The URL can be used to link to this page

Home My WebLink About88-0917 ~~~ ~V JAN 19 1995 JOH+dSON, I~UFFIE STEWART AND ~.iEIDNER JAY L. SHUGHART and VELMA SHUGHART, his wife, and SHUGHART'S SALES and SERVICE, INC., Plaintiffs V IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 917 CIVIL 1988 CIVIL ACTION LAW KEYSTONE MASONRY CONTRACTORS, INC.; DAVID KAERCHER and C. JOSEPH BALOTTA Defendants IN RE: DEFENDANTS' PETITION FOR NON PROSEOUITUR BEFORE SHEELY, P.J. ORDER OF COURT ~ ~ ~t AND NOW, this ~_` day of JANUARY, 1995, a judgment of non proseguitur is GRANTED and the above-captioned case is DISMISSED with no costs or interest awarded to the defendants. Thomas R. Miller, Esquire Attorney for Plaintiffs avid J. Lanza, Esquire D vid W. DeLuce, Esquire Attorneys for Defendants By the Court, _ Ceti ~ ~ '~-~ Haro d E. Sheely, P.J. :sld JAY L. SHUGHART and VELMA : SHUGHART, his wife, and : SHUGHART'S SALES and SERVICE, : INC., Plaintiffs : V KEYSTONE MASONRY CONTRACTORS, : INC.; DAVID KAERCHER and C. JOSEPH BALOTTA : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 917 CIVIL 1988 CIVIL ACTION LAW IN RE: DEFENDANTS' PETITION FOR NON PROSEOUITUR BEFORE SHEELY, P.J. OPINION AND ORDER OF COURT In the case captioned above, the defendants ask the court to enter judgment against the plaintiffs for their failure to prosecute this action in due time. Statement of Facts From the record, the following facts of procedural activity exist: On March 28, 1988, plaintiffs filed a complaint against defendants. Defendants filed preliminary objections to the complaint on April 25, 1988. Plaintiffs filed an answer to defendants' preliminary objections on May 31, 1991. On April 29, 1993, plaintiffs filed a praecipe to list this case for argument i on the preliminary objections. Plaintiffs later withdrew this case from the Argument Court list. A petition for non pros was filed by the defendants on May 28, 1993, and on the same day, this court issued a rule upon the plaintiffs to show cause why the petition for non pros should not be granted. On June 8, 1993, plaintiffs filed a response with new matter to defendants' petition for non pros. NO. 917 CIVIL 1988 An amended complaint was filed on June 16, .1993. Preliminary objections to the amended complaint were filed on July 23, 1993. A renewed petition for non pros. was filed by defendants on August 4, 1993. On August 13, 1993, this court issued an order denying judgment or a hearing on non pros., so this court could deal with preliminary objections to the amended complaint. This court issued an order regarding the preliminary objections to the amended complaint on December 5, 1993. A second amended complaint was filed on January 31, 1994. Defendants filed an answer to the second amended complaint adding new matter and a counterclaim on .February 17, 1994. Plaintiffs' reply to defendants' new matter and counterclaim was filed March 10, 1994. This court issued a rule to show cause, on February 24, 1994, as to why the defendants' renewed petition for non pros. should not be granted, with notice of a hearing to be held on such matter or_ March 28, 1994. At the hearing, plaintiffs' counsel offered no testimony to show "good cause" for defendants' failure to actively prosecute this case from March 28, 1988 to May 31, 1991 (over three years) and from May 31, 1991 to April 29, 1993 (nearly two years). 2 NO. 917 CIVIL 1988 Discussion For some unknown reason, it appears this court did not apply its own local rule of procedure, namely Rule 228. INACTIVE CASES NOT AT ISSUE RULE 228. The prothonotary shall list for general call on the last Tuesday of October each year all civil matters which are not at issue, and in. which no proceedings of record have occurred during the two years immediately prior thereto. The Prothonotary shall, in .the manner provided by Pa. R.J.A. 1901(c), notify counsel of record and any parties for whom no appearance has been entered, that the matter has been so listed. If no action is taken and no written objection is filed in a listed matter prior to the time set for the general call, the Prothonotary shall strike the matter from the list, and enter an order as of course dismissing the matter for failure to prosecute. If at the call of the list, no good cause is shown why a matter should be continued, the court shall enter an order dismissing that matter with prejudice. Adopted and effective January 26, 1976; amended November 1, 1978, effective immediately. Cumberland County Rules of Procedure. If Rule 228 had been followed in a timely manner, the result would have been identical to the non pros hearing held on March 28, 1994 - the plaintiffs being given an opportunity to give a compelling reason for a delay of two or more years as indicated by lack of activity on the docket. See: Penn Piping, Inc. v. INA, 529 Pa. 350, 603 A.2d 1006 (1992); Roseman v. 3 NO. 917 CIVIL 1988 Hospital of University of Pennsylvania, 377 Pa.Super. 409, 547 A.2d 751 (1988); Chauffers, Teamsters and Helpers, Local 776 v Moudy/Shughart/Klinger, 113 Dauph. 95 (1993); Gates v. Servicemaster Commercial Service, 112 Dauph. 463 (1993). We only need consider the period of docket inactivity between March 28, 1988 to May 31, 1991 (over two years) to rule on this motion for non pros. In Penn Piping, supra, our Supreme Court held: that in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket. Thus, if there is a lack of due diligence in failing to proceed with reasonable promptitude; if there is no compelling. reason for the delay; and if the delay is for two years or more, the case may be dismissed for lack of activity on the docket. Id. at 356,603 A.2d at 1009. Back to the case at hand, plaintiffs' delay of more than two years is presumed to be prejudicial to the defendants. Plaintiffs have also not offered oral testimony as to any compelling reason for such delay. Plaintiffs' answer to defendants' renewed petition for non pros gives reasons for the delay as "the death of Plaintiffs' original counsel, Defendants' filing of Preliminary Objections which Defendants failed to pursue and Plaintiffs' filing for bankruptcy, among others." (page 3, para.l5) 4 NO. 917 CIVIL 1988 The death of plaintiffs' original counsel cannot, without further explanation, account for over two years of docket inactivity, especially where the deceased counsel belonged to the same law firm as plaintiffs' present counsel. Plaintiffs still had a duty to proceed with their case in a timely fashion, whether or not the defendants listed their preliminary objections of April 25, 1988 for argument. See Penn Piping, supra. Lastly, plaintiffs' filing for bankruptcy is irrelevant in this non pros action as counsel for both parties stipulated, at the hearing held March 28, 1994, that plaintiffs filed for bankruptcy on November 24, 1992. The bankruptcy filing is after the period of delay considered, therefore, such filing carries no weight in this matter. Applying the Penn Piping rule to this case, lack of due diligence and the absence of a reasonable explanation for the delay have been established. Therefore, defendants' petition for judgment of non pros is granted and this case is dismissed with no costs or interest awarded to defendants. { 5 NO. 917 CIVIL 1988 ORDER OF COURT AND NOW, this 1 ~~ day of JANUARY, 1995, a judgment of non prosequitur is GRANTED and the above-captioned case is DISMISSED with no costs or interest awarded to the defendants. By the Court, ls/ Harold E. Sheely Harold E. Sheely, P.J. Thomas R. Miller, Esquire Attorney for Plaintiffs. David J. Lanza, Esquire David W. DeLuce, Esquire Attorneys for Defendants :sld 6