally prejudice. suffered hand,

On the other in ascertaining While appellants accurately state the whether is law, entitled to relief from a change in the their petition still judgment of non pros, a different test needed meet the three required ele- (1) applies. We examine whether the peti- ments set forth in Pa.R.C.P. 3051.... filed, tion for promptly rеlief was there The abandonment of the presumptive is a explanation reasonable for the prejudice of Penn Piping does not entry resulted in the pros, of the non equate to the abandonment of Rule 3051. early stages litigation did meet have failed to

Appellants case). progress them re- affect the necessary grant obligations The decisions the non lief from Second, Appellee has not demonstrated Jacobs, specifically and Marino Shope witness’s recollection of require- long-standing recognize it two or any worse now than was events is removal of ments for the affi- years ago. Appellee three offers seeking a party not relieve pros, and do Zakrzewski, in which he of Matthew davit of the need to a non to remove description of the states that he fits the the Rule. comply with tubing hill working who was at the person Id. at 362-63. injury, but that he on the date of the

Hence, the law is this: al- recollection of the inci- presently thе state of has no delay not excuse for not offer evidence though Appellee a reasonable dent. does entry thwart of a non the lack of recollection is related to required to one; de- To the judgment, required any delay by Appellants. it is caused being qua testimony the sine offered spite prejudice contrary, deposition actual of a proper of a Mr. before his death was non DeConti question prejudice early is com- Mr. Zakrzewski pros, spoke he with considering when pletely ignored and even at that time Mr. Zakrzew- anomaly rea- legal Appel- This defies remember the incident. one. ski did not son, Supreme implore our Court names at this time another witness lee also rectify it in our employed by Appellee its Rules who at the time Committee was not, jurisprudence.5 of the incident but who now is claim- will ing that he have diminished recollec- required to show Appellee Because Appellee tion of the events. offers no get pros, Ap- actual ever had rele- evidence that this witness be entitled to have the pellants should information, vant let alone information that if the record does not show pros opened has been lost to time. prejudice. Appellee suffered Third, Appellee claims that because it ways claims three in which it Appellee entity, now leases the ski area to another (1) by delays: prejudiced Appellants’ was longer it “no has the kind of access tо (2) DeConti, the death of witness Nicholas personnel records and which it had when it the diminished recollections of other wit- operator was both the owner and of the ski nesses, and reduced access to docu- most, area.” Brief at 13. At Appellee’s currently ments since it leases the ski area claim vague, unsupported establishes entity. to another I see no merit in of inconvenience, prejudice. not actual arguments. these First, passed away Appellee Mr. DeConti in Because failed to establish that discovery while in ongoing March 2007 it suffered actual as a result of Any any delay by Appellants, ill I would Appellee the case. effects caused trial unavailability suffer due to Mr. DeConti’s hold that the court erred any delay motion to dismiss for lack of Appellee’s cannot be related caused Florig, prosecution, See 912 A.2d at 326- and would the Appellants. (noting pros. 27 n. 11 the death of a witness in of non trilogy. prior the Jacobs 5. It should be noted that Rule 3051 was adopted in 1991 and amended in both accepting years inactivity 2]é of Rule for in the underlying Even the framework of I still dissent because I believe there was no docket activity, case. While has majority misapplied the Rule I that the a supports do not believe record First, holds that majority standard. of finding years inactivity. of There is 2J£ Appellants failed to file their for Appellants no indication that failed to act timely majority in a fashion. The diligently from time the case was filed entry between the of the counts 2005 until December the last docket Appel- non pros and the date entry in In September July the petition, prior lants filed and cites deci- Appellants’ Appellee’s counsel contacted delays in which of than this sions less time inquire counsel whether Appellee were held render the a wished to schedule medical examination wanting promptness. majority for The Appellant, and to inform Appellee that exclude does not from its calculation Appellants ready were to proceed with during Appellants ‍‌‌​​‌‌‌‌‌‌‌​​‌​‌‌‌​‌‌‌​‌​‌‌‌​‌​‌​​‌​​​​​​‌​​‌​​‌‍time awaited res- settlement negotiations or trial. Rather appeal. olution of their first letter, than to this respond Appellee’s six counsel months and then waited agree I with majority While pros. the motion for non This is not ignorance procedural jus- rules does languished system case that in the for tify comply, prior failure cases we years without action. would hold that the prompt- have excluded such time from our preceded delays entry minor example, ness calculation. For Ste- were pros judgment not unreason- phens, supra, appellant also erroneous- able. ly appeal pros judgment peti- rather than file Third, majority opines that Appel- relief from the tion for lants failed to establish that have appellant We determined that majority meritorious cause action. The good waiting did not have a excuse four for Appellants’ states that averment that the years quash- and two months between the record existence of a shows the valid cause al of the and the the Rule filing of action, supported the denial of Appel- petition. Id. at 796. Sclmtte lee’s motion the pleadings Center, Bargain Pa.Super. Valley summary judgment, and motion for falls (1977), majority 375 A.2d 368 which the requirement short of the established show this cites to Court has held a in which Stephens, supra, we noted that 47 days petition untimely, rendered a the appellant any specific failеd to “aver days did not include in the calculation during discovery facts elicited that would during appellant oper- which the had been that her cause tend show of action is ating under the mistaken belief that it had meritorious.” Id. at 800. steps necessary protect taken its This in an inaccurate statement of the interests. requirement seeking case, instant Appellants In the from a establish the ten petition their Rule a mere existence of a meritorious cause of action. Legal after the Court Central Supreme Our Court has explained this re- Staff informed them that the was quirement if “is satisfied the claim as likely premature. Ap- I would hold pleaded proved at trial would entitle

pellants’ petition promptly filed. plaintiff] to relief.” [the v. Simmons Second, Luallen, majority determined that (2000).

Appellants provide did not an explanation expressly rejected We have Stephens dicta in contrary to Simmons RABATIN, Executor of Ernest G. majority: by the

cited Cameron, of Scot W. Estate by the citation bears mention It Deceased, Appellant in Ste- decision to this Court’s appellees dicta, that ], in suggested phens [ whether a meritorious into inquiry CORPORATION, GLOVE ALLIED neces- pleaded been action has cause of Inc., Corporation, Cashco, suc CBS of “facts elicited an examination sitates Westinghouse merger cessor persuasive. discovery,” is during Corpora Corporation, Electric CBS Stephens, supra, specifical- The Court Inc., tion, Re and Viacom Corhаrt could not evade that a ly held Co., Inc., Company, fractories Crane filing requirements Dezurik, Inc., Corporation, Dravo by relying Pa.R.C.P. Corporation, Eaton as successor-in- improperly for reconsideration Inc., Cutler-Hammer, interest specifi- did not The Court appeal. Eichleay Electrical, Inc., Eaton n/k/a stat- requirements of cally address Supply Corpo Corporation, Fairmont action, or cause of ing a meritorious Company, ration, Supply Fairmont law as stated Sim- alter the otherwise Foseco, Inc., Sealing Garlock Tech Moreover, since decision mons [ ]. LLC, formerly nologies, known Simmons, by the supra, was rendered Garlock, Inc., General Electric Com Court, any incon- Pennsylvania Supreme Inc., pany, Pumps, Hedman Goulds the two cases would between sistencies Mines, Ltd., Honeywell, Inc., Hunter the law following in favor of be resolved Industries, Corporation, IMO Sales Supreme Court. as stated Inc., Corp., Ingersoll-Rand Insul Inc., Inc., Industries, Company, ITT A.2d at 329 n. Because Florig, 912 Inc., America, as succes I.U. North that, if Appellants’ complaint alleges facts Garp Company, merger to the sor trial, would entitle them to re- proven at formerly Gage Compa known as the lief, hold that have estab- would ny, formerly Pittsburgh known as cause lished the existence of a meritorious Company, Gage Supply Mal of action. Inc., Group, in its own linckrodt Appellants have met As I believe right and as successor-in-interest of Rule I would requirements Inc., Group, Imcera and Intеrnation hold that the trial court erred Corpora al Minerals and Chemical would Appellee’s motion to dismiss and tion, Supply and Gasket Melrath Company, Metropolitan Life Insur Metropolitan Company,

ance f/k/a Company, Minnotte Insurance Con Corporation, tracting M.S. Jacobs & Associates, Inc., Pumps, Inc., Nagle Ogelbay Company, also Norton Inc., Services, known as On Marine division, Engineer the ‍‌‌​​‌‌‌‌‌‌‌​​‌​‌‌‌​‌‌‌​‌​‌‌‌​‌​‌​​‌​​​​​​‌​​‌​​‌‍Ferro and its Division, Piping Company, ing Power Refractories, Inc., formerly Premier Adience, Inc., successor-in- known as

Case Details

Case Name: Madrid v. ALPINE MOUNTAIN CORP.

Court Name: Superior Court of Pennsylvania

Date Published: Jun 3, 2011

Citation: 24 A.3d 380

Docket Number: 1553 EDA 2010

Court Abbreviation: Pa. Super. Ct.