Opinion
J-A28005-15 No. 934 EDA 2015
11-04-2015
SHEILA T. FARRELL AND MARTIN SHERIDAN A/K/A LEO MARTIN SHERIDAN v. ANNA ROHMAN, VERA CC. GORDON, GWENDOLYN CRELLIN, AND ROBERT SCHMIDT APPEAL OF: SHEILA T. FARRELL
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 2, 2015
In the Court of Common Pleas of Pike County
Civil Division at No(s): 2431 of 2010
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J. MEMORANDUM BY GANTMAN, P.J.:
Appellants, Sheila T. Farrell and Martin Sheridan a/k/a/ Leo Martin Sheridan, appeal from the order entered in the Pike County Court of Common Pleas, granting the motion for non pros of Appellees, Anna Rohman and Robert Schmidt. We affirm.
The court entered default judgment against Vera CC. Gordon and Gwendolyn Crellin on February 8, 2011; they are not parties to this appeal.
The relevant facts and procedural history of this case are as follows. Appellants are the owners of real property known as Rohman's Hotel. The septic system serving the hotel is located on a separate property owned by Appellants and is accessible only by a service road, which crosses real property owned by Appellees. Appellants allege Appellees blocked Appellants' access to the septic system property by depositing a pile of dirt in the middle of the service road on or about May 4, 2009. On December 21, 2009, Appellants filed a complaint against Appellees seeking to prevent Appellees' alleged unwarranted interference with Appellants' access to their septic system property. On February 6, 2010, Appellees filed preliminary objections to Appellants' complaint. After oral argument on Appellees' preliminary objections, Appellants withdrew their complaint on March 23, 2010.
On November 5, 2010, Appellants filed a second complaint against Appellees, again seeking to prevent Appellees' alleged interference with Appellants' access to their property. Appellants filed a motion for summary judgment on August 16, 2011. After a hearing, the court denied Appellants' motion on October 5, 2011. On April 23, 2012, Appellants' counsel, Sanford D. Beecher, died. After Mr. Beecher's death, other attorneys in Mr. Beecher's law firm took over Appellants' case against Appellees. Appellees' counsel notified Appellants' new counsel, by letter dated September 24, 2013, that there had been no movement in the case, for almost two years, since the court denied Appellants' motion for summary judgment on October 5, 2011. Appellants' new counsel did not respond to Appellees' letter, and no further action was taken in Appellants' case.
On September 12, 2014, Appellees filed a motion for non pros against Appellants. Appellants filed a response to Appellees' motion on September 18, 2014, which explained that the reason for the delay was the death of Mr. Beecher. Appellants' response also stated they were ready to proceed with the case in an expedited manner. On January 6, 2015, the court held a hearing on Appellees' motion for non pros, and the court granted Appellees' motion by order dated March 2, 2015. Appellants filed a timely notice of appeal to this Court on March 27, 2015. On March 31, 2015, the court ordered Appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellants timely complied on April 17, 2015.
Appellants raise the following issues for our review:
THE TRIAL COURT ERRED IN GRANTING A MOTION FOR NON PROS IN:
(Appellants' Brief at 7).A. FAILING TO GIVE ANY OR ADEQUATE WEIGHT TO THE IMPACT ON THE CASE OF THE DEATH OF THE ONLY ATTORNEY WHO HANDLED THE CASE FOR ALL THE YEARS THAT IT HAD BEEN PENDING, SANFORD D. BEECHER, ESQUIRE, WHO DIED ON APRIL 23, 2012.
B. FAILING TO REQUIRE THAT [APPELLEES] SHOW ADEQUATE PREJUDICE FROM THE DELAY IN PROSECUTING THE SUIT.
C. [] FINDING THAT THE INFORMATION SUBMITTED BY [APPELLEES] CONSTITUTED ACTUAL EVIDENCE OF PREJUDICE.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Joseph F. Kameen, we conclude Appellants' issues on appeal merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. ( See Opinion in Support of Order Granting Appellees' Motion for Non Pros, filed March 2, 2015, at 2-4, and Trial Court Opinion, filed May 7, 2015, at 2-6) (finding: Appellees sent letter, dated September 24, 2013, to Appellants' counsel aimed at moving case to resolution; however, Appellants' counsel did not respond and no docket activity followed receipt of letter; Appellants took action in case only after Appellees filed motion for non pros on September 12, 2014; Appellants' failure to respond to Appellees' letter and lack of docket activity in case for nearly three years supports conclusion that Appellants failed to proceed promptly with case; court acknowledged that Appellants' counsel's death justified some delay in proceedings, but it did not excuse nearly three-year delay; Appellants failed to provide additional explanation for delay, so Appellants lacked compelling reason for delay in prosecuting case; this delay caused significant prejudice to Appellees because Appellee Rohman is ninety years old, suffers from advancing dementia, and will likely be unable to testify in case; at oral argument, Appellee Schmidt presented uncontested testimony concerning Appellee Rohman's condition, which supports finding that Appellee Rohman has suffered diminution of her ability to present her case; court concluded Appellees met burden for judgment of non pros by showing lack of due diligence by Appellants in prosecuting their case with reasonable promptitude, lack of compelling reason for delay, and significant prejudice to Appellees resulting from delay; therefore, court properly granted Appellees' motion for non pros). Accordingly, we affirm on the basis of the trial court's opinions.
The opinion states that Appellee Rohman is ninety years old; however, at the hearing on Appellees' motion for non pros, Appellee Schmidt testified that Appellee Rohman is in fact ninety-four years old. ( See N.T. Motion for Non Pros Hearing, 1/6/15, at 7).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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