J-A02026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THE BANK OF NEW YORK MELLON                :   IN THE SUPERIOR COURT OF
    CORPORATION, AS TRUSTEE OF CHL             :        PENNSYLVANIA
    MORTGAGE PASS-THROUGH TRUST                :
    2002-36 MORTGAGE PASS-                     :
    THROUGH CERTIFICATES SERIES                :
    2002-36 C/O NATIONSTAR                     :
    MORTGAGE LLC                               :
                                               :
                      Appellants               :   No. 3804 EDA 2015
                                               :
                                               :
               v.                              :
                                               :
                                               :
    JOHN G. DIMOU AND ANNA DIMOU

               Appeal from the Order Entered November 19, 2015
                In the Court of Common Pleas of Lehigh County
                    Civil Division at No(s): No. 2014-C-2609


BEFORE:      OTT, J., RANSOM, J., and FITZGERALD, J.*

CONCURRING AND DISSENTING MEMORANDUM BY OTT, J.:FILED MAY 04, 2017

        While I agree with the Majority’s decision to affirm the trial court’s

grant of summary judgment in favor of Appellees, I disagree with the

Majority’s decision to the extent it upholds the portion of the trial court’s

order that dismisses the complaint with prejudice.

        In the first issue, Appellant argues the trial court erred “in dismissing

Appellant’s complaint in mortgage foreclosure with prejudice, because a

dismissal for non pros is not a judgment on the merits.” Appellant’s Brief at
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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1. The Majority finds that because the trial court granted Appellee’s motion

for summary judgment, Appellant is not entitled to relief from a judgment of

non pros. See Majority Memorandum, at 4, citing Pa.R.C.P. 1035.3. While I

agree with the Majority’s statement as a matter of law, I view Appellant’s

argument as a challenge to the trial court’s dismissal of the complaint “with

prejudice,” by comparing the instant grant of summary judgment with cases

involving judgment of non pros for failure to prosecute an action.

      Here, the trial court’s decision to grant summary judgment and

dismiss Appellant’s complaint with prejudice was based solely upon

counsel’s failure to file a timely response to the summary judgment motion.

See Pa.R.C.P. 1035.3(d) (“Summary judgment may be entered against a

party who does not respond.”). The trial court did not adjudicate the merits

of Appellant’s foreclosure claim. In this respect, Appellant relies on case law

that addresses the effect of a judgment of non pros to argue that because

the trial court’s ruling was not a judgment on the merits, “it adjudicates

nothing and should not preclude Appellant from bringing forward a claim in

mortgage foreclosure from the May 1, 2011 default.” Appellant’s Brief at 1.

I find Appellant’s argument persuasive.

      This Court has held that “[s]ince a non pros is not a judgment on the

merits, it cannot have res judicata effect.” Hatchigian v. Koch, 553 A.2d

1018, 1020 (Pa. Super. 1989) (internal citations omitted). See also


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Gutman v. Giordano, 557 A.2d 782, 783 (Pa. Super. 1989) (“[A] non pros

for failure to answer a trial listing is not an adjudication on the merits and

thus may not form the basis for application of res judicata.”). Additionally,

our Commonwealth Court has held that “a dismissal, even with prejudice, for

failure to prosecute a claim is not intended to be res judicata of the merits to

the controversy.” Municipality of Monroeville v. Liberatore, 736 A.2d 31,

34 (Pa. Cmwlth. 1999). I agree with Appellant that the principles that apply

to a judgment of non pros are appropriate for this case. Therefore, I would

find that the trial court erred in dismissing the complaint “with prejudice.”

      In support of its decision to dismiss the complaint with prejudice, the

trial court relied on Werner v. Office of Administration, 701 A.2d 796

(Pa. Cmwlth. 1997). See Trial Court Opinion, 2/25/2016, at 13. In Werner,

however, the Commonwealth Court, in affirming the Board of Claims’

decision to grant summary judgment and dismiss Werner’s complaint with

prejudice, found that Werner’s failure to respond to the summary judgment

motion was not excused by the absence of a briefing schedule and that the

Board had properly concluded there was no jurisdiction to address the issues

raised by Werner in his amended complaint because the Supreme Court had

already addressed those issues. See id. at 799–800. As such, Werner does

not support the dismissal of the complaint with prejudice in this case where

there was no substantive analysis of Appellant’s foreclosure action.


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      The   trial   court   also   cites   Pride   Contracting, Inc. v. Biehn

Construction, Inc., 553 A.2d 82 (Pa. Super. 1989), which involved the

dismissal of a complaint with prejudice as discovery sanction, pursuant to

Pa.R.C.P. 4019(c)(5).       See Trial Court Opinion, 2/25/2016, at 15.        Pride

Contracting instructs that a trial court must “strike a balance between the

procedural need to move the case to a prompt disposition and the

substantive rights of the parties,” and dismiss a complaint with prejudice

only where the party’s failure to comply has been willful and the opposing

party has been prejudiced. Id. at 84.

      In Pride Contracting, the trial court found that the plaintiff-appellant

had willfully disregarded discovery orders and that the defendants had been

prejudiced by the plaintiff-appellant’s failure to supply requested information

that was essential to the preparation of the defense. Id. at 84. On review,

this Court found that the remedy chosen by the trial court was an

appropriate exercise of the court’s discretion.        Id.   In the present case,

however, the record does not reveal, nor did the trial court make, any

finding of willful noncompliance or actual prejudice.        Rather, the trial court




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found “a lack of interest in prosecuting this case and a disregard for judicial

time and economy.” Trial Court Opinion, 2/25/2016, at 20.1

       In Pride Contracting, this Court recognized that dismissal of a

complaint with prejudice is a harsh sanction that “should be imposed only in

extreme circumstances.”         Id., 553 A.2d at 84.   Accordingly, based on my

review of the record and relevant case law, I would reverse the portion of

the order that dismissed Appellant’s complaint with prejudice.

       Therefore, I concur in part, and respectfully dissent in part.




____________________________________________


1
  In the same vein, the case of Azzarelli v. City of Scranton, 655 A.2d 648
(Pa. Cmwlth. 1995), cited by the trial court, is distinguishable. See Trial
Court Opinion, 2/25/2016, at 15. In Azzarrelli, the Commonwealth Court
reversed the trial court’s denial of preliminary objections and dismissed
Azzarrelli’s personal injury action, finding that because Azzarrelli’s service
was defective the trial court had no jurisdiction over Scranton, and that
Scranton was prejudiced “as a matter of law” by Azzarrelli’s six year delay in
prosecuting the case. Id. at 652.




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