Pennsylvania-New York Realty Inc. v. Foote

23 Pa. D. & C.3d 496, 1982 Pa. Dist. & Cnty. Dec. LEXIS 367

• Court: Pennsylvania Court of Common Pleas, Lackawanna County
• Decided: September 27, 1982
• Docket: no. 81 Civil 7208
• Status: Published

Opinion

MUNLEY, J.,

We find no merit in defendant’s motion to dismiss and an appropriate order will be entered.

The issue here presented for our consideration is whether plaintiff is precluded under Pa.R.C.P. 1037(a) from filing a new summons or complaint where a judgment of non pros was previously entered.

A judgment of non pros is simply a dismissal for want of diligent prosecution and is not a judgment on the merits. Where a plaintiff is non-prossed for neglecting to file a reasonable complaint, as is our concern, or even where he fails to file an amended pleading, a judgment for defendant is not on the merits and does not preclude plaintiff from commencing another suit on the same cause of action, where as here, the statute of limitations has not expired and, where appropriate, plaintiff has made payment for the costs of the former suit: Gordon-Stuart Ltd. v. Allen Shops, Inc., 361 A. 2d 770 (1976); Bucci v. Detroit Fire & Marine Ins. Co., 109 Pa. Superior Ct. 167, 167 A. 425 (1933).

Under the present circumstances, the statute of limitations on plaintiffs claim had not run, and finding no additional costs due, we will enter an order denying defendant’s motion.

ORDER

Now, September 27, 1982 defendant’s motion to dismiss is hereby denied.