664 A.2d 1110 | Pa. Commw. Ct. | 1995
Ivan, Debra and Deidre Orriola appeal from the order of the Court of Common Pleas of Erie County that denied their petition for relief from a judgment of non pros. We affirm.
In 1982, the Orriolas were involved in a car accident. In 1984, the Orriolas filed a complaint against several Defendants.
On appeal to this Court,
In Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992), the Supreme Court addressed the requirements for a judgment of non pros. Penn Piping held that a trial court properly exercises its discretion in entering a judgment of non pros when: 1) a party has shown a lack of due diligence by failing to proceed with reasonable promptness; 2) there is no compelling reason for the delay;
First, we must determine whether the Ornólas diligently pursued the litigation, examining the entire period in which the case failed to move forward and the docket remained inactive. Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992). Because there were two periods of docket inactivity, the first for over two years, the second for approximately four years, under Penn Piping these delays are presumed prejudicial. However, Ornólas assert that there was a compelling reason for their delay based upon the fact that the Smith Defendants had filed a declaratory judgment action and thus, they were awaiting a development in the law.
We note that the declaratory judgment action was not filed until after the first two year, eight month absence of docket entries. This alone could have supported the trial court’s denial of Ornólas’ petition to rescind the judgment of non pros. Regardless of this first period of delay,
Further, the record does not show that the Ornólas: 1) tried to move their claim to resolution; or 2) sought a stay pending resolution of the declaratory judgment action. Although no Pennsylvania case law concerns the question of the effect of a declaratory judgment action on an underlying tort case, the determination of whether compelling reason exists is committed to the discretion of a trial court. Rockwood Insurance Co. v. Motor Coils Manufacturing Co., 166 Pa.Commonwealth Ct. 495, 646 A.2d 705 (1994).
Therefore, we hold that the trial court did not abuse its discretion in denying Ornólas’ petition for relief from a judgment of non pros.
Accordingly, we affirm.
ORDER
AND NOW, this 13th day of September, 1995, the order of the Court of Common Pleas of Erie County in the above-captioned matter is hereby affirmed.
. The Defendants include: Janice F. Frick, Paul L. Frick, the Department of Transportation (DOT), McKean Township, Merrill L. Smith, individually and d/b/a M.L.S., Inc., Merrill L. Smith Realty Co. (Smith), Richard L. Wood, Thomas B. Barko, Robert M. Tracy, Thomas H. Hertenstein, Elizabeth G. Hertenstein, Donald G. Fogleboch, Kay J. Fogleboch and the Department of Environmental Resources.
. Our scope of review from a denial of a petition to open/strike a judgment is whether or not the trial court abused its discretion. Sklar v. Harleysville Insurance Co., 526 Pa. 617, 587 A.2d 1386 (1991).
. Per se compelling reasons for delay include bankruptcy, liquidation or other operation of law or in cases awaiting significant developments in the law. Penn Piping.
. No party filed a petition for non pros following this first delay.
.Orriolas also assert that they had entered "settlement negotiations" with DOT and thus, the Defendants were precluded from filing petitions of non pros. However, ongoing settlement negotiations are not compelling reasons for inactivity. Gates v. Servicemaster Commercial Service, 428 Pa. Superior Ct. 568, 631 A.2d 677 (1993).