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July 30, 1997


Appeal from ORDER ENTERED December 30, 1996, in the Court of Common Pleas of MONTGOMERY County, CIVIL, No. 92-16452. Before ALBRIGHT, J.

Before: McEWEN, P.j.; Popovich and Olszewski, JJ. Opinion BY Olszewski, J. Concurring And Dissenting Statement BY McEWEN, P.j.

The opinion of the court was delivered by: Olszewski


FILED July 30, 1997

On August 13, 1992, Nancy Deloatch, appellant herein, commenced the instant action by filing a writ of summons in the Court of Common Pleas of Montgomery County. Following a two-year period in which the docket was devoid of activity, the Montgomery County Prothonotary mailed termination notices to the parties. In response, Deloatch filed a Certificate of Active Status in which she attested that the parties were engaged in ongoing negotiations in an attempt to settle the suit.

Thereafter on October 21, 1994, Deloatch filed a complaint wherein she alleged that while employed as a maid for Bernard Becker, Mr. Becker's Akita, Hondo Bear, attacked her, causing severe injuries. Specifically, Deloatch claimed that she and her coworker asked Becker to restrain Hondo Bear while the maids cleaned the house but that Becker failed to adequately ensure that the dog was confined. As a result, Deloatch claimed, the dog lunged at her, scratched and bit her and caused severe, permanent injuries.

On November 17, 1994, Becker filed an answer in which he admitted to ownership of Hondo Bear but denied the factual averments in the complaint. On that same day, Becker filed a petition for judgment of non pros in which he stated that Deloatch's failure to diligently pursue her claim for greater than two years was conclusively prejudicial. Deloatch then filed a response to Becker's petition, in which she admitted that the docket was inactive, yet claimed that ongoing discovery and settlement negotiations had generated a plethora of undocketed activity and that the non pros sanction was, therefore, unwarranted. Neither party, however, praecipied the court for argument on the petition.

For the next fifteen months, the docket reflects ongoing activity, some of which relates to Becker's non pros petition and some of which reflects unrelated pre-trial preparations. On February 9, 1996, Becker filed a praecipe with the trial court requesting that the court hear argument relative to the merits of the November, 1994, non pros petition. Following oral argument thereon, Becker's petition was granted by order of court dated July 31, 1996.

On August 21, 1996, Deloatch filed a petition to open and/or set aside the judgment of non pros. Therein, Deloatch claimed, inter alia, that Becker had affirmatively indicated a willingness to dispense with the non pros petition and to try the case on its merits. As a result, Deloatch argued, Becker had waived his right to the equitable non pros remedy. The parties then submitted briefs and, on December 23, 1996, following argument, Deloatch's petition was denied. This appeal follows.

Mindful that the decision to open and/or strike a judgment of non pros is by grace of court and not of right, this Court will not disturb the Order of the trial court absent a finding of an abuse of discretion. See, e.g., Pine Township Water Co. v. Felmont Oil, 425 Pa. Super. 473, , 625 A.2d 703, 705 (1993); Abraham Zion Corp v. After Six, Inc., 414 Pa. Super. 611, , 607 A.2d 1105, 1107 (1992). Further, we note that the non pros doctrine is founded upon the equitable principle of laches and may properly be entered "when a party to a proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there is no compelling reason for the delay, and the delay has caused some prejudice to the adverse party." Zion, 414 Pa. Super. at 615. In order to prove entitlement to relief from a non pros judgment, the burden is upon the moving party to demonstrate that: (1) a petition to open and/or strike the judgment was promptly filed; (2) a reasonable explanation or legitimate excuse exists for the default or delay; and (3) there exist sufficient facts to support a cause of action. See, e.g., Petrone v. Whirlwind, Inc., 444 Pa. Super. 477, , 664 A.2d 172, 174 (1995); Pine Township, 425 Pa. Super. at , 625 A.2d at 705.

Instantly, the gravamen of Deloatch's argument is that, regardless of whether a non pros was warranted due to her prosecutorial delay, Becker has waived his right to assert entitlement to the remedy. That is, Deloatch argues, by conducting himself in a manner indicating a willingness to try the case on its merits and forgo seeking a non pros, Becker has forfeited his right to the remedy. *fn1

It is well-settled that a defendant cannot lose his or her right to seek a non pros merely by mounting a defense on the merits to the underlying action. See, e.g., Mackintosh-Hemphill International, Inc. v. Gulf & Western Co., 451 Pa. Super. 385, , 679 A.2d 1275, 1281-82 (1996); Blackburn v. Sharlock Repcheck, 433 Pa. Super. 581, , 641 A.2d 612, 614 (1994). So long as the litigants are aware that the non pros petition is actively pending before the trial court, defendant is free to conform his or her conduct to our Rules of Civil Procedure by, inter alia, responding to interrogatories propounded by plaintiff or filing an answer and new matter.

What is not permitted is for defendant to act in a manner inconsistent with his or her request for a non pros. Such conduct, which indicates a willingness to try a case on its merits, will result in a waiver of the equitable non pros remedy. Id.

In the instant matter, Deloatch avers that, several months after filing his non pros petition, Becker agreed to pursue the case to culmination and forego the non pros petition. Additionally, Deloatch maintains, Becker's actions during the twenty-month lapse between the filing of the petition and argument thereon gave the reasonable impression that he was willing ...

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