HomeMy WebLinkAbout2005-631 Civil
DERRICK KOONTZ, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MICHAEL L. STONE, :
DEFENDANT : 05-0631 CIVIL TERM
IN RE: “MOTION” TO STRIKE JUDGMENT OF NON PROS
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., March 7, 2006:--
February 3, 2005
On , defendant, Michael L. Stone, filed an appeal from the
entry by a then District Justice of a judgment against him in favor of plaintiff, Derrick
Koontz. A rule was entered directing plaintiff to file a complaint “within twenty (20) days
after the date of service,” with notice that “If you do not file a complaint within this time,
a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU.” Proof of service
March 7, 2005 May 10, 2005,
was filed on .On defendant filed a praecipe with the
Prothonotary to enter a judgment of non pros against plaintiff “for failure to timely file a
1 June 17, 2005July 12, 2005
complaint.” On , plaintiff filed a complaint. On , defendant
July 18, 2005
filed a petition for summary judgment. On , plaintiff filed a combined
“answer to the petition for summary judgment,” and a “motion to strike judgment
November 3, 2005
previously entered.” The next docket entry on , is a praecipe by
plaintiff listing for argument his motion to strike the judgment. After that argument was
January 12, 2006,
stricken, plaintiff, on relisted themotion for argument. The parties
submitted the matter on briefs. Plaintiff’s brief is “in support of motion to strike
05-0631 CIVIL TERM
judgment.” Defendant’s brief is “in support of defendant’s motion for summary
judgment,” although the contents include an argument with respect to the entry of the
judgment of non pros.
The motion of defendant for summary judgment was not listed for argument, and
consequently, not briefed by plaintiff. The motion is not properly before us and it will
not be considered. Relief from a judgment of non pros entered under Pa. Rule of Civil
2
Procedure 237.1, is by petition pursuant to Rule 237.3. Upon such a petition, a Rule
would be entered, ultimately leading to the framing of an issue for presentation to the
3
court. Plaintiff filed a “motion to strike judgment of non pros” in combination with an
answer to the petition of defendant for summary judgment. There is no such
procedure. Listing the motion for argument does not frame an issue that is ready for
disposition.
For the foregoing reasons the following order is entered.
ORDER OF COURT
AND NOW, this day of March, 2006, the “motion“ to strike judgment
1
See Pa. Rule of Civil Procedure 237.1.
2
Rule 237.3 provides:
(a) A petition for relief from a judgment of non pros or of default entered
pursuant to Rule 237.1 shall have attached thereto a verified copy of the
complaint or answer which the petitioner seeks leave to file.
(b) If the petition is filed within ten days after the entry of the judgment on
the docket, the court shall open the judgment if the proposed complaint or
answer states a meritorious cause of action or defense.
3 Peters Township Sanitary Authority v. American Home and Land
See
Development Company,
696 A.2d 899 (Pa. Commw. 1997).
-2-
05-0631 CIVIL TERM
IS DENIED.
of non pros,
-3-
05-0631 CIVIL TERM
By the Court,
Edgar B. Bayley, J.
R. Mark Thomas, Esquire
For Plaintiff
John Eakin, Esquire
For Defendant
:sal
-4-
DERRICK KOONTZ, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MICHAEL L. STONE, :
DEFENDANT : 05-0631 CIVIL TERM
IN RE: “MOTION” TO STRIKE JUDGMENT OF NON PROS
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this day of March, 2006, the “motion“ to strike judgment
IS DENIED.
of non pros,
By the Court,
Edgar B. Bayley, J.
R. Mark Thomas, Esquire
For Plaintiff
John Eakin, Esquire
For Defendant
:sal