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Home My WebLink About2007-4129 Civil BONNIE G. TOCKET and : IN THE COURT OF COMMON PLEAS OF DEAN M. TOCKET, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION – LAW : DANTE’S RESTAURANT,: INC., CEDAR CLIFF : INN, INC., GULLIFTY’S : RESTAURANTS, INC., : ANDREW ZANGRILLI, : and CEDAR CLIFF, LP, : Defendants : NO. 07-4129 CIVIL TERM IN RE: PETITION TO OPEN JUDGMENT OF NON PROS BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., August 19, 2009. In this negligence action, a judgment of non pros was entered in August of 2006 in favor of Defendant Cedar Cliff, L.P., as the result of Plaintiffs’ failure to 1 file a complaint. For disposition at this time is Plaintiffs’ petition to open the 2 judgment, filed May 15, 2009. For the reasons stated in this opinion, Plaintiffs’ petition to open will be denied. PROCEDURAL HISTORY; STATEMENT OF FACTS The present action was commenced in Philadelphia County on March 10, 2006, by a praecipe for writ of summons against various defendants, including 3 Defendant Cedar Cliff, L.P., Inc. (hereinafter Defendant.). Defendant ruled 1 Praecipe of Entry of Judgment of Non Pros for Failure To File a Complaint Pursuant to Rule 237.1, filed August 1, 2006. 2 Plaintiffs’ Petition To Open Judgment of Non Pros, filed May 15, 2009. 3 Praecipe To Issue Writ of Summons, filed March 10, 2006. 4 Plaintiffs to file a complaint on May 31, 2006. No complaint was filed. Following 5 service upon Plaintiffs of a 10-day notice and the further failure of Plaintiffs to file a complaint, Defendant filed a Praecipe of Entry of Judgment of Non Pros for 6 Failure To File a Complaint Pursuant to Rule 237.1, on August 1, 2006. For reasons that are not clear, Plaintiffs proceeded thereafter as if Defendant were still in the case. Plaintiffs filed a complaint against Defendant et al. on September 18, 2006, based upon an alleged slip and fall of Plaintiff Bonnie G. Tocket on March 12, 2004, at a Cumberland County mall allegedly maintained 7 in a hazardous condition by Defendant. Ultimately, as a result of preliminary objections of the remaining defendants, venue in the case was transferred to 8 Cumberland County, and new counsel entered an appearance on behalf of 9 Plaintiffs on October 7, 2008. The remaining defendants joined Defendant Cedar Cliff, L.P., as an 10 additional defendant pursuant to leave of court dated March 22, 2009. The joinder had been sought to pursue claims against Defendant for contribution and 11 indemnification. On May 15, 2009, Plaintiffs filed the Petition To Open 12 Judgment of Non Pros sub judice. 4 Praecipe for Rule To File Complaint, filed May 31, 2009. 5 See Notice of Praecipe of Entry of Judgment of Non Pros for Failure To File a Complaint Pursuant to Rule 237.1, filed July 25, 2006. 6 Praecipe of Entry of Judgment of Non Pros for Failure To File a Complaint Pursuant to Rule 237.1, filed August 1, 2009. Defendant Cedar Cliff, L.P., was not represented by the same counsel as were the remaining defendants. See Praecipe for Appearance on behalf of Cedar Cliff, L.P., filed by Anthony W. Hinkle, June 1, 2006; Entry of Appearance on behalf of defendants Dante’s Restaurant, Inc., Cedar Cliff Inn, Inc., Gullifty’s Restaurants, Inc., and Andrew Zangrilli, filed June 19, 2006. 7 Plaintiffs’ Complaint—Civil Action, filed September 18, 2006. 8 Order of Court, January 26, 2007. 9 Entry of Appearance of Derrek W. Cummings, Esq., and Larry A. Weisberg, Esq., on behalf of Plaintiffs, filed October 7, 2008. 10 Order, March 22, 2009. 11 Petition for Permission To Join Additional Defendant, ¶5, filed March 19, 2009. 12 Petition To Open Judgment of Non Pros, filed May 15, 2009. 2 Plaintiffs’ petition to open alleged that their prior counsel had failed to diligently pursue the instant litigation and failed to apprise them of the state of the case, that Plaintiff Bonnie G. Tocket had eventually filed a complaint with the disciplinary board against the attorney, that Plaintiffs’ counsel was ultimately disbarred on May 11, 2009, and that Defendant (now an additional defendant) 13 would not be prejudiced by the joinder. In response to a Rule issued by this court to show cause why the judgment of non pros should not be opened, and directing that depositions be taken by the parties to provide an evidentiary record on the 1415 issue, Defendant filed an answer on June 1, 2009. Defendant’s answer, on most of the pertinent points of Plaintiffs’ petition, indicated that it did not have sufficient information to admit Plaintiffs’ 16 allegations. No depositions were taken on the issues. Oral argument was held on July 30, 2009. DISCUSSION Statement of law. On a petition to open a judgment of non pros, the plaintiff has the burden of showing (a) a prompt filing of the petition, (b) a reasonable explanation for the delay which occasioned the judgment of non pros, and (c) allegations that would support a meritorious cause of action. See Pa. R.C.P. 3051(b); Valley Peat & Humus v. Sunnylands, Inc., 398 Pa. Super. 400, 581 A.2d 193 (1990). Where there would be actual prejudice to a defendant from an opening of the judgment, a judgment of non pros which would otherwise be appropriately 17 opened may be left intact. 13 Petition To Open Judgment of Non Pros, ¶¶9-12, 17-18, 28, filed May 15, 2009.. 14 Order of Court, May 21, 2009. 15 Answer of Additional Defendant, Cedar Cliff, L.P., to Plaintiffs’ Petition To Open Judgment of Non Pros, filed June 1, 2009. 16 Answer of Additional Defendant, Cedar Cliff, L.P., to Plaintiffs’ Petition To Open Judgment of Non Pros, filed June 1, 2009. 17 See LaCaffinie v. Mirk, Inc., 719 A.2d 361, 362 (Pa. Super. Ct. 1998); Vansouphet v. Justman, 76 Pa. D. & C.4th 551 (Philadelphia Co. 2005). The burden of proving such actual prejudice is 3 In this regard, however, the absence of a showing of actual prejudice to a defendant does not, in itself, warrant the opening of a judgment of non pros, where the plaintiff has not satisfied the three prerequisites stated above. LaCaffinie v. Mirk, Inc., 719 A.2d 361 (Pa. Super. Ct. 1998); Vansouphet v. Justman, 76 Pa. D. & C.4th 551 (Philadelphia Co. 2005). A decision as to whether to open a judgment of non pros is within the sound discretion of the trial court. LaCaffinie v. Mirk, Inc., 719 A.2d 361, 362 (Pa. Super. Ct. 1998). Application of law to facts. In the present case, the court is not in a position, based upon the evidentiary record, to find that Plaintiffs have met their burden of showing either a prompt filing of the petition to open or a reasonable explanation for the delay that occasioned the entry of the judgment. Accordingly, Plaintiffs’ petition to open the judgment of non pros will be denied. ORDER OF COURT th AND NOW, this 19 day of August, 2009, upon consideration of Plaintiffs’ Petition To Open Judgment of Non Pros, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Derek W. Cummings, Esq. 2041 Herr Street Harrisburg, PA 17103-1624 Attorney for Plaintiffs th upon the defendant. See, e.g., Vansouphet v. Justman, 76 Pa. D. & C.4 551, 555-556, citing th Helfrick v. UPMC Shadyside Hosp., 65 Pa. D. & C.4 420, 424-425 (2003). 4 Randy G. Gale, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants Dante’s Restaurant, Inc., Cedar Cliff Inn, Inc., Gullifty’s Restaurants, Inc., and Andrew Zangrillil Adam L. Seiferth, Esq. 1011 Mumma Road Suite 201 Lemoyne, PA 17043-1145 Attorney for Cedar Cliff, LP 5 6 BONNIE G. TOCKET and : IN THE COURT OF COMMON PLEAS OF DEAN M. TOCKET, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION – LAW : DANTE’S RESTAURANT,: INC., CEDAR CLIFF : INN, INC., GULLIFTY’S : RESTAURANTS, INC., : ANDREW ZANGRILLI, : and CEDAR CLIFF, LP, : Defendants : NO. 07-4129 CIVIL TERM IN RE: PETITION TO OPEN JUDGMENT OF NON PROS BEFORE OLER, J. ORDER OF COURT th AND NOW, this 19 day of August, 2009, upon consideration of Plaintiffs’ Petition To Open Judgment of Non Pros, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, __________________ J. Wesley Oler, Jr., J. Derek W. Cummings, Esq. 2041 Herr Street Harrisburg, PA 17103-1624 Attorney for Plaintiffs 8 Randy G. Gale, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants Dante’s Restaurant, Inc., Cedar Cliff Inn, Inc., Gullifty’s Restaurants, Inc., and Andrew Zangrillil Adam L. Seiferth, Esq. 1011 Mumma Road Suite 201 Lemoyne, PA 17043-1145 Attorney for Cedar Cliff, LP