J-A30035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DONALD BENTLEJEWSKI AND                    :   IN THE SUPERIOR COURT OF
    KATHLEEN BENTLEJEWSKI,                     :        PENNSYLVANIA
    HUSBAND AND WIFE                           :
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :   No. 597 WDA 2018
                                               :
    WOODBRIDGE, A CONDOMINIUM, A               :
    PENNSYLVANIA CONDOMINIUM                   :
    ASSOCIATION; COMMUNITY                     :
    MANAGEMENT SOLUTIONS, INC., A              :
    PENNSYLVANIA CORPORATION; MOE              :
    TOOMEY CONSTRUCTION, LLC, A                :
    PENNSYLVANIA LIMITED LIABILITY             :
    COMPANY; MAURICE J. TOOMEY, AN             :
    INDIVIDUAL; AND BELFOR USA                 :
    GROUP, INC., A MICHIGAN                    :
    CORPORATION, D/B/A BELFOR                  :
    PROPERTY RESTORATION                       :

                 Appeal from the Order Entered April 9, 2018
      In the Court of Common Pleas of Allegheny County Civil Division at
                           No(s): GD-12-002914


BEFORE:      SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                             FILED FEBRUARY 6, 2019

       Donald and Kathleen Bentlejewski (“Appellants”) appeal from the order

entered on April 9, 2018, denying their petition to open, vacate, or strike a

judgment of non pros.1 We affirm.

____________________________________________


1  “Any appeal related to a judgment of non pros lies not from the judgment
itself, but from the denial of a petition to open or strike.” Madrid v. Alpine
Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011) (citing Pa.R.C.P. 3051).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        In March of 2006, Appellants purchased a townhouse north of

Pittsburgh, Pennsylvania (“the Property”). The Property is part of a complex

managed by Woodbridge, A Condominium (“Woodbridge”), a Pennsylvania

condominium association. Woodbridge maintains a contract with Community

Management Solutions, Inc. (“CMS”) to perform the day-to-day tasks of

managing Woodbridge. Complaint, 3/28/12, at ¶¶ 2, 7–9.

        On February 5 and 6, 2010, the Pittsburgh area received record amounts

of snowfall. Complaint, 3/28/12, at 10. According to Appellants, this snowfall

caused “significant ice accumulation, ice damming, and later, water infiltration

on the exterior walls, roof surfaces and foundations of” the Property.      Id.

Appellants claim they began notifying representatives of Woodbridge and CMS

of this damage on February 14, 2010.        Id. at 11.   Appellants received a

telephone call from a CMS representative on February 24, 2010, by which date

“significant water infiltration into the Property had already occurred.” Id. at

¶ 12.

        Woodbridge and CMS entered into a contract with Belfor USA Group,

Inc. d/b/a Belfor Property Restoration (“Belfor”) to inspect the townhouse and

begin repair work. Complaint, 3/28/12, at ¶ 13. That inspection occurred on

March 3, 2010, by which date “significant mold growth had begun to occur on

the interior surfaces and wooden structural supports within the interior walls

of the” townhouse. Id. at ¶ 14. According to Belfor, the damage did not

warrant significant replacement work, and Belfor provided Appellants with a


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dehumidifier to run constantly. Id. at ¶¶ 16. Appellants claim they “became

ill with respiratory difficulties and severe headaches due … to the circulation

of mold spores throughout the Property as a side effect of the dehumidifier.”

Id. at ¶ 17. Throughout the next several months, Appellants, Belfor, CMS,

and Woodbridge disputed the amount of damage done to the property and

who was responsible for repairing that damage. Id. at ¶¶ 21–24.

      Appellants learned on May 27, 2010, that CMS and Woodbridge had

contracted with Moe Toomey Construction, LLC and Maurice J. Toomey

(collectively “Toomey”) to make repairs at Woodbridge. Complaint, 3/28/12,

at ¶ 25. After inspecting the property in June 2010, Toomey began repair

work on Appellants’ property on July 12, 2010, which included the “removal

of exterior siding.” Id. at ¶¶ 26–27. On July 15, 2010, Toomey, along with

representatives of Woodbridge, CMS, and their insurance company performed

another inspection, and Appellants requested Toomey “provide [Appellants]

with a plan for making the necessary repairs.” Id. at ¶ 28. No further action

was taken on the property until August 30, 2010, when Toomey began

excavation work and completed the removal of exterior siding. Id. at ¶ 29.

      In September of 2010, Appellants permitted Toomey to begin interior

repair work, which, according to Appellants, included replacing rotted wood

with “construction materials that were not rated for use in the interior of

dwelling spaces.” Complaint, 3/28/12, at ¶ 31. Appellants informed CMS of

their concerns, but CMS did not advise Toomey to remediate this situation.


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From September 2, 2010, to September 11, 2010, Toomey continued to

perform repair work, which Appellants asserted was “not in compliance with

applicable building codes.”          Id. at ¶ 32.       “On September 11, 2010,

[Appellants] requested to CMS that Toomey stop performing any further repair

work on the interior of the Property due to Toomey’s use of substandard

materials and shoddy workmanship.” Id. at ¶ 33. Toomey was permitted to

perform outdoor work on the property through November 2010; no repairs

have occurred on the Property since that time. Id. at ¶¶ 34–35.

       On March 28, 2012, Appellants filed a complaint against Woodbridge,

CMS, Toomey, Belfor, and Maurice J. Toomey2 (collectively, “Appellees”),

setting forth counts for negligence, breach of contract, and violations of the

Uniform     Condominium        Act    (“UCA”),3   and    the   Pennsylvania   Home

Improvement Consumer Protection Act (“HICPA”).4                After the denial of

preliminary objections, Appellees filed answers and new matter to the

complaint in July 2012. The docket reflects discovery proceedings through

April of 2013.


____________________________________________


2 It is not clear which Maurice J. Toomey was a defendant in this case. Maurice
J. Toomey, II (“Toomey, II”) and Maurice J. Toomey, III (“Toomey, III”) have
the same first, middle, and last names. Both were involved in Moe Toomey
Construction, LLC. The complaint did not specify whether it was Toomey, II
or Toomey, III who was sued. Regardless, Toomey, II died on March 23,
2014, and Toomey, III was deposed on October 26, 2017.

3   68 Pa.C.S. §§ 3101-3414.

4   73 P.S. §§ 517.1-517.18.

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      Nothing further occurred on the docket until March 29, 2016, when the

Allegheny Department of Court Records issued a notice of intent to terminate

this inactive case pursuant to Pennsylvania Rule of Judicial Administration

1901 and Pa.R.C.P. 230.2.      On May 5, 2016, Appellants filed a counseled

objection to the notice.     On June 6, 2017, Appellees filed a motion to

dismiss/motion for judgment of non pros. On July 31, 2017, the trial court

denied Appellees’ motion to dismiss but granted their motion for judgment of

non pros. Order, 8/1/17.

      On August 18, 2017, Appellants filed a petition for relief from the

judgment of non pros, and the trial court issued a rule to show cause. The

parties conducted depositions and submitted briefs to the trial court. By order

entered April 9, 2018, the trial court reaffirmed its position that it had properly

granted Appellees’ motion for judgment of non pros, concluding Appellants

neither prosecuted their claim with due diligence nor showed a compelling

reason for the delay in prosecution. In addition, the trial court concluded that

Appellees suffered substantial prejudice as a result of Appellants’ delay. Trial

Court Opinion, 4/9/18, at 3 (incorporating Trial Court Memorandum and Court

Order, 8/1/17). Appellants timely filed a notice of appeal, and both Appellants

and the trial court complied with Pa.R.A.P. 1925.

      Appellants present the following questions for our consideration:

      1. Did the court below commit an error of law or abuse of
         discretion in failing to grant relief to Appellants from the entry
         of non pros by finding a lack of due diligence when there was
         substantial evidence presented of activities undertaken in

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         furtherance of litigation that were not reflected in the docket
         entries?

      2. Did the court below commit an error of law or abuse of
         discretion in failing to grant relief to Appellants from the entry
         of non pros by finding a lack of a reasonable excuse for the
         delay when there was substantial evidence presented that the
         delay was caused by [Appellants’] financial hardship and
         serious medical conditions?

      3. Did the court below commit an error of law or abuse of
         discretion in failing to grant relief to Appellants from the entry
         of non pros by finding that the delay caused actual prejudice
         to Appellees?

Appellants’ Brief at 2 (full emphasis omitted).

      Overall, Appellants complain that the trial court erred or abused its

discretion in denying their petition for relief from the judgment of non pros.

We review this claim mindful of the following standards:

             A request to open a judgment of non pros, like the opening
      of a default judgment, is in the nature of an appeal to the equitable
      powers of the court and, in order for the judgment of non pros to
      be opened, a three-pronged test must be satisfied: 1) the petition
      to open must be promptly filed; 2) the default or delay must be
      reasonably explained or excused; and 3) facts must be shown to
      exist that support a cause of action. A petition under Pa.R.C.P.
      3051 is the only means by which relief from a judgment of non
      pros may be sought. Any appeal related to a judgment of non pros
      lies not from the judgment itself, but from the denial of a petition
      to open or strike. The failure to file a timely or rule-compliant
      petition to open operates as a waiver of any right to address issues
      concerning the underlying judgment of non pros. Finally, a trial
      court’s decision to deny a petition to open or strike a judgment of
      non pros is reviewed pursuant to an abuse of discretion standard.

Bartolomeo v. Marshall, 69 A.3d 610, 613–614 (Pa. Super. 2013) (internal

citations and quotation marks omitted).      To prevail on a petition for relief

where a judgment of non pros is entered on the basis of docket inactivity, a

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petitioner must satisfy the trial court that it: 1) proceeded with due diligence

in prosecuting the claim; 2) has a compelling reason for the delay; and 3) has

not caused actual prejudice to the defendant. Pa.R.C.P. 3051(c); see also

Jacobs v. Halloran, 710 A.2d 1098, 1103 (Pa. 1998) (citing lack of due

diligence, lack of a compelling reason for delay, and actual prejudice as bases

for dismissing a case due to inactivity).

      In the first question presented, Appellants argue that the trial court

abused its discretion in concluding they failed to act with due diligence in

prosecuting their claims. Appellants’ Brief at 14–25. In support, Appellants

detail their efforts to move this case forward between the last docket entry on

April 11, 2013, and the March 29, 2016 notice of dismissal. Appellants submit

the following non-docket activities as evidence of their due diligence:

      May 8, 2013 – Reviewed depositions; worked on discovery
      responses. May 9, 2013 – Reviewed file; prepared responses to
      discovery requests. Review draft of discovery responses in
      preparation for service; email to client regarding discovery
      responses. May 10, 2013 – Email from client regarding discovery
      responses. Telephone call from client regarding case status.
      Review discovery responses to include information provided by
      client and prepare for filing. May 17, 2013 – Review email from
      Attorney Lippl; review photographs; draft supplemental responses
      in response to attorney Lippl’s email; draft letter to Attorney Lippl.
      Review and revise amended discovery responses. June 17, 2013
      – Telephone call from client regarding possible change in litigation
      strategy[.] February 12, 2014 – Email exchange with client
      regarding moving forward with suit.          February 13, 2014 –
      Telephone call from client regarding resuming active litigation.
      February 25, 2014 – Reviewed pleadings and file in order to prep
      for preparing first request for admission and production of
      documents[.] February 26, 2014 – Prepare first draft of request
      for admissions directed to Woodbridge for Attorney Bock’s review.
      Review and revise initial draft of discovery requests. August 27,

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      2015 – Prepare supplementary discovery requests and revised
      deposition notices in preparation for moving forward with case.

Petition for Relief from Judgment of Non Pros, 8/17/17, at ¶ 14; Appellants’

Brief at 10-11. Appellants contend that the trial court did not consider these

efforts—or reflected “a bias against non-docket evidence”—in concluding the

non-docket activity “did not advance the case in a meaningful way.”

Appellants’ Brief at 18–19.

      With respect to due diligence and non-docket activity, our Supreme

Court has pointed out that:

      [a]lthough the docket provides an empirical, easily verifiable
      criterion to trigger review of a case, it is too crude a mechanism
      to distinguish truly inactive, stale cases from active ones where
      activity is not reflected on the docket. Dismissal of a case is far
      too harsh a result when the case is not actually stale but was
      moving slowly forward.

Marino v. Hackman, 710 A.2d 1108, 1111 (Pa. 1998).             In Marino, the

plaintiffs moved their case forward by “the taking depositions of all parties; …

the exchange of letters seeking a settlement of the case; and, finally, a

telephone discussion of certifying the case ready for trial.” Id. at 1111.

      Here, Appellants’ non-docketed efforts fall short of the diligence

presented in Marino. Initially, the litigation progressed quickly, as evidenced

by the filing of a writ of summons and a complaint, the filing and resolution of

preliminary objections, and the filing of responsive pleadings, all within the

first eight months. Once discovery activity appeared on the docket in October

of 2012, however, the sparse 2013 to 2015 activity on and off the docket does


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not demonstrate that the case moved forward in any meaningful respect. On

the contrary, it reveals that the case stalled sometime after April of 2013,

when the trial court directed Appellants to respond to Belfor’s discovery

requests.   No meaningful activity occurred again until the March 29, 2016

notice. There were no depositions, no settlement negotiations, no discussions

of readiness for trial, no motions for discovery, no motions to compel

discovery, no motions for sanctions. Based on the docketed and non-docketed

activity of record, we conclude that Appellants failed to prosecute their claims

with due diligence.

      In the second question presented, Appellants argue that the trial court

abused its discretion in concluding that they failed to establish a compelling

reason for the delay in prosecuting their claims. Appellants’ Brief at 25–30.

Appellants contend they had compelling reasons for failing to move the case

forward:

      [T]hey (1) suffered from a great financial burden of having to pay
      a mortgage, taxes, dues, utilities, and upkeep for the property at
      issue in this case, while having to live and carry on with daily
      expenses at another address and (2) . . . also suffered from
      certain medical conditions which have affected their finances and
      quality of life, including multiple surgeries.

Id. at 25-26.

      The Pennsylvania Supreme Court has recognized “compelling reasons

for delay . . . where the delaying party established the delay was caused by

bankruptcy, liquidation, or other operation of law, or in cases awaiting

significant developments in the law.” Marino, 710 A.2d at 1111 (citing Penn

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Piping, Inc. v. Insurance Co. of North America, 603 A.2d 1006 (Pa.

1992)); see also Intech Metals, Inc. v. Meyer, Wagner & Jacobs, 153

A.3d 406, 412 (Pa. Super. 2016) (“[R]easons for a delay, such as

circumstances out of the party’s control or ongoing depositions, discovery,

changes in the law, etc., may explain any lack of diligence in failing to proceed

with reasonable promptitude.”). The Marino Court considered the following

non-docketed circumstances as evidence of a compelling reason for the delay

in prosecution: the death of plaintiffs’ counsel; replacement of plaintiffs’

second counsel because he was not moving the case forward; and third

counsel’s difficulty in obtaining the case file from second counsel and getting

second counsel to withdraw his appearance. Id.

      Here, the trial court concluded: “These arguments regarding the issues

that [Appellants] have been dealing with during the prosecution of this case

do not demonstrate a compelling reason for their delay.”             Trial Court

Memorandum and Order of Court, 8/1/17, at 5. We agree.

      The same attorney has represented Appellants since the inception of the

case; therefore, unlike the plaintiffs in Marino, Appellants cannot rely on a

problematic substitution of counsel as a compelling reason for delay.

Moreover, although Appellants mention financial and medical reasons for the

delay, they did not experience bankruptcy, liquidation, some other operation

of law, or situations beyond their control; nor were they awaiting significant

developments in the law. Appellants’ reasons cannot overcome the fact that,


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six years after the snow fell and four years after the litigation began, this case

was no closer to disposition in March of 2016 than it was in 2013. Thus, we

conclude that Appellants failed to present a compelling reason for the delay in

prosecution.

       In the third and final question presented, Appellants contend the trial

court abused its discretion in ruling that the delay in prosecution resulted in

prejudice to Appellees. Appellants’ Brief at 31–33. According to Appellants,

Appellees were not prejudiced because (1) “the pace and scope of discovery

was always under the control of [Appellees],” id. at 32; (2) Appellees could

have “kept track” of their witnesses, even those “potential witnesses [who]

left their employment or ceased to be officers or directors[,]” and brought

them “back at the time of trial, by subpoena if necessary.”         Id.; and (3)

Appellees could have placed the case at issue; id. at 33.5 Regarding the death

of Toomey, II in 2014, Appellants acknowledge that his death “did deprive

[Appellees] of an important witness.” Appellants’ Brief at 33. However, they

maintain it was Appellees’ responsibility to take action once they knew

Toomey, II was dying. Id.




____________________________________________


5  Contrary to their assertion that Appellees could have taken action to
advance the litigation, Appellants, as plaintiffs, are charged with moving their
case forward. Indep. Tech. Servs. v. Campo’s Express, Inc., 812 A.2d
1238, 1240 (Pa. Super. 2002) (“The plaintiff in a case has an affirmative duty
to move its case forward.”) (citation omitted).

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      In    response,   Appellees    highlight    the   testimony   of   the   party

representatives “deposed pursuant to the [c]ourt’s Order of September 11,

2017, . . . to afford the Appellants a hearing on the question of whether

Appellees had suffered substantial prejudice in this case.” Appellees’ Brief at

28, 29–31 (citing Deposition of Edward Golob, Jr. of CMS, 10/2/17; Deposition

of Charles Eisenberg of Belfor, 10/2/17; Deposition of Toomey, III 10/26/17).

According    to   Appellees,   the   deposition   testimony   demonstrates      how

Appellants’ delay caused “a substantial diminution of [Appellees’] ability to

properly present their defenses at trial.” Id. at 29

      Abandoning the presumption of prejudice first enunciated in Penn

Piping, the Pennsylvania Supreme Court held in Jacobs that a defendant

must establish actual prejudice caused by the delay in prosecution in order to

obtain a judgment of non pros. Jacobs, 710 A.2d at 1103. Here, the trial

court found that Appellees demonstrated actual prejudice:

      [F]or all [Appellees], the condition of [Appellants’] condominium
      after seven years without heat or air condition is likely to make
      assessing damages difficult, if not impossible. Individual issues
      include the turnover of employees for . . . Belfor, [CMS] and
      [Toomey], and the turnover of condominium council members for
      . . . Woodbridge. For . . . Toomey . . . the death of [Toomey, Sr.]
      in March 2014 amount to the loss of a witness (if not a party[.]).
      Collectively, these developments over time have resulted in
      substantial prejudice to [Appellees].

Trial Court Memorandum and Order, 8/1/17, at 5.

      Our review of the record, specifically the deposition testimony, confirms

the trial court’s findings with regard to the unavailability of Toomey, II, the


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difficult accessibility to former employees of Appellees, and the lack of

knowledge or faded memory of Appellees’ witnesses.             Responsive Brief,

1/8/18, at attached Deposition Transcripts.

      Notably, Appellants had ample opportunity to conduct a deposition of

Toomey, II prior to 2014, but they did not. In addition, Appellants could have

deposed any of Appellees’ knowledgeable employees, as well, but they did

not. Now, Appellants contend that Appellees are to blame for the condition of

the Property after seven years and the lack of discovery.          Despite their

protestations to the contrary, Appellants’ own unreasonable delay caused the

unavailability or inaccessibility of material witnesses and evidence of the

Property’s condition. Accordingly, we agree with the trial court that Appellees

proved actual prejudice.

      Based on the foregoing, Appellants have failed to demonstrate that they

acted with due diligence, had a compelling reason for the delay, and that

Appellees did not suffer actual prejudice. Therefore, we conclude the trial

court did not abuse its discretion in denying Appellants’ petition for relief from

the judgment of non pros.

      Order affirmed.

      Judge Strassburger did not participate in the consideration or decision

of this case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2019




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