J-A16025-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JOHN MORASKI AND KRISTINE 

MORASKI

 Appellants

v.

THERMO-TWIN INDUSTRIES, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 9 WDA 2024

Appeal from the Order Entered December 14, 2023

In the Court of Common Pleas of Erie County Civil Division at No(s): 

12355-2012

BEFORE: KUNSELMAN, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.: FILED: August 14, 2024

John and Kristine Moraski (Plaintiffs) appeal from the order denying their 

petition to open the judgment of non pros entered in favor of Thermo-Twin 

Industries, Inc. (Thermo-Twin, or Defendant). After careful review, we affirm.

Appellants’ complaint alleged the following facts:

9. In or around the Spring of 2010, Plaintiffs were looking to 

purchase 2 new construction windows for the home that they were 

building at 11272 Lake Pleasant Road, Union City.

10. Plaintiffs contacted Defendant about their window needs 

because Defendant held itself out to the general public as a 

manufacturer of high quality new construction windows that would 

sell them factory direct to customers[.]

11. On April 13, 2010, Defendant made a sales presentation to 

Plaintiffs and, at the conclusion of that presentation, Plaintiffs 

signed Defendant’s form sales agreement for the purchase of 27 

new construction windows at a cost of $6,344.63. ...
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12. In relevant part, the sales agreement required Defendant to:

a. Manufacture and supply new construction vinyl clad 

windows of the identified type and model.

b. Manufacture the windows with quality materials and 

according to its specifications for the type and model of 

window purchased.

c. Manufacture the windows in a good and workmanlike 

manner and according to standard construction practices.

13. In addition to the duties undertaken through the sales 

agreement, Defendant supplied Plaintiffs with a Limited Lifetime 

Warranty that guaranteed that the windows should be free from 

defects in material and workmanship for a period of five years. ...

14. On or about June 16, 2010, Defendant delivered the 27 new 

construction windows to Plaintiffs for Plaintiffs[] to install.

15. Upon inspection by Plaintiffs, it was determined that the 

windows were not manufactured to the proper specifications and 

that they were not free of defects in material and workmanship.

16. Plaintiffs notified Defendant of the defects and, on June 23, 

2010, Plaintiffs and Defendant agreed that Plaintiffs would accept 

six of the windows for installation in the home’s basement and 

that Defendant would manufacture 21 new construction windows 

to the same terms and conditions required by [the sales 

agreement] to replace the 21 that were rejected by Plaintiffs. ...

17. Thereafter, Defendant delivered 21 new construction windows 

to Plaintiffs for Plaintiffs[] to install.

18. Upon inspection by Plaintiffs, it did not appear that the 

windows were manufactured to the proper specifications[,] and 

they did not appear to be free of defects in material and 

workmanship.

19. Plaintiffs contacted Defendant to report their concern that the 

windows were defectively manufactured[,] and they informed 

Defendant of the nature of the defects.
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20. Defendant assured Plaintiffs that the windows were 

manufactured to specification, that they were not defective in 

material or workmanship, and that they were safe to install.

21. Relying on Defendant’s representations about the quality and 

fitness of the windows, Plaintiffs installed the windows and then 

installed the vinyl siding on the exterior of the home.

22. Thereafter, Plaintiffs experienced numerous problems with all 

21 of the windows. The problems have included: material failure, 

water leakage, air infiltration, and rattling.

23. Defendant has sent employees out to Plaintiffs’ home to 

inspect the windows and Plaintiffs have spoken over the telephone 

with other employees of Defendant. Defendant’s employees have 

confirmed that the windows were defectively manufactured.

24. Defendant’s failure to supply windows that were free of defects 

in material and workmanship is a breach of the parties’ contract[,] 

and it has caused damage to Plaintiffs.

Complaint, 7/2/12, ¶¶ 9-24.

On July 2, 2012, Plaintiffs filed a complaint, alleging breach of contract, 

breach of express warranty, and violation of Pennsylvania’s Unfair Trade 

Practices and Consumer Protection Law (UTPCPL).1

Thermo-Twin filed an answer and new matter on August 23, 2013. In 

its new matter, Thermo-Twin asserted, inter alia, that Thermo-Twin relied on 

measurements provided by Plaintiffs; it never declared any of the windows 

were defective; and the warranty does not cover damages or defects resulting 

from improper maintenance, alteration, or misuse. See Answer and New 

Matter, 8/23/13, ¶¶ 1-6. Plaintiffs filed a reply.

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1 73 P.S. §§ 201-1 – 201-10.
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The docket reflects minimal activity in the following years. On June 25,

2021, the trial court prothonotary issued a notice of proposed termination of 

court case. See Pa.R.Civ.P. 230.2 (Termination of Inactive Cases). Plaintiffs 

subsequently filed a praecipe for arbitration. The matter never proceeded to 

arbitration.

On October 16, 2023, the trial court prothonotary issued a second notice 

of proposed termination of court case. Plaintiffs responded by filing a 

statement of intention to proceed.

On November 22, 2023, Thermo-Twin filed a motion for entry of a non 

pros judgment, averring Plaintiffs failed to diligently proceed with the action 

in the eleven years since they filed the complaint. Motion for Entry of 

Judgment Non Pros, 11/22/23, ¶¶ 16-17. Thermo-Twin argued it was 

prejudiced by the delay “because memories have faded, witnesses have 

moved away, and employees who may have been involved in the project are 

no longer employed by Thermo-Twin.” Id. ¶ 20. “Additionally, the condition 

of the windows in question and quality of the installation process is now also 

nearly impossible to discern given the fact that the windows were purchased 

in 2010.” Id. ¶ 21.

Plaintiffs filed a response and a brief in support thereof. In part, 

Plaintiffs cited settlement discussions and the board of arbitrators’ failure to

schedule an arbitration hearing as reasons for the delay. See Response and 

Brief, 12/4/23, at 9-10.
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On December 12, 2023, the trial court issued an opinion and order 

granting Thermo-Twin’s motion for judgment of non pros and dismissing 

Plaintiffs’ complaint with prejudice. The trial court noted that more than 13 

years had passed since the events giving rise to the action had taken place. 

Opinion and Order, 12/14/23, at 5. The court also found that Plaintiffs failed 

to set forth compelling reasons for their delay, and that Thermo-Twin 

established actual prejudice resulting from the delay. Id. Judgment was 

entered on the docket on the same date. 

Plaintiffs filed a petition to open the non pros judgment on December 

13, 2023, which the trial court denied. This timely appeal followed. Plaintiffs 

and the trial court have complied with Pa.R.A.P. 1925.

Plaintiffs raise the following issues for review:

1. Did the trial court abuse its discretion by denying [Plaintiffs’] 

petition to open judgment of non pros when the record of the 

proceedings on the motion for judgment of non pros established 

that [Thermo-Twin] had waived its right to receive a judgment of 

non pros?

2. Did the trial court abuse its discretion by denying [Plaintiffs’] 

petition to open judgment of non pros when the petition alleged 

facts showing they had a meritorious cause of action?

3. Did the trial court abuse its discretion by denying [Plaintiffs’] 

petition to open judgment of non pros when the record of the 

proceedings on the motion for judgment of non pros did not 

establish that [Thermo-Twin] suffered actual prejudice caused by 

[Plaintiffs’] alleged delay in prosecuting their claims?
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Plaintiffs’ Brief at 4 (issued reordered).

2

We review the court’s denial of Plaintiffs’ petition to open mindful of the 

following. “A request to open a judgment of non pros ... is in the nature of an 

appeal to the equitable powers of the court....” Bartolomeo v. Marshall, 69 

A.3d 610, 613 (Pa. Super. 2013).

The entry of a judgment of non pros and a subsequent request for 

relief from such judgment are governed by different tests. See 

Stephens [v. Messick, 799 A.2d 793, 797 (Pa. Super. 2002)].

To dismiss a case for inactivity pursuant to a defendant’s 

motion for non pros there must first be a lack of due 

diligence on the part of the plaintiff in failing to proceed with 

reasonable promptitude. Second, the plaintiff must have no 

compelling reason for the delay. Finally, the delay must 

cause actual prejudice to the defendant. As always, this 

determination is to be made by the trial court, whose 

decision will not be disturbed absent an abuse of discretion.

Jacobs v. Halloran, ... 710 A.2d 1098, 1103 ([Pa.] 1998); see 

James Bros. Lumber v. Union Banking & Trust, ... 247 A.2d 

587, 589 ([Pa.] 1968) (“James-Jacobs” test).

In contrast, a petition to open a judgment of non pros is 

governed by a different standard. Pennsylvania Rule of Civil 

Procedure 2051(c) provides as follows:

Rule 3051[.] Relief from Judgment of Non Pros

[* * *]

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2 Plaintiffs’ Pa.R.A.P. 1925(b) concise statement states, in part, that their 

petition to open “did not allege facts showing they had a meritorious cause of 

action.” Pa.R.A.P. 1925(b) Statement, 1/16/24, ¶ 1(c) (emphasis added). An 

acknowledgement of such failure would defeat Plaintiffs’ claims. However, we, 

like the trial court, are cognizant that the statement of this claim may include 

a typographical error.
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(c) If the relief sought includes the opening of a judgment 

of non pros for inactivity, the petition shall allege facts 

showing that

(1) the petition is timely filed,

(2) there is a meritorious cause of action, and 

(3) the record of the proceedings granting the judgment 

of non pros does not support a finding that the following 

requirements for entry of a judgment of non pros for 

inactivity 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.

Pa.R.C.P. [] 3051(c); Stephens, 799 A.2d at 798. Thus, in 

addition to challenging the court’s application of the JamesJacobs test, a petitioner must also timely file his petition and 

assert a meritorious cause of action. 

Both standards are subject to the same abuse of discretion 

standard of appellate review. ...

Intech Metals, Inc. v. Meyer, Wagner & Jacobs, 153 A.3d 406, 410-11 

(Pa. Super. 2016) (footnote omitted). 

First, Plaintiffs argue Thermo-Twin waived its right to obtain a non pros

judgment because it failed to move for judgment in a timely manner, and its 

conduct showed a willingness to try the case on the merits. Plaintiffs’ Brief at 

17. Plaintiffs claim Thermo-Twin did not object to their praecipe for arbitration

or move to strike the case from the trial court’s arbitration list. Id. at 20. 
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Plaintiffs also assert Thermo-Twin actively participated in the scheduling 

process. Id.

“[A] party’s right to seek a non pros may be waived when he indicates 

through his conduct a willingness to try the case on the merits notwithstanding 

the delay.” DeSiato v. Shahboz, 419 A.2d 798, 800 (Pa. Super. 1980); see 

also Jacobs, 710 A.2d at 1103 (“A party who seeks the equitable relief 

provided by the entry of a judgment of non pros must do so with clean 

hands.”).

Plaintiffs rely on this Court’s decision in DeSiato to support their 

assertion. Therein, the plaintiff (DeSiato) filed a complaint in February 1966

alleging the defendant’s breach of an oral contract, which the parties had 

entered into in June 1960. DeSiato, 419 A.2d at 799. The defendants

responded by filing an answer, new matter, and counterclaim. Id. The case 

“remained dormant” for several years. Id. The parties agreed to submit to 

arbitration and, in February 1975, the arbitration panel awarded a verdict to 

DeSiato. Id. In late February 1975, DeSiato appealed the arbitration verdict 

to the common pleas court. Id. The trial took place in June 1975, “more than 

fourteen years after the cause of action accrued and more than nine years 

after the [c]omplaint had been filed.” Id. The defendants filed a motion for 

compulsory nonsuit at the close of DeSiato’s case, which was denied. Id. at 

800. The defendants later requested the entry of a judgment non pros, nunc 

pro tunc, which the trial court also denied. Id.
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This Court explained,

[t]he rationale behind [a party’s waiver of the right to seek a non 

pros] is that both parties have an obligation to assert their legal 

rights with promptness so that it would be inequitable to grant a 

non pros to a defendant who believed that the plaintiff abandoned 

his action and yet who still manifested an intention to pursue the 

merits of the cause and allowed the plaintiff to incur the expense 

of bringing the case to trial.

Id. The DeSiato Court concluded the defendants had waived their right to 

seek entry of non pros by waiting until the jury trial to request it. Id.; see 

also id. (emphasizing that the defendants “had participated in the pre-trial 

conference, had agreed to have the case submitted to arbitration, had 

participated in an arbitration hearing, had placed the case on a trial list, had 

picked a jury, and had proceeded to trial.”).

Plaintiffs’ reliance on DeSiato is misplaced. Thermo-Twin acknowledges 

its participation in “the brief discovery exchange.” Defendant’s Brief at 6; see 

also id. (indicating Plaintiffs served discovery requests in April 2019, and 

Thermo-Twin served its own discovery requests at approximately the same 

time). However, unlike the defendants in DeSiato, Thermo-Twin did not 

extensively participate in pre-trial proceedings, participate in arbitration, and 

then seek to overturn an unfavorable arbitration award. Thus, we conclude 

Thermo-Twin did not waive its right to seek entry of a judgment of non pros. 

Plaintiffs’ first claim merits no relief.

Plaintiffs’ remaining claims concern whether the trial court improperly 

denied their petition to open the judgment of non pros. In their second claim, 
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Plaintiffs contend their petition to open established a meritorious cause of 

action.3 Plaintiffs’ Brief at 22. Plaintiffs refer to a report prepared by their 

construction expert, which they attached to their petition to open. Id. at 23. 

According to Plaintiffs, the expert “stated his opinion that the windows had to 

be removed and replaced with non-defective windows, defined the appropriate 

repair scope of work, and provided costs for the materials and labor.” Id. 

As this Court has explained,

[t]o show that a cause of action is meritorious, under Rule 

3051(c)(2), facts must be shown to exist which support a cause 

of action. A petition that merely repeats the averments from the 

complaint does not satisfy the meritorious cause of action 

requirement in Rule 3051(c)(2).

Intech Metals, 153 A.3d at 411 (citations and quotation marks omitted).

Instantly, in their petition to open, Plaintiffs include only a brief 

argument that their cause of action is meritorious. Plaintiffs summarily restate

their argument (in less detail than that included in the complaint) that

Thermo-Twin provided defective windows. See Petition to Open, 12/13/23, 

¶¶ 15-19. Plaintiffs attached a report dated December 12, 2023 (claim 

report), which was prepared by David Karotka, a claims adjuster for Castle 

Claims Service. See id., Exhibit B. Mr. Karotka stated his inspection of the 

windows “revealed a lack of flashing on all the windows. The lack of flashing 

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3 We note that Plaintiffs do not specifically address the timeliness of their 

petition to open in their appellate brief. Because Plaintiffs filed their petition 

to open the day after the trial court entered judgment, the first requirement 

of Rule 3051(c) was satisfied.
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makes the windows susceptible to water infiltration....” Id., Exhibit B at 2 

(unnumbered). Mr. Karotka also noted that six of the windows did not close 

and latch completely. Id. The claim report details the work necessary to 

replace the allegedly defective windows and provides an estimated repair cost 

of $18,651.11. Id. 

Though Plaintiffs refer to Mr. Karotka as an expert, they failed to detail 

Mr. Karotka’s qualifications, or explain how the report supports their cause of 

action.4 Plaintiffs failed to support their factual averments with specific facts 

elicited during discovery.5 Because Plaintiffs provided little more than a 

restatement of the factual averments of their complaint, we conclude Plaintiffs 

have failed to show their cause of action is meritorious. See Intech Metals, 

153 A.3d at 411; see also Stephens, 799 A.2d at 800 (concluding the 

appellant did not sufficiently establish she had a meritorious cause of action 

where “[s]he did not aver any specific facts elicited during discovery” or attach 

deposition testimony or expert reports to support her claims). 

As this Court has stated, an appellant’s “failure to show facts to exist 

that would support a meritorious cause of action in their petition to open, 

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4

Indeed, it is not apparent whether the report was prepared in anticipation of 

trial, or whether it was simply intended to provide Plaintiffs an estimate for 

repair work.

5 We observe Plaintiffs point to no discovery efforts. Plaintiffs do not refer to 

any specific documents, depositions, or other facts obtained during discovery. 

See generally Plaintiffs’ Brief at 23 (referencing the averments contained in 

the petition to open, the expert report, “and the other documents”).
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operates as a waiver of the issues concerning the underlying interlocutory 

order.” Intech Metals, 153 A.3d at 412 (citing Stephens, 799 A.2d at 798 

and Pa.R.C.P. 3051(c)(2)). Thus, Plaintiffs’ failure to establish a basis for 

relief on their second claim is dispositive, and we need not separately address 

their final claim (concerning actual prejudice to Thermo-Twin). See Intech 

Metals, 153 A.3d at 412, 414.

Based upon the foregoing, we conclude the trial court did not abuse its 

discretion in denying Plaintiffs’ petition to open the judgment of non pros

entered against them. We therefore affirm the trial court’s order.

Order affirmed.

Judge McLaughlin joins the memorandum.

Judge Kunselman concurs in the result.

8/14/2024
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