Supreme Court Amends "Non Pros Judgment for Inactivity" Rules

In an Order dated April 5, 2013, Pennsylvania's Supreme Court amended Rule 3051 of the Pennsylvania Rules of Civil Procedure to allow a plaintiff to open a "judgment of non pros for inactivity" by showing that the defense failed to meet each of Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998) three (3) requirements for the judgment's entry, including a showing of "actual prejudice".

A "non pros judgment for inactivity" occurs when a court dismisses case as a "consequence of long delay of prosecution" and "when a defendant's position or rights are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be an injustice to permit presently the assertion of a claim against him.”  Jacobs v. Halloran, 710 A.2d at 1102.

Formerly, Pennsylvania Rules of Civil Procedure 3051 required plaintiffs seeking non pros judgment relief to timely file a petition demonstrating "a reasonable explanation or legitimate excuse" for the inactivity and a meritorious cause of action.  Pa. R. Civ. P. 3051(b).

The new amendment adds a third subdivision to Rule 3051 - - Subdivision (c) - - stating that a plaintiff seeking to open a non pros judgment for inactivity must allege facts showing that the petition is timely filed, a meritorious cause of action and the record of the proceedings granting the non pros judgment does not support a finding that the following "non pros judgment's entry for inactivity" requirements 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.

Subdivision (c) does not apply to non pros judgments for failure to file a complaint after a writ of summons has been filed and the new subdivision only applies to cases in which, following a complaint's filing, an extended docket activity lull occurs.

Unlike Subdivisions (a) and (b) of Rule 3051, which imply that prejudice will be automatically deemed as resulting from a two (2) year prosecution delay, the rule change expressly requires a defendant to show actual prejudice to maintain a non pros judgment.

The newly adopted amendment also changes Rule 3051's subdivision (b)(2) (which had previously stated, "If the relief sought includes the opening of the judgment, the petition shall allege facts showing that ... (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay") by adding the clause "except as provided in Subdivision (c)" and replacing "inactivity or delay" with "conduct that gave rise to the entry of judgment of non pros".

A reasonable reading of the rule's new language suggests that a plaintiff can open a non pros judgment for inactivity if they can show that the defendant was not prejudiced by the delay, even if the plaintiff does not have a compelling reason for the delay or showed insufficient due diligence in moving the proceedings along.

According to the Supreme Court's order, the change is scheduled to take effect May 5, 2013.