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HomeMy WebLinkAbout00-6036 CIVILROBERT J. PAUL, Plaintiff V. RICHARD C. GAFFNEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-6036 CIVIL TERM IN RE: PLAINTIFF'S PETITION TO OPEN JUDGMENT OF NON PROS BEFORE GUIDO, J. OPINION AND ORDER OF COURT Plaintiff commenced thispro se action by filing a praecipe for a writ of summons on August 31, 2000. On October 11, 2000, a rule was issued upon him to file a complaint within twenty (20) days. The rule was properly served on October 16, 2000. No complaint was filed. On November 7, 2000, defendant mailed a copy of the notice required by Pa. Rule of Civil Procedure 237.1 to plaintiff' s address of record.~ The notice was delivered on November 14, 2000. On December 5, 2000, defendant filed a praecipe to enter judgment of non pros against plaintiff for failing to file a complaint. Notice of entry of the judgment of non pros was mailed to plaintiff by the prothonotary on that same date. On December 21, 2000, plaintiff, through counsel, filed a "Petition for Rule to Show Cause Why Judgment for Non Pros Should Not be Vacated." On December 28, ~ The notice advised that a judgment of non pros would be entered if plaintiff did not act within ten (10) days. NO. 2000-6036 CIVIL TERM 2000, we denied the petition because of counsel's failure to comply with Pa. R.C.P. 237.3.2 On January 10, 2001, plaintiff' s counsel re-filed the same "Petition for Rule to Show Cause Why Judgment for Non Pros Should Not be Vacated." The petition still did not comply with Pa. R.C.P. 237.3.3 Nevertheless, since an original verified complaint was filed at the same time as the petition, we issued a rule upon defendant to show cause why the judgment should not be opened. We further directed that the petition should be decided in accordance with Pa. R.C.P. 206.7. Thereafter, defendant filed an answer, discovery was conducted, briefs were filed and argument was held before this Court. The matter is now ready for disposition. For the reasons hereinafter set forth, the petition to vacate the judgment of non pros will be denied· DISCUSSION A petition to vacate or open a judgment of non pros is addressed to the equitable powers of the Court. Dorich v. DiBacco, 440 Pa. Super. 581,656 A.2d 522, 524 (1995). "[a] request to open a judgment of non pros is by way of grace and not of right." Id. However, our discretion is not unbridled. As the Superior Court noted: ·.. the criteria for opening a judgment of non pros for failure to file a complaint is three-fold: (1) the petition should be timely filed; (2) the reason for the default reasonably explained or excused; and (3) that facts constituting grounds for a cause of action be alleged. Cohen v. Mirin, 729 A.2d 1236, 1238 (Pa. Super. 1999). Pa. R.C.P. 3051(b). : The petition did not contain a certified copy of the proposed complaint as required by the rule. ~ Rather than attach a certified copy of the complaint to the petition as required by Pa. R.C.P. 237.1, plaintiff's counsel filed an original verified complaint with the prothonotary. 2 NO. 2000-6036 CIVIL TERM While we find that the petition was timely filed, we are not persuaded that plaintiff has offered a reasonable explanation or legitimate excuse for the delay in filing the complaint. He claims that the delay was caused by his unfamiliarity with the law,4 as well as a mental condition which made it impossible for him to represent himself. He argues that his delay should be excused because his lawyer took prompt action as soon as he became involved in the case. However, the facts before us make it abundantly clear that plaintiff was neither unfamiliar with the law nor unable to effectively represent himself. Plaintiff's claimed ignorance of the law and inability to represent himself is belied by the facts of record. The instant action involves a claim for legal malpractice against the defendant for allegedly failing to properly represent plaintiff in another action before this court (hereinafter the "Adams case").5 When defendant was granted permission to withdraw as counsel in the Adams case, plaintiff proceeded to represent himself. Not only did plaintiff file the instant action on his own behalf; he filed various petitions, 6 answers and discovery requests in the Adams case. Plaintiff did produce a letter from his physician which indicated that he should avoid the stress of representing himself in court. However, that letter was dated months before he commenced the current action. Furthermore, he continued to actively represent himself in the Adams case, even after the letter from his doctor and the commencement of 4 Unfamiliarity with the law, in and of itself, is not a sufficient reason to open a judgment. Tremont Township School Dist., v. Western Anthracite Coal Company, 364 Pa. 591, 73 A.2d 670 (1950); B.C.Y. Inc. Equipment Leasing Associates, v. Bukovich, 257 Pa. Super. 121, 390 A.2d 276 (1978). Neither is inexperience in legal affairs. Greiner v. Brubaker, 142 Pa. Super. 538, 16 A.2d 689 (1940); B.C.Y. In. Equipment Leasing, supra. s Robert Paul v. Michelle Adams and Flying J. Inc., No. 5242 Civil 1998. 6 One of the pro se petitions filed by plaintiff in the Adams case requested leave to file an amended complaint. Attached to that petition was an actual copy of the amended complaint he intended to file. NO. 2000-6036 CIVIL TERM the instant action. Since we do not believe that plaintiff was unable to effectively represent himself, we can find no legitimate excuse for the delay of more than two months in filing a complaint in this action. Therefore, his request to vacate the judgment ofnonpros will be denied. ORDER OF COURT AND NOW, this 13TM day of SEPTEMBER, 2001, for the reasons stated in the attached opinion, Plaintiff' s request to vacate the judgment of non pros is DENIED. By the Court, Melvin L. Carter, Esquire 420 West Emaus Ave. Allentown, Pa. Robert J. Paul 8108 Ridgefield Road Pensacola, Fla. 32514 Craig Black, Esquire Richard C. Gaffney, Esquire P.O. Box 627 Boiling Springs, Pa. 17007 /s/Edward E. Guido Edward E. Guido, J. 4 NO. 2000-6036 CIVIL TERM