Motion to Dismiss For Failure to Prosecute in Pennsylvania

Background

“Courts treat the terms ‘dismissal for lack of prosecution’ and ‘judgment of non pros’ synonymously.” (See, e.g., Madrid v. Alpine Mountain Corp. , 24 A.3d 380, 381-82 (Pa. Super. 2011). ” Cardona v. Buchanan, 230 A.3d 476, n.3 (Pa. Super. Ct. 2020)

“The duty is on the plaintiff to proceed with his cause of action, and the plaintiff, not the defendant, bears the risk of not acting within a reasonable time.” (Kennedy v. the Bulletin Co. (1975) et al, 237 Pa. Super. 66, 67.)

General Information for Complaints and Motions

The law as to when a non pros may be granted is clear. Three conditions must be present:

1. the plaintiff must have failed to prosecute his action within a reasonable time;
2. there must be no reasonable excuse for the delay; and
3. the delay must have been prejudicial to the defendant.

(James Bros. Co. v. Union B. T. of DuBois (1968) 432 Pa. 129; Gaito v. Matson (1974) 228 Pa. Super. 288; Rizzo v. Pittsburgh Railways Co. (1974) 226 Pa. Super. 566.)

“A delay as long or longer than the applicable period of limitations is generally considered sufficient to warrant a judgment of non pros. if the other tests are met.” (Kennedy v. the Bulletin Co., et al (1975) 237 Pa. Super. 66.)

Actions by Defendant Affecting Judgment Non Pros

“[W]here a delay in prosecuting a case is attributable to the defendant as well as the plaintiff, the defendant has waived his or her right to a judgment of non pros.” (Tri-State Asphalt v. Dept. of Transp (2005) 875 A.2d 1199, n.9 citing 7 Standard Pennsylvania Practice 2d § 39:98 [2003].)

Additionally, “where a defendant takes steps in preparation for a trial on the merits, the defendant may have waived a judgment of non pros.” (Dept. of Transp (2005) 875 A.2d 1199, n.9 citing 7 Standard Pennsylvania Practice 2d § 39:98 [2003].)

Standard of Review and Burdens of Proof

“It is also clear that a decision granting a judgment of non pros is soundly within the discretion of the lower court and such decision will not be reversed absent manifest abuse of discretion.” (Richards v. Swift (1976) 241 Pa. Super. 359, 361-62 citing Gallagher v. Jewish Hosp. Assn. of Phila. (1967) 425 Pa. 122, 228 A.2d 732.)

The Court’s Decision

“A lower court properly enters a judgment of non pros ‘when a party to the proceedings has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party....’” (Carter v. Amick (1977) 246 Pa. Super. 530, 534 citing Kennedy, supra, 237 Pa. Super. 66, 68-69, quoting James Bros. Co. v. Union Banking Co. (1968) 432 Pa. 129, 132.)

“In McFadden v. Pennzoil Co. [326 Pa. 277, 191 A. 584 (1937)] [the] Supreme Court upheld the striking of a judgment of non pros when it appeared that the delay in the case had been due to counsel's bad health and oversight rather than any neglect by the plaintiff.” (Carter supra, at 535 citing id; see also Cf. Esso Standard Oil Co. v. Taylor (1960) 399 Pa. 324; Arzinger v. Baughman (1943) 348 Pa. 84.)