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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10238
Experience:  Civil litigation attorney for individuals and businesses.
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Is a dismissal of a case "non pros" in Pennsylvania

Customer Question

Is a dismissal of a case "non pros" in Pennsylvania considered to be a dismissal "with prejudice" or "without prejudice" to refilling same?
The statute of limitations has not run yet if a "non pros" dismissal is without prejudice. Is there a statute or case you can cite confirming your opinion? Thanks.
Submitted: 8 months ago.
Category: Legal
Expert:  CalAttorney2 replied 8 months ago.

Dear Customer,

A dismissal of a case "non pros" (for failure to prosecute) can be set aside.

Here is the Penn Statute: http://www.pacode.com/secure/data/231/chapter200/s237.3.html

While certainly not exhaustive, here is a short discussion of how one case where the court entered a judgment non pros was later set aside: http://www.torttalk.com/2011/06/it-is-still-possible-to-have-case.html

Customer: replied 8 months ago.
Thank you for the response but it did not answer my question. More particularly, a plaintiff filed suit in Pennsylvania small claims court and received a judgment in her favor. The defendant appealed and the case was docketed in the court of common pleas which is the Pennsylvania trial court. Appeals from small claims court are heard de novo. The plaintiff did not file a complaint as required by the local rules. Defendant moved to dismiss the case and the court dismissed the suit "non pros". My question is when the trial court dismissed the case "non pros", is that a dismissal with or without prejudice? Plaintiff did not have a lawyer. She did not move to reinstate the case under the 10 day rule. Is she now barred from refiling the case because a dismissal "non pros" is with prejudice? In most jurisdictions a dismissal for failure to prosecute a claim is without prejudice. Is a non pros dismissal for failure to prosecute a complaint a final disposition of the case barring refiling of the suit if the statute of limitations has not otherwise run? I understand there is a 10 day window to reopen the case. What happens if the plaintiff refiles and the statute of limitations has not otherwise run? If the non pros dismissal is with prejudice, the plaintiff can not sue again. If the dismissal non pros is without prejudice, then the plaintiff can sue again but only if the statute of limitations has not yet run. Res judicata would not apply if the dismissal is without prejudice. I hope my question is clear and makes sense. Thanks for your help.
Expert:  CalAttorney2 replied 8 months ago.

Once the time to make the motion to set aside has passed, the plaintiff can no longer file a new case.

While the ruling has the same "res judicata" effect of a "dismissal with prejudice," the court does not use that language, because this is a different procedure and a different form of resolving the matter.

- This is a "Judgment of non pros" vs an "Entry of dismissal with or without prejudice" (so in this case the court is actually entering a judgment, a final resolution).

The explanatory notes found accompanying the statute (above) have some helpful guidance on the issue, but a failure to prosecute in one action precludes the defendant from filing a second case against the same defendant on the same facts.

(Again, I want to be precise with the language here - it has a precluding effect between the two parties to the action - the plaintiff cannot sue the defendant on the same facts a second time ("res judicata") but the ruling is a procedural one it is not made on its merits, so it cannot be used in other proceedings (for example administrative matters, or introduced as evidence in future civil suits to show fault or lack of liability, the only thing it shows is that the plaintiff didn't prosecute the claim).