J-A22005-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JANE PETERMANN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ROBERT D. KETTERING; KAREN :
LOUISE KETTERING; KETTERLINE :
BUILDERS, INC.; AND KETTERLINE, :
INC. : No. 313 MDA 2021
Appeal from the Order Entered February 23, 2021
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-11-00064
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 10, 2021
Jane Petermann (“Plaintiff”) appeals from the order that denied her
motion for reconsideration of the order that entered a judgment of non pros
upon the motion of Robert D. Kettering, Karen Louise Kettering, Ketterline
Builders, Inc., and Ketterline, Inc. (collectively “Defendants”1) in this dispute
over a tract of real property. We affirm.
The history of this case, in pertinent part, is as follows. Plaintiff initiated
this action by filing a writ of summons and lis pendens on January 2, 2011.
The docket thereafter reflects many filings related to the lis pendens in the
months leading up to Plaintiff’s filing of her complaint in August 2011. In
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1 Robert Enterline, the other half of the Ketterline Builders, was initially
included as a defendant, but was ultimately dismissed and removed from the
caption and is not involved in this appeal.
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September 2011, Plaintiff obtained a default judgment against Defendants.
Defendants simultaneously filed a prompt petition to open or strike the default
judgment and an answer to the complaint. Another bevy of filings are
reflected on the docket for several months afterwards, including an order
directing Plaintiff to appear for an oral deposition, her pro se notice of appeal
to this Court, and an order for a status conference. Plaintiff obtained counsel
and dismissed her appeal. On June 11, 2012, upon the agreement of the
parties, the trial court ordered that the default judgments be opened and that
Plaintiff was granted leave to file an amended complaint.
In her amended complaint, Plaintiff stated that she agreed to purchase
ten lots from Ketterline Builders in its Springbrook Court subdivision. The
resultant conveyance was subject to an agreement (“the 2002 Agreement”).
Pursuant to the 2002 Agreement, Plaintiff was to convey a portion of Tract 1
of the subdivision back to Mr. Kettering if he were able to acquire within five
years an adjacent tract then owned by AT&T. Further, Mr. Kettering was to
pay Plaintiff $150 per year to maintain his right to the conveyance and to mow
the lawn on the property in question during the summer months. Plaintiff
alleged that Mr. Kettering failed to obtain the land within the five-year period
or do the agreed mowing, yet he purported to convey her portion of Tract 1
to himself and his wife along with the AT&T land by a 2009 deed. She further
complained that Ketterline built two townhouses on the land described in the
2009 deed in a manner inconsistent with the Springbrook Court subdivision
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plan. See Amended Complaint, 7/11/12, at 4-6. These factual allegations
formed the basis of Plaintiff’s various claims, including breach of contract,
fraud, and negligent misrepresentation.2
Defendants filed an answer and new matter. Defendants indicated
therein that the township had requested that the triangle of disputed land be
attached to Lot 1, but Plaintiff’s attorneys failed to include it in the deed that
they drafted conveying the ten tracts to Plaintiff. Defendants maintained that
it was never the intent of the parties for Plaintiff to permanently own the
disputed triangle, that Mr. Kettering did mow the lawn, and that he did not
pay the $150 per year because it was supposed to cover additional real estate
taxes incurred by Plaintiff which she never actually realized. Further, since
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2 The following is an excerpt from Exhibit A of the parties’ 2002 Agreement
showing the triangle of land at issue in the instant case:
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Plaintiff’s attorneys failed to include the disputed land in her deed, Defendants
still owned it and were free to reconvey it without Plaintiff’s consent or
involvement. Finally, Defendants denied that they breached any agreement
with Plaintiff in constructing the townhouses on their land, and asserted
violations of the statute of frauds and statute of limitations. See Answer to
Amended Complaint and New Matter, 7/30/12, at ¶¶ 10-38, 99-10.
On January 2, 2013, after Plaintiff responded to the new matter and the
pleadings had closed, Defendants filed another notice of Plaintiff’s deposition
and served it upon Plaintiff and her attorney. The docket evinces no further
activity in the action for approximately eight years.
On December 15, 2020, Defendants filed a motion to remove the default
judgments from the docket and for the entry of a judgment of non pros.
Although styled as a motion rather than a petition, the filing was verified by
Defendants. Therein, Defendants noted that, although the trial court had
ordered the default judgments against them to be opened, the docket still
listed the judgment. They additionally asserted that Plaintiff had not taken
any steps to prosecute her complaint and lis pendens since she filed her reply
to new matter in August 2012. See Motion to Remove Judgments and for
Judgment Non Pros, 12/15/20, at 4. Defendants averred that Plaintiff failed
to appear for her deposition scheduled for January 24, 2013. Defendants
further averred that they had been leasing the property, which included the
triangle of land disputed by Plaintiff, and had entered into an agreement to
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sell it. However, the lis pendens and judgment “created impediments” to
closing the sale. Id. at 5. Defendants maintained that these facts established
that Plaintiff had failed to move her case forward with reasonable promptitude,
that she had brought no compelling reason for the delay to the court’s
attention, and they have suffered actual prejudice in that they cannot close
upon their agreement. Id. at 7. Defendants simultaneously filed a praecipe
to assign the motion to a judge for disposition.
Plaintiff, through new counsel, filed a brief in opposition to Defendants’
motion. In her response, Plaintiff alleged that, after her prior counsel filed the
reply to new matter in August 2012, counsel “had his firm go out of business
in 2015 or 2016.” Brief in Opposition to Motion to Remove Judgments and for
Judgment of Non Pros, 1/7/21, at 3. Plaintiff maintained that, although
Defendants apparently were aware of that fact, she was not, and had
“assumed that [prior counsel] was still working on the case” and believed that
“he may have issued written discovery.” Id. at 4. She asserted that she “did
write to [prior counsel] in recent years, but has not received a response.” Id.
Hence, while Plaintiff agreed that the default judgments against Defendants
should be removed from the docket, she argued that she had a compelling
reason to justify the delay in the case while Defendants had not suffered any
prejudice, and that she wished to prosecute her claims with new counsel. Id.
at 6.
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Given the retirement of the trial judge to whom the case had previously
been assigned, the case was reassigned by the Lancaster County President
Judge on January 15, 2021. By order of February 3, 2021, the trial court
directed the Lancaster County prothonotary to remove the judgment against
Defendants from the docket and granted Defendants’ non pros motion,
dismissing with prejudice both Plaintiff’s complaint and the lis pendens.
On February 11, 2021, Plaintiff filed a motion for reconsideration. She
contended that Defendants’ motion was not adjudicated in accordance with
the local rules, which permitted the filing of a praecipe for a determination
only after the conclusion of briefing. See Motion for Reconsideration, 2/11/21,
at 4. Plaintiff also indicated that, since Defendants submitted their motion
with a proposed rule to show cause, she had believed that a rule would have
been issued and briefing schedule imposed before the motion was decided.
Id. Finally, Plaintiff asserted that a hearing was necessary, as it would allow
her to produce evidence of her compelling reasons for the delay and
demonstrate Defendants’ inability to prove prejudice. Id. at 5.
Before any action was taken on the motion for reconsideration, Plaintiff
filed a petition to open or strike the judgment of non pros. In that filing,
Plaintiff reiterated her contentions that the non pros judgment was not
properly entered despite the unquestionably substantial delay, given her
compelling reasons for the period of inactivity and the absence of prejudice to
Defendants, and further asserted that her petition was timely filed and that
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she had a meritorious cause of action. See Petition to Open/Strike Judgment
of Non Pros, 2/22/21, at 3-5.
The trial court described the subsequent happenings as follows:
On February 23, 2021, a phone conference was held with
counsel for Plaintiff and Defendants to determine what evidence
Plaintiff would present at a hearing to justify her failure to pursue
her claim for eight years. Plaintiff’s attorney indicated that
Plaintiff would testify to possibly three attempts to contact her
attorney of record from 2011 to 2015 and no excuse was given
for her failure to appear for the deposition. Further, Plaintiff took
no action to contact the local bar association, disciplinary board,
an attorney, or th[e trial] court to inquire about the status of her
attorney of record (who apparently retired in approximately
2015). On February 23, 2021, the [trial] court denied the
Plaintiff’s motion for reconsideration.
Trial Court Opinion, 4/29/21, at unnumbered 2-3 (cleaned up and some
punctuation added).
Plaintiff filed a notice of appeal on March 5, 2021, and both she and the
trial court complied with Pa.R.A.P. 1925. Plaintiff presents the following
questions for our review:
A. Whether the trial court erred in failing to develop a record
and make factual findings with respect to the elements necessary
to establish a claim for non pros?
B. Whether the trial court erred in granting judgment for non
pros where [Plaintiff] had a compelling reason for delay in the
proceedings and [Defendants] had not shown any prejudice
resulting from the delay?
C. Whether the trial court erred in granting [Defendants’]
motion for non pros where procedural defects in the motion
prevented [Plaintiff] from a full and fair opportunity to litigate the
motion?
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D. Whether the trial court erred in striking the lis pendens in
this matter sua sponte and prior to a final judgment on the merits?
Plaintiff’s brief at 2-3.
Before we address the substance of this appeal, we first consider
whether it is properly before us. See, e.g., Adams v. Erie Ins. Co., 238
A.3d 428, 431 (Pa.Super. 2020) (“Since we lack jurisdiction over an
unappealable order it is incumbent on us to determine, sua sponte when
necessary, whether the appeal is taken from an appealable order.” (cleaned
up)).
Plaintiff purported to appeal from both (1) the order entering the non
pros judgment and striking the lis pendens, and (2) the order denying her
motion for reconsideration. See Notice of Appeal, 3/5/21, at 1 and Exhibit A.
“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.” Bartolomeo v.
Marshall, 69 A.3d 610, 613–14 (Pa.Super. 2013). Furthermore, it is well
settled that “[a]n order denying a motion for reconsideration is not
appealable.” Blackburn v. King Inv. Grp., LLC, 162 A.3d 461, 464 n.5
(Pa.Super. 2017).
Nonetheless, we have observed that “[i]t is the nature of the relief
requested, not the styling of a motion, that controls.” Green v. Tr. of Univ.
of Pennsylvania, ___ A.3d ___, 2021 PA Super 209, 2021 WL 4851998 at
*4 (Pa.Super. Oct. 19, 2021). Here, Plaintiff’s motion for reconsideration was
the functional equivalent of a petition to open the judgment of non pros, as it
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contained the elements of such a petition and asked the court to allow her
claims to proceed. Moreover, Plaintiff did indeed file a petition to open the
judgment before the trial court issued its February 23, 2021 order, and the
order addressed the issues raised in the petition to open.3 Accordingly,
elevating substance over form, we treat the trial court’s February 23, 2021
order as an appealable order denying Plaintiff’s petition to open the non pros
judgment, and we proceed to review the substance of her appeal.
We begin with the legal tenets applicable to the first three issues raised
by Plaintiff:
The entry of a judgment of non pros and a subsequent request for
relief from such judgment are governed by different tests.
To dismiss a case for inactivity pursuant to a defendant’s motion
for non pros there must first be a lack of due diligence on the part
of the plaintiff in failing to proceed with reasonable promptitude.
Second, the plaintiff must have no compelling reason for the
delay. Finally, the delay must cause actual prejudice to the
defendant. As always, this determination is to be made by the
trial court, whose decision will not be disturbed absent an abuse
of discretion.
In contrast, a petition to open a judgment of non pros is governed
by a different standard. Pennsylvania Rule of Civil Procedure
3051(c) provides as follows:
Rule 3051(c) Relief from Judgment of Non Pros
(c) If the relief sought includes the opening of the
judgment of non pros for inactivity, the petition shall
allege facts showing that
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3 The docket included in the certified record does not reflect a separate order
related to the petition to open the judgment, and the trial court in its opinion
does not indicate that the petition remains pending.
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(1) the petition is timely filed,
(2) there is a meritorious cause of action, and
(3) the record of the proceedings granting the
judgment of non pros does not support a finding
that the following requirements for entry of a
judgment of non pros for inactivity have been
satisfied:
(i) there has been a lack of due diligence on the
part of the plaintiff for failure to proceed with
reasonable promptitude,
(ii) the plaintiff has failed to show a compelling
reason for the delay, and
(iii) the delay has caused actual prejudice to the
defendant.
Thus, in addition to challenging the court’s application of the [test
governing the initial entry of the non pros judgment], a petitioner
must also timely file his petition and assert a meritorious cause of
action.
Intech Metals, Inc. v. Meyer, Wagner & Jacobs, 153 A.3d 406, 410-11
(Pa.Super. 2016) (cleaned up).
Both the trial court’s initial entry of a non pros judgment and its ruling
upon a subsequent petition to open it “are subject to the same abuse of
discretion standard of appellate review.” Id. at 411. “This means that the
trial court’s decision will be overturned only if it reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support as to be clearly erroneous.” Banks v. Cooper, 171 A.3d 798, 801
(Pa.Super. 2017) (cleaned up).
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With these principles in mind, we turn to Plaintiff’s arguments regarding
the non pros judgment. We first consider Plaintiff’s substantive challenge to
the trial court’s grant of the non pros judgment and failure to open it. Plaintiff
maintains that the trial court abused its discretion in finding that she did not
have a compelling reason for the delay in the case, reiterating that she was
unaware that her prior counsel had retired and believed that he was
prosecuting the matter. Plaintiff’s brief at 12. Plaintiff asserts that she herself
acted diligently, by engaging counsel in the first place, promptly obtaining
new counsel once Defendants filed their motion and made her aware that prior
counsel had not been acting, and that she is prepared to proceed to promptly
enforce her rights with present counsel. Id. at 13.
Plaintiff also contends that Defendants did not show any prejudice
recognized as relevant to the non pros analysis. She argues that the prejudice
alleged by Defendants and accepted by the trial court, namely their inability
to sell the property, is not related to the delay in her prosecution of her claims.
Rather, “[i]f anyone has been harmed by the delay in returning the property
to the rightful owner, it is [Plaintiff].” Id. at 15.
The trial court addressed Plaintiff’s substantive claims of error as
follows:
This case began in January of 2011. For the first two years there
was a fury [sic] of litigation regarding the pleadings. Plaintiff was
scheduled to be deposed on January 24, 20[13], and she failed to
appear. To date, no written discovery has been propounded nor
any deposition taken. Plaintiff has done nothing to move her case
forward, showing a lack of due diligence on her part and failing to
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proceed with reasonable promptitude. [P]laintiff’s explanation for
not proceeding with the case was the retirement of her attorney
years ago. The court does not find the Plaintiff’s reason for her
extreme delay compelling. It does not explain away eight years of
no activity. If not for Defendant[s’] motion, there would still be
no action in this case. Lastly, the Defendants are prejudiced by
the delay. They have entered into an agreement of sale for the
properties at issue . . . . To allow the properties to remain
encumbered longer and have the Defendants miss out on what is
commonly understood as a seller’s market is extreme prejudice.
The Defendants cannot be expected to wait indefinitely for the
Plaintiff to proceed with her case.
Trial Court Opinion, 4/29/21, at unnumbered 3-4.
Upon review of the certified record in light of the trial court’s opinion,
we conclude that Plaintiff’s arguments are unavailing. First, although the trial
court made no explicit findings as to the requirements of Rule 3051(c)(1) and
(2), we will assume arguendo that it deemed Plaintiff’s petition to open the
judgment to have been promptly filed and that it alleged a meritorious cause
of action. Second, Plaintiff does not dispute that there was a lack of diligence
in the prosecution of her case. Thus, the only points of contention, applicable
both to the initial entry of the judgment and the trial court’s refusal to open
it, are whether Plaintiff had a compelling reason for the delay and whether
Defendants established actual prejudice.
Plaintiff has not convinced us that the trial court’s analysis “reflects
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support as to be clearly erroneous.” Banks, supra at 801 (cleaned
up). On the contrary, it was entirely reasonable for the trial court to feel less
than compelled by Plaintiff’s meager efforts to follow up with her attorney,
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none of which had occurred in the five years prior to Defendants’ motion. Cf.
Horwath v. DiGrazio, 142 A.3d 877, 883 (Pa.Super. 2016) (holding plaintiff
presented a compelling reason for the inactivity caused by her attorney’s
abandonment where she had “documented efforts to get in touch with
[counsel] to move the case forward” and “had relied on her counsel’s
representations that the lawsuit was being diligently pursued” (cleaned up)).
Further, we are not persuaded that prejudice in this context has as
narrow a definition as Plaintiff advocates. As Defendants aptly note, were
Plaintiff’s position correct, a non pros could never be entered no matter how
great the period of inactivity and uncompelling its reason, so long as the
“witnesses remain available and all evidence is intact and accounted for. Such
a view is contrary to the equitable principles upon which non pros is or is not
entered.” Defendants’ brief at 14. Indeed, we have observed that “[c]ourts
have the discretion to dismiss a case when a plaintiff has failed to diligently
prosecute an action, and, as a result, caused a defendant prejudice, unfairness
and anxiety.” Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates,
Inc., 685 A.2d 141, 150 (Pa.Super. 1996).
Here, Plaintiff does not claim to own all or even a large portion of the
land Defendants wish to sell, and, by her own pleadings, she patently
contemplated that the disputed triangle would end up as Defendants’
property. Yet she singlehandedly has prevented Defendants from alienating
their lot for nearly a decade, while making no effort to pursue her supposedly
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meritorious claims other than making a few unsuccessful attempts to contact
her attorney. Upon these facts, we cannot hold that the trial court abused its
discretion in ruling that Defendants should be permitted to take advantage of
a favorable market and proceed with their sale now, rather than wait until
Plaintiff and her new counsel get their case up to speed and start the discovery
process that she actively thwarted eight years ago when she failed to appear
for her deposition. Accordingly, no relief is due on Plaintiff’s substantive
challenge to the non pros judgment.
We next consider Plaintiff’s contention that there were fatal procedural
defects in Defendants’ motion for non pros. Specifically, she contends that it
was improper for the trial court to enter the non pros judgment “without an
evidentiary hearing or even an argument.” Plaintiff’s brief at 10. Plaintiff
argues that Rule 3051 “clearly contemplates a ‘record of the proceedings
granting the judgment of non pros,’ [such that] there must be some fact
finding process prior to the entry of non pros.” Id. at 9. Plaintiff cites no
authority that a hearing is necessary, but rather relies upon the well-settled
law that a non pros may not be granted solely based upon a lack of diligence
and that prejudice may not be presumed. Id. (citing, inter alia, Jacobs v.
Halloran, 710 A.2d 1098, 1100 (Pa. 1998) (abandoning rule that prejudice
may be presumed in entering non pros judgment ); Ledger v. Eddy, 710
A.2d 1227, 1227 (Pa.Super. 1998) (remanding appeal from denial of relief
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from judgment of non pros founded upon presumed prejudice for application
of Jacobs decision)).
Plaintiff also cites Defendants’ improper filing of a motion, rather than a
petition, in seeking entry of the judgment of non pros, in violation of Lancaster
County Local Rule 206.1. See Plaintiff’s brief at 17. This error, she maintains,
“resulted in [Plaintiff’s] being denied an opportunity to develop a record in this
matter,” since the Rule provides “for forty-five days of discovery and an
equivalent opportunity to an evidentiary hearing.” Id. at 18. This lack of the
opportunity was further exacerbated, she contends, by Defendants’ immediate
filing of a praecipe for disposition pursuant to Local Rule 208.3, which caused
the motion to be forwarded to a judge before a briefing schedule could be
established for her response. Id. Plaintiff suggests that this haste resulted
in the non pros judgment being entered before the court considered the
response that she filed despite the rules violations. Id. at 19. Based upon
these procedural defects, Plaintiff argues that the case should be remanded
to give her an opportunity to develop a record. Id.
The trial court determined that any procedural defects in Defendants’
motion did not warrant relief because they were de minimis. See Trial Court
Opinion, 4/29/21, at unnumbered 4. It explained:
Both parties presented their facts and arguments in the
appropriate filings. Whether Defendants called their filing a
motion or a petition the final result would be the same.
Additionally, Defendant[s’] timing in filing the praecipe of
disposition caused no harm. The court waited for Plaintiff’s
response before considering the motion. The court thoroughly
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reviewed the docket prior to signing the order dismissing the case.
Furthermore, before denying the motion for reconsideration, the
court held a phone conference with counsel to ask counsel to
proffer what further information would be presented at a hearing
so as to determine whether a hearing would be helpful to the
Plaintiff and the court in making a decision. Plaintiff’s counsel did
not have any additional information but rather reiterated the same
facts and arguments in her filings. Only after this conference call
was Plaintiff’s motion for reconsideration denied.
Id. (unnecessary capitalization omitted).
The trial court’s explanation of the materials it considered, along with
the timing of its ruling, convinces us that Plaintiff is entitled to no relief. It is
clear that the trial court’s rejection of Plaintiff’s excuse for the delay was based
upon accepting as true the factual representations she offered in her filings.
Plaintiff was further given the opportunity to proffer additional evidence, but
was unable to point to any new facts not already accepted by the trial court
which would result in a different outcome. Stated plainly, Plaintiff is unable
to point to any reason for failure to make contact with her attorney for eight
years that would justify the delay. Nor does she contest the factual
underpinnings of the prejudice caused to Defendants, rather, she offers only
the legal argument rejected above. Consequently, we see no basis to remand
the case to remedy the procedural irregularities.
In her last issue, Plaintiff complains that the trial court erred in striking
the lis pendens in its February 3, 2021 order. We begin with a review of the
applicable legal principles.
Lis pendens is construed to be the jurisdiction, power, or control
which courts acquire over property involved in a suit, pending the
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continuance of the action, and until final judgment. Lis pendens
may be imposed when the property is subject to litigation and that
any interest acquired by the third party will be subject to the result
of the litigation.
The doctrine of lis pendens is based in common law and equity
jurisprudence, rather than in statute, and is wholly subject to
equitable principles. The doctrine does not establish an actual lien
on the affected property. Its purpose is merely to give notice to
third persons that the real estate is subject to litigation and that
any interest which they may acquire in the real estate will be
subject to the result of the action.
In re Foremost Indus., Inc., 156 A.3d 318, 322 (Pa.Super. 2017) (cleaned
up). We review a trial court’s ruling regarding the striking of a lis pendens for
an abuse of discretion. Id.
Plaintiff argues that a lis pendens “should remain in effect pending an
appeal,” observing that a court’s lis pendens power exists during the pendency
of the action “‘until its final judgment thereon.’” Plaintiff’s brief at 19
(quoting U.S. Nat. Bank in Johnstown v. Johnson, 487 A.2d 809, 812 (Pa.
1985) (emphasis in original)). Plaintiff suggests that the trial court’s ruling
should be reversed because, since Defendants did not ask for the lis pendens
to be stricken, she had no opportunity to be heard on the issue before it was
done. Id. at 20.
The trial court offered the following succinct response to Plaintiff’s lis
pendens claim of error: “The court did not err in striking the lis pendens. The
lis pendens was dismissed with the final judgment for Defendants.
Furthermore, Plaintiff did not request relief or stay pending this appeal.” Trial
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Court Opinion, 4/29/21, at unnumbered 4 (unnecessary capitalization
omitted).
Plaintiff has failed to convince us that the trial court abused its discretion
in striking the lis pendens simultaneously with the dismissal of her complaint.
She offers no authority to establish that a lis pendens must be continued
during an appeal. Nor has Plaintiff explained how she was harmed by the trial
court’s decision to strike what was not a lien but merely a notice to potential
purchasers, where the reason Defendants sought to have her case dismissed
was because their potential purchasers had notice of the now-defunct claim.
Finally, Plaintiff offers no counter to the trial court’s observation that she could
have, but failed to, request a stay pending the appeal to preserve the status
quo. Therefore, we have no reason to disturb the trial court’s ruling.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2021
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