HomeMy WebLinkAbout1999-1546
ROBERT M. MUMMA, II, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
V. :
:
CRH, INC., PENNSY SUPPLY, INC., :
LISA MORGAN, :
BARBARA McKIMMIE MUMMA, :
LINDA MUMMA ROTH, :
MORGAN, LEWIS & BOCKIUS, :
STRADLEY, RONAN, STEVENS and :
YOUNG, :
DEFENDANTS : 99-1546 CIVIL TERM
IN RE: DEFENDANT LISA MORGAN’S MOTION FOR JUDGMENT OF
NON PROS
MEMORANDUM OPINION AND ORDER OF COURT
Masland, J., January 18, 2012:--
Before the court is the motion for judgment of non pros filed by Lisa Morgan (Morgan)
on October 10, 2011. Pursuant to the order of the Honorable J. Wesley Oler, Jr., the parties
submitted briefs on December 14, 2011 and argument was held on December 21, 2011.
Although the parties disagree on the interpretation of the law, there is no dispute that
the controlling case is Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998), in which our Supreme
Court reversed the presumption that a judgment of non pros could be based on the mere
absence of docket activity for two years. Instead, the court reinstated the following three-part
test:
[T]here must first be a lack of due diligence on the part of the
plaintiff in failing to proceed with reasonable promptitude. Second,
the plaintiff must have no compelling reason for the delay. Finally,
the delay must cause actual prejudice to the defendant. As always,
this determination is to be made by the trial court, whose decision
will not be disturbed absent an abuse of discretion.
Jacobs, 710 A.2d at 1103 (emphasis in original).
If we looked merely at the docket entries our decision would be simple; however, we
are compelled to consider various non-docket activity, including, as noted in Florig v. O’Hara,
99-1546 CIVIL TERM
912 A.2d 318, 321 (Pa. Super. 2007), items such as the extensive history of settlement
negotiations between the parties. Fortunately for Plaintiff, we are not limited to considering
only settlement negotiations, something that may never have occurred. Nevertheless, it is
clear from the panoply of planets (a/k/a lawsuits) circling Mr. Mumma’s sun, that substantial
force has been expended in this solar system. Although the strength of Mr. Mumma’s gravity
appears to be waning in light of decisions from our Superior Court and those of our sister
state Florida, there has been sufficient activity on related matters which compel us to find that
Plaintiff has indeed exercised a degree of diligence in this case.
With respect to the second prong, Plaintiff has advanced arguable reasons for the
delay, including the failure of the Defendants to advance their preliminary objections. Finally,
even if we were to find that the Defendant has met its burden on the first two prongs, she has
failed to demonstrate actual prejudice. The deaths of attorneys prior to the initiation of this
action cannot be the basis for prejudice. Similarly, because Mr. Mumma’s and Ms. Morgan’s
mother has testified on the record at least five times, her recent death amidst this morass is
sad, but not prejudicial.
When the erstwhile planet “Pluto,” was dropped summarily from the list of planets, it
continued in its orbit, unshaken by the news. Similarly, if we grant the requested judgment,
there would be no disturbance in the force or change in judicial economy. Rather, that action
would result in an equal and opposite reaction in the form of an appeal to the Superior Court.
Let there be no mistake, this decision is not based on the fear of an appeal, but on the appeal
of law. This court would like nothing more than to clear the atmosphere of alleged space junk,
but the Defendant has not met her burden.
Ironically, at some point all stars either bloat to the point of becoming a red sun and
explode into a super nova or become a black hole, from which no light can escape. The laws
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99-1546 CIVIL TERM
of astronomy and physics suggest that process takes approximately ten billion years. That
timeframe may be optimistic for this case.
Accordingly, we enter the following order of court.
ORDER OF COURT
AND NOW, this day of January, 2012, after consideration of
Defendant Lisa Morgan’s motion for judgment of non pros and briefs and argument thereon,
DENIED.
the motion is
By the Court,
Albert H. Masland, J.
Jeffrey G. Brooks, Esquire
Two Gateway Center
603 Stanwix Street, Suite 2025
Pittsburgh, PA 15222
For Plaintiff
George B. Faller, Jr., Esquire
Ten East High Street
Carlisle, PA 17013
For Defendant Lisa Morgan
Michael Finio, Esquire
Matthew M. Haar, Esquire
th
2 North Second Street, 7 Floor
Harrisburg, PA 17101
Keith O. Brenneman, Esquire
44 West Main Street
Mechanicsburg, PA 17055
Richard E. Connell, Esquire
2303 Market Street
Camp Hill, PA 17011
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