PHILADELPHIA –A woman’s negligence-related injury complaint filed against the City of Philadelphia and a pair of property owners that had been transferred to mandatory arbitration has been dismissed after the plaintiff failed to continue pursuing her case.
On June 3, Philadelphia County Court of Common Pleas Judge Lisette Shirdan-Harris entered a judgment of non pros, or one of dismissal where the plaintiff fails to continue their case, due to plaintiff Ambrosina Gutierrez failing to appear at mandatory arbitration and rule hearings in her action.
Gutierrez, of Philadelphia, first filed suit in the Philadelphia County Court of Common Pleas on Feb. 27, 2018 (and an amended complaint on June 6 of last year) against the City of Philadelphia, Alexis E. Agelan and Pablo Negron, also all of Philadelphia.
According to the complaint, Gutierrez was walking on the sidewalk located at and/or bordering 2517 and 2519 North 6th Street, when she said she was suddenly and unexpectedly caused to fall due to dangerous and/or defective conditions which existed of the sidewalk; namely, the sidewalk was broken, uneven and missing in areas, thereby causing plaintiff to sustain a completely torn left rotator cuff.
Gutierrez claimed the accident was caused through the defendants’ failing to inspect, discover and remedy that dangerous condition, failing to warn the public of it, allowing that condition to exist on the premises and creating a nuisance. Moreover, Gutierrez says additional discovery and investigation will show whether she fell on defendant Agelan’s property or on defendant Negron’s property.
On June 25, 2018, defendant Agelan filed preliminary objections to Gutierrez’s complaint, claiming a lack of service of the matter should result in its dismissal. Gutierrez and her counsel responded three weeks later, on July 16, 2018, that the tax records were used to determine the address at which to serve Agelan, and asked the court to overrule Agelan’s objections.
Through an order issued by Philadelphia County Court of Common Pleas Judge Arnold L. New on Aug. 22, 2018, subsequent to a hearing on the same matter of service, the judge overruled Agelan’s objections. Furthermore, New determined the amount in controversy was below the mandatory arbitration limits and was therefore referred to arbitration, pursuant to Pennsylvania Rule of Civil Procedure 1021(d).
However, Gutierrez did not appear at subsequent arbitration and rule hearings, and the judgment of non pros was entered. Prior to dismissal and for a count of negligence, the plaintiff is seeking damages in excess of $50,000.
The plaintiff was represented by Leonard K. Hill of Hill & Associates, in Philadelphia.
The defendants were represented by Brian A. Rice of Villari Brandes & Giannone in West Conshohocken and Matthew L. Fink of the City of Philadelphia’s Law Department, in Philadelphia.
Philadelphia County Court of Common Pleas case 180202693
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com