Wade Clark Mulcahy LLP

The Superior Court of Pennsylvania recently reversed a trial court’s sua sponte dismissal of a slip and fall lawsuit.  In 2014, plaintiff Kimberly Osborne was shopping inside a Boscov’s Department Store retail tent when she was caused to fall and suffered a fractured ankle and other serious injuries.  Osborne v. Boscov's Inc., No. 902 MDA 2023, 2024 WL 2153579, (Pa. Super. Ct. May 14, 2024).

Osborne and her husband (“the Osbornes”) initiated a lawsuit against Boscov’s, Inc. and Boscov’s Department Store, LLC (“Boscov’s”) in June 2016 by filing a writ of summons and did not file their complaint until February 2017.  Boscov’s then did not answer until March 2018, which would be the only action on the docket until February 2020 when the Prothonotary’s Office issued the first of two termination notices.  Each time, however, the Osbornes filed a statement of intention to proceed  Id. at *1.

Following a conference on May 8, 2023, the trial court discontinued the case with prejudice for failure to prosecute the matter.  The Osbornes appealed on the basis the Court did not have the power to dismiss the case sua sponte for failure to prosecute, that there were compelling reasons for the delay, and, there was no showing of prejudice to Boscov’s.

On appeal, the Superior Court held the trial court did have authority to dismiss the case sua sponte for failure to prosecute.  Id. at 2.  However, the Superior Court could not let the dismissal stand because there had been no showing of prejudice suffered by defendants as a result of the delay.  Id. at 3.  To dismiss a case for failure to prosecute, a defendant must demonstrate the delay caused “actual prejudice.”  Id.  (citation omitted).

This decision should serve as a reminder to defendants and their attorneys of the importance of timely filings and moving for dismissal when a plaintiff fails to prosecute their case.  To that end, when moving for dismissal for failure to prosecute, a defendant must demonstrate that plaintiff has shown a lack of due diligence, failed to provide a lack of any compelling reason for the delay, and that the defendant has suffered actual prejudice as a result of the delay.