Shan A. STEPHENS, Appellant, v. John W. MESSICK and Eunice A. Messick, h/w, and Wawa, Inc., Appellees.
No. 2804 PHL 96
Superior Court of Pennsylvania.
Argued Jan. 15, 2002. Filed April 18, 2002.
793 A.2d 793
Before HUDOCK, KLEIN and BECK, JJ.
¶ 40 For the above reasons, we find that the trial court erred in dismissing Appellant‘s complaint on the grounds that litigants cannot seek state torts remedies for litigation abuse that occurred in federal court. Because the trial court did not address the legal sufficiency of Appellant‘s complaint in light of the appropriate state torts law, we decline to do so in the first instance. We reverse the order of the trial court and reinstate Appellant‘s complaint. We remand for further proceedings consistent with this opinion.
¶ 41 Order reversed. The complaint is reinstated and the case is remanded for further proceedings. Jurisdiction relinquished.
Brett L. Messinger, Malvern, for appellee.
KLEIN, J.
¶ 1 Shan Stephens appeаls from the order entered May 10, 2001 in the Court of Common Pleas of Delaware County that denied her petition, filed February 16, 2001, seeking to strike or, alternatively, open the judgment of non pros entered July, 1996. While the judgment of non pros was entered July 3, 1996, her petition to strike or open was not filed until February 16, 2001, four years and two months after this Court quashed her improper direct appeal of the entry of the judgment of non pros. Because there is no excuse for this delay, no issues are preserved for our review concerning the judgment of non pros and we affirm the decision of the trial court refusing to strike it or open it.
¶ 2 The critical issue in this case is whether Stephens waived her challenge to the initial entry of the non pros by failing to promptly file a
¶ 3 As will be discussed in greater detail below, the trial court entered a judgment of non pros pursuant to the then controlling precedent of Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), following a period of docket inactivity that exceeded two years. In response, Stephens simultaneously filed a notice of appeal to our Court and a motion for reconsideration in the trial court. We quashed the appeal and the trial court did not rule on the motion for reconsiderаtion.
¶ 4 Four years and two months after we quashed Stephens’ improper direct appeal of the judgment of non pros, she filed a
¶ 5 Stephens now appeals the trial court‘s order denying her petition to strike or open. Her presentation of thе issues to some extent combines the consideration of the two separate periods of delay. She frames the issues for our review as follows:
WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN FINDING THAT [STEPHENS] DID NOT OFFER A REASONABLE EXPLANATION FOR THE PERIODS OF DOCKET INACTIVITY WHEN THOSE PERIODS OF DOCKET INACTIVITY WERE THE RESULT OF THE LOWER COURT‘S ADMINISTRATIVE DELAY? - WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN FINDING THAT [WAWA] ESTABLISHED THE EXISTENCE OF ACTUAL PREJUDICE DUE TO THE DOCKET INACTIVITY.
Appellant‘s brief, p. 4.
¶ 6 On the other hand, Appellees John W. Messick, Eunice A. Messick and Wawa, Inc. (collectively Wawa) contend that this appeal concerns only the trial court‘s refusal to strike or open the judgment of non pros. They counter-state the issue on appeal as follows:
- WHETHER THE TRIAL COURT ERRED IN DENYING [STEPHENS‘] MOTION TO STRIKE OR, IN THE ALTERNATIVE, TO OPEN JUDGMENT OF NON PROS?
Appellees’ brief, p. 1.
¶ 7 Implicit in Wawa‘s counterstatement of the issue is the contention that Stephens has waived any issues concerning the entry of the judgment of non pros. As we may not consider issues that have not been properly preserved, Arthur v. Kuchar, 546 Pa. 12, 682 A.2d 1250, 1255 (1996), our first task is to determine what issues, if any, have been properly preserved for our review. We conclude that Stephens’ failure to promptly file a
¶ 8 It is significant that the initial entry of a judgment of non pros and a subsequent request for relief from a judgment of non pros are governed by different standards. It is helpful to review them here together with their applicable standards of appellate review.
¶ 9 Our Supreme Court set forth a three-part test for entering a judgment of non pros in James Brothers Company v. Union Banking and Trust Company of Du Bois, 432 Pa. 129, 247 A.2d 587 (1968):
A Court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death or unexplained absence of material witnesses.
Id. at 132 (at 589). Subsequently, in Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), the Supreme Court refined the prejudice element of the James Brothers test by creating a presumption of prejudice in any case in which there was delay, evidencеd by a lack of docket activity, lasting two years or more. Penn Piping, with its presumption of prejudice, was the controlling precedent at the time the trial court granted Wawa‘s motion for entry of the judgment of non pros in this case.
¶ 10 More recently, in Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998), our Supreme Court abandoned the Penn Piping presumption of prejudice and reinstated the original James Brothers
¶ 11 Once a judgment of non pros has been entered, a different three-part test determines whether a party may obtain relief from the judgment. First, the petition seeking relief from the judgment of non pros must be promptly filed. Second, there must be a reasonable explanation for the delay that preceded the entry of the judgment of non pros. Third, the movant must show facts to exist that would support a meritorious cause of action. Pine Township Water Co., Inc. v. Felmont Oil Corp., 425 Pa.Super. 473, 625 A.2d 703, 705 (1993);
¶ 12 Here, Stephens complains that the judgment of non pros should not have been entered in the first instance. Although her appeal is taken, as it must be, from the final appealablе order denying her
¶ 13 Notwithstanding the express provisions of
¶ 14 The trial court‘s docket next reflects that on November 27, 1996, Stephens filed a supplemental memorandum of law in support of her motion for reconsideration. Wawa filed a responsive memorandum of law on June 27, 1997.
¶ 15 There was no further docket activity for more than four years, until January 22, 2001. On that date, the trial court issued a Notice of Intention to Terminate Civil action pursuant to Delaware County Local Civil Rule *34 and Pennsylvania Rule of Judicial Administration 1901. Prompted into action by this notice, Stephens filed both a petition to strike or open the judgment of non pros entered on July 3, 1996 and an active status certification on February 16, 2001. Wawa filed an answer in opposition to Stephens’ petition to strike or open the judgment.
¶ 16 Stephens’ petition and Wawa‘s answer were assigned to the Honorable Edward J. Zetusky, Jr. Judge Zetusky conducted a hearing on April 23, 2001. Counsel for both parties presented oral argument, but neither party presented testimony or documentary evidence. By an order dated April 30, 2001, that was deemed to have been entered on the docket upon the giving of Rule 236 Notice on May 10, 2001, Judge Zetusky denied Stephens’ petition to strike or open the judgment of non pros. This timely appeal followed.
¶ 17 Stephens asserts that any blamе for her four year and two month delay in bringing her
¶ 18 We find nothing in Jacobs that relieved Stephens of her obligation to timely file a proper petition to strike or open the judgment of non pros, as required by Pine Township Water Co., notwithstanding that she intended to argue on appeal that the judgment should not have been entered in the first place. At all times relevant to this litigation,
¶ 19 Stephens seeks to avoid this result by arguing that her motion for reconsideration filed 28 days after the entry of the judgment of non pros was the functional equivalent of a
¶ 20 As noted previously, one of the required elements of a
¶ 21 Even if Stephens’ motion for reconsideration did contain all of the required elements of a petition to strike or open pursuant to
¶ 22 Stephens nonetheless persists in blaming the trial court for her delay. She argues that after our Court quashed her improper direct appeal of the judgment of non pros, the trial court should have treated her motion for reconsideration as a petition to strike or open the judgment of non pros. She says the request contained in her supplemental memorandum of law in support of the motion for reconsideration should have been enough to place the burden on the trial court. Even if we were to assume that her motion for reconsideration was still opera-
¶ 23 Stephens’ supplemental memorandum of law called the trial court‘s attention to cases in which motions for reconsideration were treated as petitions to strike or open pursuant to
¶ 24 Even assuming the trial court could have considered the motion for reconsideration as a petition to strike or open the non pros, it would not have been the court‘s burden to make sure that there was a ruling on the motion. A motion for reconsideration appeals to the court‘s discretion, and, in most cases, after the thirty day appeal period passes, the court is without jurisdiction to reconsider its judgment. See
¶ 25 In summary, the trial court found that Stephens did not establish a valid excuse for the four year and two month delay between the quashal of her improper direct appeal of the July 3, 1996 order entering the judgment of non pros and her finally filing a proper
¶ 26 Order affirmed.
¶ 27 BECK, J., files a Concurring Statement.
Concurring Statement by BECK, J.
¶ 2 In order to open a judgment of non pros, the petitioner must 1) promptly file a petition to open, 2) present a reasonable explanation or excuse for the default or delay that precipitated the non pros, and 3) establish that there are sufficient facts to support a cause of action. Kruis v. McKenna, 790 A.2d 322 (Pa.Super.2001). I believe that the trial court did not abuse its discretion in finding that Stephens failed to carry her burden to open the non pros because, as the trial court found, she failed to offer any reasonable explanation for the extensive periods of inactivity and delay in this case. Furthermore, Stephens certainly failed to file a proper petition to open the judgment of non pros promptly, having waited over four years to do so. I agree with the majority‘s ultimate rеsolution of this case, but I believe a discussion of waiver is not relevant.
Notes
We agree that, in an appropriate case, Jacobs permits us to consider whether a judgment of non pros was properly entered in the first instance rather than whether the subsequent petition to strike or open the judgment was properly denied. This, however, is not an appropriate case because Stephens did not promptly file a petition to strike or open the judgment of non pros. She made procedural mistakes in her response to the entry of the judgment of non pros that preclude us from reviewing the entry of that judgment in this apрeal.