Est. of Mark, A. v. McCarthy, M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF ALBERT E. MARK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARIA MCCARTHY, A/K/A MARIA A. : No. 991 EDA 2021
MARK, A/K/A MARIA A. MCQUILLAN, :
WAYNE BANK, SUSAN COURSEN :
MARY ALICE PETZINGER AND :
WELLS FARGO BANK, N.A. :
Appeal from the Order Entered April 12, 2021
In the Court of Common Pleas of Pike County Civil Division at No(s):
645-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 8, 2022
Appellant, Estate of Albert E. Mark (the “Estate”), appeals from the
April 12, 2021 Order entered in the Pike County Court of Common Pleas
denying its Petition to Strike and/or Open Judgment of Non Pros. After
careful review, we reverse the trial court’s denial of the motion to open
judgment, finding untenable the trial court’s reasoning that the Estate failed
to act with diligence by not making Rules absolute within two days.
The relevant facts and procedural history are as follows. Appellee,
Maria McCarthy (“Ms. McCarthy”) had previously held a power of attorney for
her father, Albert Mark, and had been the executrix of the Estate. On April
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11, 2018, the orphans’ court removed Ms. McCarthy as executrix after she
failed to provide an accounting of the assets of the Estate.1
In an effort to obtain information about Ms. McCarthy’s use of the
funds of the estate while she served as executrix and preserve any claims
the Estate may have for possible misuse of the Estate funds, the Estate, on
June 23, 2020, initiated this action by filing a Writ of Summons against Ms.
McCarthy, Wayne Bank, Susan Coursen, Mary Allice Petzinger, and Wells
Fargo Bank, N.A.
On August 19, 2020, counsel for Ms. McCarthy filed a Praecipe for Rule
to File Complaint. That same day, the trial court issued a Rule directing the
Estate to file a complaint within 20 days.
In response, on September 4, 2020, rather than file a complaint, the
Estate filed a Motion for a Stay to File Complaint and a Motion for Leave to
Take Pre-Complaint Discovery. The Estate alleged in the Motion for a Stay
that Ms. McCarthy, who for years had been in control of the assets of her
father and then of the Estate, had misappropriated and concealed the
location of the assets.
Most important to our analysis, the Estate argued that because Ms.
McCarthy concealed the assets of the Estate, the Estate could not file a
complaint without first conducting pre-complaint discovery. The Estate
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1 See Docket No. 10 O.C. 2018.
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requested that the court grant the stay and the Motion for Leave to Take
Pre-Complaint Discovery and permit it 90 days to conduct discovery and a
further 20 days to file a complaint.
Before responding to the Estate’s motions, Ms. McCarthy, on
September 10, 2020, sent a “Notice of Intention to Default pursuant to
[Pa.R.C.P.] 237.1(a)(2)” to Appellant’s counsel.2 The Estate responded that
day with an Emergency Motion for an Ex Parte Order or Expedited Hearing
for a Stay to Prevent the Entry of Judgment of Non Pros.3
On September 15, 2020, the trial court issued Rules directing Ms.
McCarthy and the other Appellees to show cause within 20 days why the
court should not grant each of the Estate’s four outstanding motions. The
Rules were returnable on October 6, 2020 and provided that “[i]f no answer
is filed by the specified date, the Rule may be made absolute upon motion of
counsel.” Rules, 9/15/20.
Two days later, on October 8, 2020, Ms. McCarthy simultaneously
responded to the court’s show cause order while filing a Praecipe for
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2 On September 24, 2020, Ms. McCarthy sent a letter to Albert Mark, Jr.,
administrator of the Estate, enclosing the Notice of Intention to Take a
Default, although the Estate asserts that Ms. McCarthy failed to enclose the
notice in the letter.
3 On the same date, the Estate also filed a Motion to Consolidate this action
with a pending orphans’ court action, asserting that the matters had some
common issues.
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Judgment of Non Pros. In response to the praecipe, the Pike County clerk of
courts entered a Judgment of Non Pros that same day.
On November 6, 2020, the Estate filed a Motion to Open and/or Strike
the Judgment of Non Pros. On November 20, 2020, Ms. McCarthy filed a
response in opposition to the Motion and on December 7, 2020, Appellee
Wayne Bank also filed a response to the Estate’s Motion.
The trial court scheduled a hearing on the motion to open or strike the
judgment for March 23, 2021. Prior to commencement of the hearing, on
March 19, 2021, the Estate filed a Request for Argument on its outstanding
Motions to Take Pre-Complaint Discovery, for Stay to File Complaint, to
Consolidate, and for Ex Parte or Expedited Hearing for a Stay to Prevent
Judgment of Non Pros. The Estate further requested that the court consider
these outstanding motions together with the motion to strike or open the
judgment. The trial court denied the Estate’s requests for argument on the
motions and to consider them with the merits of the motion to strike or open
judgment.
On April 12, 2021, following consideration of the merits of the motion
to strike or open, the trial court denied the motion by order.
The Estate filed a timely Notice of Appeal and both it and the trial
court complied with Pa.R.A.P. 1925.
The Estate raises the following issues on appeal:
1. Did the trial court commit an abuse of discretion when it did
not consider the appropriate standards for opening or striking
a judgment of non pros and purposefully limited its inquiry so
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as to avoid addressing all of the elements needed to decide
whether the judgment should have been open or stricken?
2. Did the trial court commit an abuse of discretion when it did
not act on [the Estate’s] motions including, without limitation,
an Emergency Motion for an Ex Parte Order or Expedited
Hearing for a Stay to Prevent the Entry of a Judgment of Non
Pros for months? Did the trial court abuse its discretion in
failing to act promptly on [the Estate’s] Motion for Pre-
Complaint [D]iscovery all of which was highly prejudicial?
3. Did the trial court abuse its discretion, upon seeing [the
Estate’s] motions which anticipated the possible entry of a
judgment of non pros, rewarded defense counsel, who
opposed pre-complaint discovery and [the Estate’s] motions
by allowing the judgment of non pros to be entered and
neither opened nor stricken where the actions of one or more
attorneys for the Appellees prevented [the Estate] from being
able to file a complaint that included all of the information
needed?
4. Did the trial court abuse its discretion by refusing to continue
the hearing even though this was the first listing of these
Motions and even though [the Estate] filed a praecipe for oral
argument on March 19, 2021[,] in response to a praecipe
filed by counsel for [Ms.] McCarthy?
5. Did the trial court abuse its discretion in refusing to admit
evidence at the hearing that could be authenticated?
6. Did the trial court abuse its discretion in that it demonstrated
bias and ill-will towards [the Estate’s] counsel and appeared
to have its mind made up from the beginning of the hearing?
Estate’s Brief at 4 (some capitalization omitted).
In its first issue, the Estate challenges the trial court’s denial of its
petition to open the judgment of non pros.4 Id. at 13-17.
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4In this issue, the Estate has not challenged the trial court’s denial of its
Motion to Strike the Judgment of Non Pros.
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The following legal principles inform our review. “By definition, a non
pros is a judgment entered by the trial court which terminates a plaintiff’s
action due to the failure to properly and/or promptly prosecute a case.”
Dombrowski v. Cherkassky, 691 A.2d 976, 977 (Pa. Super. 1997). Our
rules of civil procedure provide for entry of judgment of non pros when, inter
alia, the plaintiff does not file a complaint after the issuance of a rule to do
so. See Pa.R.C.P. 1037(a). Non pros may also be entered for inactivity if
there is a lack of due diligence in prosecuting the case on the part of the
plaintiff, no compelling reason for the delay, and actual prejudice to the
defendant. See James Bros. Lumber Co. v. Union Banking & Trust, 247
A.2d 587, 589 (Pa. 1968); Jacobs v. Halloran, 710 A.2d 1098, 1103 (Pa.
1998).
“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, three
elements must coalesce: 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 which support a cause of action.” Madrid v. Alpine
Mountain Corp., 24 A.3d 380, 381 (Pa. Super. 2011); Pa.R.C.P. 3051. We
review a court’s decision to deny a petition to open or strike a judgment of
non pros for an abuse of discretion. Madrid, 24 A.3d at 382.
In its Rule 1925(a) Opinion, the trial court explained that it denied the
Estate’s motion because, according to the trial court, the Estate made
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“multiple, seriatim procedural failures which we are unable to overlook.”
Trial Ct. Op., 8/6/21, at 4. The trial court identified the “multiple, seriatim
procedural failures” as the Estate’s failure to make the Rules absolute for the
Motions for Pre-Complaint Discovery, to Stay the Entry of the Judgment of
Non Pros, and to Consolidate, as well as for the Emergency Motion. Id. at 5
The trial court has overlooked the fact that the Estate could not make
the Rules absolute until October 6, 2020. Only two days later, Ms. McCarthy
filed the Praecipe for Judgment of Non Pros. The trial court has not cited to
any legal authority, and we have found none, that provides that a party who
fails to make a rule absolute on the day that the respondent’s response is
due loses all rights requested in the motion. Moreover, and more
importantly to our review of the Estate’s appeal, this is not a sufficient
reason to deny a motion to open a judgment.
Here, the record reflects that, although the Estate did not file a
complaint within 20 days of the court’s August 19, 2020 Rule directing the
Estate do so, the Estate acted diligently to prosecute the case by instead
requesting a stay to file the complaint and leave to engage in pre-complaint
discovery. In these pleadings, the Estate asserted a compelling and good
faith reason for the delay in filing the complaint, i.e., that it needed to
conduct pre-complaint discovery before filing a complaint because of Ms.
McCarthy’s deception and concealment. However, rather than litigate the
merits of the Estate’s motions, Ms. McCarthy instead sought entry of a
judgment of non pros.
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In light of the foregoing, we conclude that the trial court abused its
discretion in not opening the judgment of non pros where the Estate filed a
motion to open the judgment a mere 29 days after its entry and had been
prosecuting the case when the prothonotary entered the judgment of non
pros. We conclude that the trial court erred in finding that the Estate did not
act diligently simply because it did not file a motion to make the rule
absolute within two days of the deadline for Ms. McCarthy’s response.
Accordingly, we reverse the order denying the Estate’s Motion to Open the
Judgment of Non Pros and direct the lower court to open the judgment of
non pros entered against the Estate. On remand, we direct the court to
consider the merits of the Estate’s Motion for Leave to Take Pre-Complaint
Discovery, Motion for Stay to File Complaint, and Motion to Consolidate. 5
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
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5 In light of our disposition, we need not address the Estate’s remaining
issues on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/08/2022
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