HomeMy WebLinkAbout95-00576
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JERRY E. HINKE and PEGGY L.
HINKE, hueband and wife,
plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
,
,
v.
NO, 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY,:
Defendants. JURY TRIAL DEMANDED
BRIEF OF PLAINTIFFS, JERRY E. RINKE AND PEGGY L. RINKE
IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT OF NON PROS
I. FACTUAL PROCEDURAL HISTORY
This case arises out of an automobile collision which occurred
February 10, 1993.
On February 3, 1995, plaintiffs filed a praecipe for writ of
Summons in the Court of Common Pleas of Cumberland county,
pennsylvania.
Service of the writ was effected upon Defendant Jay Michael
Way on February 23, 1995.
With respect to Defendant Jay R. way, plaintiffs filed a
praecipe to Reissue Writ of Summons on March 3, 1995, as eervice of
the same had not been effected on Defendant Jay R. Way within
thirty days after February 3, 1995. subsequently, on April 18,
1995, Sheriff's Returns were filed; one confirming service of the
Writ upon Defendant Jay Michael Way by the Sheriff of Cumberland
county on February 23, 1995; the second confirming eervice of the
writ upon Defendant Jay R. Way on March 31, 1995. (See Exhibit "A"
attached to Defendants' Motion).
Defendants, through their counsel, neither communicated
telephonically nor in writing with plaintiffs' counsel until
Defendants' counsel's letter dated January 23, 1998 was received by
Plaintiffe' counsel on January 27, 1998, comprised of a copy of a
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transmittal letter sent by him to curtis R. Long, prothonotary,
Cumberland County, enclosing for filing an original and copy of
Motion of Defendants for Judgment of Non Pros with proposed Order,
together with a copy of Defendants' Motion and Brief.
At no time prior to receipt of the aforementioned letter and
documents on January 27, 1998, had Plaintiffs' counsel received any
communication whatsoever from Defendants' counsel nor had
Plaintiffs' counsel received a document which advieed of the entry
of appearance by Defendants' counsel, or any other communication or
copy of filed pleading whatsoever. (See Exhibit "A" attached to
Defendants' Motion),
On February 17, 1998, P1aintiffe filed with both the
prothonotary and Court Administrator's Office their Response to
Defendants' Motion which had attached thereto and incorporated
therein Exhibit "A", comprised of a thirteen page, two Count
Complaint, signed for purposes of verification thereof by both
Plaintiff Jerry E. Hinke and Plaintiff Peggy L. Hinke, husband and
wife, which Complaint avers, inter alia: illegal and negligent
conduct by Defendants; a motor vehicle collision which resulted
from such conduct as the sole, proximate and exclusive result
.,
thereof; the multiple, eerious and permanent injuries sustained by
each Plaintiff and the respective claime by each for relief, such
complaint this setting forth meritorious causes of action on behalf
of both Plaintiffs.
said Complaint was prepared for immediate filing and service.
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Subsequent to defense counsel's oral withdrawal of Defendants'
initial Motion for Judgment of Non Pros at Argument Court on April
15, 1998, plaintiffs filed their complaint against Defendants that
very day and served the sarne upon defense counsel by certified
mail, return receipt requested.
By Order of this Honorable Court dated April 17, 1998, leave
was granted to Defendants to withdraw their initial Motion for Non
Pros without prejudice and to refile it within thirty (30) days, in
light of the recent decisions of the pennsylvania supreme Court in
Jacobs v. Halloran, 18 E.D. 1997, Marino v. Hackman, 193 M.D. 1996,
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and Shope v. Eaale, 119 M,D. 1997.
On May 18, 199B, Defendants mailed to the prothonotary of
Cumberland county for filing a revised Motion for Judgment of Non
Pros together with a praecipe to withdraw their former (initial)
Motion filed on or about January 23, 1998, and Brief in support of
such revised motion.
subsequent to the date of the within collision on February 10,
1993, and continuing through the present, plaintiff Peggy L. Hinke
required extensive medical care and ongoing treatment for the
multiple injuries sustained, set forth in detail both in Paragraph
15 of plaintiffs' Response to Defendants' Motion, incorporated
herein by reference, and paragraph 23 of plaintiffs' Complaint,
attached to plaintiffs' Response to Defendants' Motion ae Exhibit
"A", incorporated herein by reference. with regard to the injuries
sustained by plaintiff husband Jerry E. Hinke, see Paragraph 15 of
Plaintiffs' complaint (Exhibit "A" attached to plaintiffs' Response
.,
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to Defendants' Motion), incorporated herein by reference.
Plaintiffs' medical progress was monitored, inasmuch as
treatment remained ongoing, and with regard to plaintiff peggy L,
Hinke, treatment continues on an as-needed basis through this date.
since the date of the collision and continuing thereafter
through the date on which plaintiffs commenced the instant action
and on through follow-up medical care and treatment, plaintiffs
have proceeded in their case and have obtained information, medical
reports, and medical records not ordinarily the subject of docket
activity, in the form of medical records, medical reports and other
related data and information.
Furthermore, the criminal history relating to the several
charges prosecuted by the District Attorney of Cumberland County,
Pennsylvania against Defendant operator Jay Michael Way as a result
of the collision was both followed with the District Attorney's
Office from which copies of the Affidavits and sentencing were
secured, all of which facts form the basis for the conclusion of
absolute liability on the part of Defendants in causing the instant
motor vehicle collision as a result of Defendant Jay Michael Way's
having plead guilty to the charges of:
(a) Driving Under the Influence;
(b) Unlawful possession of Drug paraphernalia;
(c) Accidents Involving Death or Personal Injury
(Leaving Scene of Accident); and
(d) Driving Under suspension;
and sentencing for all of the foregoing - criminal Docket - No. 311
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criminal 1993 (Cumberland County).
Plaintiffe have, throughout the history of this caee,
proceeded with due diligence in that they have undertaken to secure
all medical records, medical reports, and relevant criminal history
relating to Defendant Jay Michael Way and further, plaintiffs have
engaged in various discussions with various claims representatives
of Defendants' underlying insurance carrier, now apparently
insolvent.
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Plaintiffs at no time were advieed in writing by Defendants,
Defendants' counsel, or Defendants' insurance carrier, that their
underlying insurance carrier was insolvent nor were Plaintiffs ever
advised counsel had been retained, or that any motions were to be
filed by, for or on behalf of Defendants seeking to terminate the
instant case, particularly inasmuch as Defendants' insurer has
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apparently become insolvent.
This Brief is filed in support of Plaintiffs' Response to
Defendants' Motion and in support of Plaintiffs' request that this
Honorable Court deny Defendants' Motion and that it direct
Plaintiffs to promptly file their Complaint, effect service
thereof, and that Defendants thereafter make timely Answer thereto.
II. STATEMENT OF OUESTION INVOLVED
Whether Plaintiffe' cause of action ehould be permitted
to proceed and Defendants' Motion denied where Plaintiffs
have proceeded in a diligent manner, shown reason for
delay in filing their complaint, and where there has been
no actual prejudice suffered by Defendants?
suggested Answer: Affirmative.
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I II, ARGUMENT
Defendants' counsel seeks to ambush Plaintiffs - a concept
repugnant to the principles of the Pennsylvania Supreme Court, to
the Pennsylvania Rules of Civil Procedure, and to general
principles of equity and fundamental fairness.
Without ever having previously communicated with Plaintiffs'
counsel by telephone or in writing, and without even previously
filing a praecipe for Entry of Appearance, which actions in and of
themselves would have provided eome alert to Plaintiffs, defense
counsel filed an initial Motion for Judgment of Non Pros on or
about January 26, 1988, with a mailed copy of the same having been
received by Plaintiffs' counsel January 27, 1998.
On February 17, 1998, plaintiffs filed their Response to
Defendants' Motion and incorporated therein by reference Exhibit
"A" attached thereto, comprieed of a thirteen (13) page, two Count
Complaint, signed and verified by Plaintiffs, setting forth the
meritorious cause of action on behalf of plaintiffs against
Defendants for the collision which occurred February 10, 1993 as a
direct, sole, proximate, and exclusive result of the illegal
conduct and negligence of Defendants.
Defendants claimed initially that Plaintiffs' case should be
dismissed and cited as authority therefore Penn piping. Inc. v.
Insurance Co, of North America, 529 Pa. 350, 603 A.2d 1006 (1992).
That case, which involved various lapses in docketing of any
activity of up to six years, holds:
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". .. in cases involving a delay for a period of two years
or more, the delay will be presumed prejudicial for
purpoees 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 diemissed for lack of activity on the
docket, "
Footnote number 2 in Penn pipinq, supra., further modifies the oft
quoted "three prong test" as follows:
2. Examples of situations in which there will be a per
se determination that there is a compelling reason for
the delay, thus, defeating dismissal, are cases where the
delaying party establishes that the delay was caused by
bankruptcy, liquidation, or other operation of law, or in
cases awaiting significant developments in the law.
There may. of course. be other compellina reasone which
will be determined on a case-by-case basis." (Emphasis
added)
603 A,2d, at page 1009.
The above-referenced Footnote 2 set forth in penn Piping,
supra, was adopted and set forth in full, not in footnote form, in
another case decided by the Pennsylvania Supreme Court during the
very same term of court, Streidl v. community General Hospital, 529
Pa. 360, 603 A.2d 101 (1992), thereby emphasizing the trial court's
ability to make determinations on a case-by-case basis.
More recently, in Chase v. National Fuel Gas corporation,
Pa. Super.
692 A,2d (1997), the Superior Court, upon
emphasising the equitable discretion of the trial court in
determining whether or not to enter a judgment of non pros, held as
follows:
"The question of whether to enter a judgment of non pros
for a Plaintiff's failure to prosecute an action within
a reasonable time reste within the sound discretion of
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the trial court and will not be disturbed absent an abuse
of that discretion."
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692 A.2d, at page 156,
Although the last docket activity prior to Defendants having
filed their Motion was April 18, 1995, the Defendants have neither
plead nor demonstrated any actual prejudice resulting to them or
restricting their ability to present a factual defense, if any
exists, at least insofar as the issues of negligence and fault are
concerned.
In thie regard, it is important to consider the
Cumberland County Criminal Docket at Number 311 criminal 1993,
wherein Defendant operator Jay Michael Way plead guilty to the
several charges of: (a) Driving Under the Influence, (b) Unlawful
possession of Drug Paraphernalia, (c) Accidents Involving Death or
Personal Injury (Leaving Scene of Accident), and (d) Driving Under
suspension.
Further, the operative facts of the instant collision set
forth in Paragraphs 6 through and includirlg 13 of plaintiffs'
complaint, verified and attached as Exhibit "A" to plaintiffs'.
Response to Defendants' Motion, incorporated herein by reference,
taken in conjunction with the clear criminal conduct by Defendant
Jay Michael Way, eliminate any possible prejudice as to Defendants
inasmuch as the guilty pleas are tantamount to admissione of
liability in the inetant civil action.
In matter of fact, in prior discussions with claims
representatives for Defendants' direct liability insurer (Quaker
City), after discussing the offensive, criminal and negligent
conduct of Defendant operator Jay Michael Way in causing the
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instant collision it was suggested by the claims adjuster that
negligence and causation would be admitted and stipulated in the
event of trial to avoid such testimony, with the case to proceed on
the issue of damages. Thus, any personal presence of Defendants,
if they were not locatable, would be harmless to the defense of the
action as the case would proceed on issue of damages only, issues
to which the Defendants themselves would have no knowledge or
relevant input to the case.
Furthermore, and with respect to the claims by both Plaintiffs
for injuries sustained and the residuals thereof, the injuries
which were, in fact, sustained, as set forth in detail in
Paragraphs 15 and 23 of Plaintiffs' Verified Complaint, attached as
Exhibit "A" to their Response to Defendants' Motion, incorporated
herein by reference, are factual recitations of the injuries
sustained which are supported by medical records, medical reports,
and hospital and therapeutic records, all of which rely in no part
whateoever upon the recollection of any witnesses which may (or may
not) be produced by Defendant at trial. ThUS, Defendants can claim
no prejudice whatsoever resulting to them by reason of calendar
datee involved in the instant proceeding or by reason of the
supposed present inability of defense counsel to contact
Defendants.
Several of the cases cited as authority by Defendants in their
Brief are cases in which judgments of non-pros had been entered and
subsequent proceedings followed which resulted from actions taken
to open eaid judgments.
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In the instant matter, Defendante have merely filed a Motion
to eeek entry of a judgment non pros, a proceeding falling squarely
within the equitable and discretionary powers of the court, ~
v. Noskar Lumber. Inc" 443 Pa. super. 483, 662 A.2d 660 (1995);
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chase v. National Fuel Gas corporation
supra; Streidl v.
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community General Hospital, supra; Blackburn v. Sharlock, 433 pa.
super, 581, 641 A.2d 612 (1994),
And with respect to this court's ability and power to deny
Defendants' Motion for Judgment of Non Pros,
" . .. a determination as to whether a judgment of non pros
should be entered due to the failure of the plaintiff to
prosecute, is a matter which rests within the sound
discretion of a trial court, Blackburn v. Sharlock,
supra. Absent a manifest abuse of that discretion, the
Court's ruling will not be disturbed."
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Aimee's Touch. Inc, V. Kramer, 441 Pa. super, 415, 657 A.2d 992,
Three recent opinions by the pennsylvania Supreme Court
overruled and discarded the prior two year presumption of prejudice
993 (1995).
enunciated in penn-Piping. Inc. v. Insurance Co. of North America,
529 Pa. 350, 603 A2d 1006 (1992). Penn-Pieing had applied the test
for entry of a judgment of non pros which included the following
criterion: (a) where there is a lack of due diligence in failing
to proceed with reasonable promptitude; (b) where there is no
compelling reason for the delay; and (c) if the delay has caused
some prejudice to the adverse party, then, the Plaintiffs' action
may be dismissed and judgment of non pros entered.
penn-Piping, went one giant step further and held that a delay
for a period of two years or more could be presumed to be
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prejudicial for purposes of any proceeding to diemiss for lack of
activity on the docket. Penn-Piping, Id., at page 1009; Streidl v,
Community General Hoepitel, supra., at page 1011.
The three recent opinions by the Pennsylvania supreme Court
which discarded the two year presumption of prejudice from Penn-
Piping, supra" all decided April 2, 1998, include Marino v,
Hackman. et al., No. 193-1996, Slip Op. (M.D, Pa. - April 2, 1998),
Jacobs v, Halloran. et al., No. 18-1997, Slip op. (E.D. Pa, - April
2, 1998), and Shope v. Eagle. et a1., No, 119 - 1997, slip Op,
(M.D. Pa. - April 2, 1998), a copy of each attached to Plaintiffs'
Response to Defendants' Motion, incorporated herein by reference.
In Marino, the Court held:
"Although the docket provides an empirical easily
verifiable criterion to trigger review of a case,
it is too crude a mechanism to distinguish truly
inactive, stale cases from active ones where
activity ie not reflected on the docket. Dismissal
of a case is far too harsh a result when the case
is not actually stale but was moving slowly forward
(slip op. at page 6)."
In Jacobs, the Court held:
"The effect of our decision today ie to return to
the three part test of James Brothers. 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
reaeon for the delay. Finally, the delay must
cause actual prejudice to the defendant. (Emphasis
in the original). (Slip op. at page 9).
The Court in Jacobs went on:
"As always, this determination is to be made by the
trial court, whose decision will not be disturbed
absent an abuse of discretion. (Slip op. at page
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with respect to the three-pronged test previously set forth in
~ames Bros. Co. v. union Banking and Trust company of DU Bois, 432
Pa. 129, 247 A2d SB7 (196B), reiterated, restated and re-adopted in
.Jacobs, supra" as the standard to which the Court is returning the
first two issues regarding lack of due diligence on the part of the
plaintiff and failing to proceed with reasonable promptitude and no
compelling reaeon for the delay have previously been addressed and
explained in the instant brief, The slow forward progrees of the
case and the comprehensive securing and collection of non-docket
related matters have been addressed both in plaintiffs' Response to
Defendants' Motion and previously in this Brief. The third area of
inquiry, as to whether or not the delay caused ~ctual prejudice to
the Defendant remains the sticking point anticipated to be argued
by Defendants.
Although Defendants' counsel each attached an Affidavit to the
Motion, the point not addressed by Defendants is what happened to
communication between and among the Defendants, the underlying
insurer, and present defense counsel, from and after the date on
which the writs of Summons were served upon each Defendant, The
underlying insurer's investigation of the claim as confirmed by
reason of prior telephone conversations between plaintiffs' couneel
and claims representatives/adjusters on behalf of Quaker city
Insurance company, clearly had a grasp of the facts involved in the
instant collision at the time of their conversations with the
undersigned, such carrier had a continuing duty and obligation as
the defense insurer to remain in contact with its insured until
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these matters were concluded.
Thus, Defendants do not come before this court with the "clean
hands" required of them in accordance with Jacobs, supra ., wherein
the court held:
"A party who seeks the equitable relief provided by
the entry of a judgment of non pros must do so with
clean hands. Mudd v. Nosker Lumber. Inc., 443 Pa.
super. 483, 662 A2d 660 (1995). (Slip Op. at page
10).
Further, defense counsels' Affidavits state merely that a
letter was sent to each Defendant but that contact was not
confirmed. No specific information is provided with regard to any
further attempts beyond the mere mailing of a letter to attempt to
contact either Defendant.
As set forth in Plaintiffs' Response to Defendants' Motion, a
more recent address has been determined for Defendant operator Jay
Michael Way.
Nonetheless, and as set forth hereinbefore, prior claims
adjusters on behalf of the underlying insurer (Quaker city) have
stated to the undereigned that due to the nature of the collision
and clear fault on behalf of Defendant operator Jay Michael Way the
issue of negligence would be stipulated at any trial, if the claim
were not settled, and that any trial would involve only the issue
of damages. Thus, the presence or absence of Defendants and any
facts they may know with regard to the actual issues to be tried
are de minimis at best.
Thus, the three recent cases decided by the pennsylvania
supreme Court (Marino, Jacobs, and Shope) require that actual
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p,ejudice be ,bcon in conjunction with the th,ee-p,onged te,t of
~mes Brotheru, supra" and Defendant has failed to demonstrate any
actual presence even in the event that after a diligent search
neither Defendant is located,
Given the trial court's discretion and equitable principles to
e~ercise such discretion, including therein the balancing of the
rights of Plaintiffs to pursue their civil cause of action against
Defendants for those compensatory damages to which they are
entitled as a result of Defendants' criminal and civil negligence
and the injuries and damages plaintiffs sustained, the grant of
Defendant's motion would cause a far greater "prejudice", in the
theoretical sense to Plaintiffs, than any which may be
"manufactured" on the part of Defendants.
Plaintiffs have plead in their verified complaint, attached as
E~hibit "A" to their Response to Defendants' Motion, a meritorious
cause of action and have as well demonstrated responses to the
three-pronged test of ,;JAmes Brotheru, supra., and thUS, have
demonstrated their entitlement to proceed as plaintiffS in the
instant case.
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IV. CONCLUSION
For the reasons stated above, Plaintiffs Jerry E. Hinke and
Peggy L. Hinke pray this Honorable Court to enter an Order to deny
Defendants' Motion for Judgment Non Pros and to direct Plaintiffs
to file their Complaint within ten (10) days of such Order.
Respectfully sUbmitted,
(\(. { i "
Mark~lver, Esquire
LAW OFFICES OF JOSEPH A. KLEIN, P.C.
100 Chestnut Street, Suite 210
P.O. Box 1152
Harrisburg, PA 17108
Phone (717) 233-0132
Attorney for Plaintiffs
htnke,brf
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CERTIFICATE OF SERVICE
I, MARK S. SILVER, ESQUIRE, of the law firm of JOSEPH A.
KLEIN, P.c" attorneys for Plaintiffs, do hereby certify that on
this date I served the foregoing BRIEF OF PLAINTIFFS JERRY E. HINKE
AND PEGGY L, HINKE IN OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT
OF NON PROS by hand delivery of a true and correct copy of same to
counsel for the Defendants as follows:
Michael M. Badowski, Esquire
Reynolds & Havas
101 pine Street
Post Office Box 932
Harrisburg, PA 1710a-0932
LAW OFFI
OF JOSEPH A. KLEIN, P.C.
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By:
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Ma k s. Esqu re
1.D. No. 09825
100 Chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for Plaintiff
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Date: June 22, 1998
16
@/JUN 2 a 1998
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JERRY E. HINKE and PEGGY L.
HINKE, husband and wife,
plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY,:.
Defendants JURY TRIAL DEMANDED
o R D E R
consideration of the Motion of Defendants and the plaintiffs'
AND NOW, this
day of
, 199B, upon
Response thereto, it is hereby ORDERED and DECREED that the
Defendants' Motion is DENIED and plaintiffs are directed to file
their complaint.
BY THE COURT:
J..-
(j JUN 2 :i 1998
~
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-576 CIVIL TERM
JERRY E. HINKE and PEGGY L,
HINKE, hueband and wife,
plaintiffs
JAY R. WAY and JAY MICHAEL WAY,:
Defendants JURY TRIAL DEMANDED
AND NOW, this
o R D E R
day of
, 199B, upon
consideration of the Motion of Defendants and the plaintiffs'
Response thereto, it is hereby ORDERED and DECREED that the
Defendants' Motion is DENIED and plaintiffs are directed to file
their complaint.
BY THE COURT:
J.
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MAY 1 8 1998 ~
COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and
PEGGY L, HINKE,
Plaintiffs
No. 95-576 Civil Term
.
v.
CIVIL ACTION - LAW
JAY R. WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
BRIEF OF DEFENDANTS, JAY R. WAY and
JAY MICHAEL WAY, IN SUPPORT OF
MOTION FOR JUDGMENT OF NON PROS
I. Factual Procedural History
This case arises out of a motor vehicle accident which
occurred on or about February 10, 1993. On or about February 3,
1995, Plaintiffs, Jerry E. Hinke and Peggy L. Hinke ("Plaintiffs"),
filed a Praecipe for Writ of Summons at the above referenced docket
number. On March 3, 1995, Plaintiffs filed a Praecipe to Reissue
the Writ of Summons. On March 27, 1995, Plaintiffs again filed a
Praecipe to Reissue the Writ of Summons, On April 18, 1995, a
Sheriff's Return was filed in this case indicating that Defendants
had been served,
From the filing of the Sheriff's Return on April 18,
1995, through the time of filing of Defendants' Motion for Judgment
of Non Pros, there was no docket activity in this case. ~
Exhibit A attached to Defendants' Motion for Judgment non pros.
Nor was there any indication of activity off of the docket, such as
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formal discovery or depositions, plaintiffs had failed to pursue
their case diligently for a period of more than two years and ten
months, which haS severely prejudiced the defense in this case,
Accordingly, Defendants filed a Motion for Judgment of non pros,
This Brief is now filed in support of Defendants' Motion for
Judgment of non pros.
II. sta.tement of the Question Tnvolved
Whether plaintiffs' action should be dismissed
and a judgment of non pros entered where
plaintiffS have exhibited a lack of due
diligence in failing to proceed; shown no
compelling reason for the delay; and where
there is actual prejudice to Defendants as a
result of the delay?
[suggested answer in the affirmative}
III. Discussion
plaintiffS' action should be dismissed and a
judgment of non pros entered where Plaintiffs
have exhibited a lack of due diligence in
failing to proceed; shown no compelling reason
for the delay; and where there is actual
prejudice to Defendants as a result of the
delay.
It is established pennsylvania law that it is a
plaintiff's burden to ensure that a legal action which he has
initiated proceeds in a prompt fashion. Aimee's Touch. 1nc. v.
~ramer, 441 pa.Super. 415, 657 A.2d 992 (1995); Mudd v. Nosker
Lumber. TncL, 443 pa.Super. 483, 662 A.2d 660 (1992). A plaintiff
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has an affirmative duty to prosecute his or her action within a
reasonable amount of time. Dortch v. DiBacco, 440 Pa.Super, 581,
656 A.2d 522 (1995).
Recently, a trilogy of opinions by the Pennsylvania
Supreme Court discarded the two year presumption of prejudice first
enunciated in Penn pipina. Inc. v. Insurance Co. of North America,
529 Pa. 350, 603 A,2d 1006 (1992). Penn Piping had applied the
established test for entry of a judgment of non pros that where
there is a lack of due diligence in failing to proceed with
reasonable promptitude, where there is no compelling reason for the
delay, and if the delay has caused some prejudice to the adverse
party, the plaintiff'S action may be dismissed and a judgment of
non pros entered, ~ Penn piping, 603 A.2d 1006. However, the
Penn piping court had gone one step further and had found that a
delay for a period of two years or more could be presumed to be
prejudicial for purposes of any proceeding to dismiss for lack of
activity on the docket. ~ Penn piping, 603 A.2d at 1009; streidl
v. Community General Hospital, 529 Pa, 360, 306 A,2d 1011 (1992);
Dorich v. DiBacco, 440 Pa. Super. 581, 656 A.2d 522 (1995). After
a presumption of prejudice had attached due to a two year period of
docket delay, the plaintiff was unable to rebut the presumption by
demonstrating defendant suffered no actual prejudice from the
delay. ~ state of the Art Medical Products. Inc. v. Aries
Medical. Inc., ___ Pa. Super. ___, 689 A.2d 957 (1997).
~ 3 -
"
In the cases of Marino v. Hackman, No. 193-1996, Slip Op.
(M,D. Pa. April 2, 199B), Jacobs v. Halloran, No. 1B-1997, Slip Op.
(E.D, Pa. April 2, 199B), and Shope v. Eagle, No. 119-1997, Slip
Op. (M.D. Pa. April 2, 199B), the Pennsylvania Supreme Court
eliminated the presumption of prejudice that previously arose after
a two year period of docket inactivity. Copies of these cases ,are
attached to Defendants' Motion for Judgment Non Pros. In these
recent cases, the Pennsylvania Supreme Court returned to the test
found in James Bros. Co. v. Union Banking and Trust Co. of DuBois,
432 Pa. 129, 247 A.2d 5B7 (196B) and held that to dismiss a case
for inactivity pursuant to a defendant's motion for non pros, there
must be: (1) a lack of due diligence on the part of the plaintiff
in failing to proceed with reasonable promptitude; (2) the
plaintiff must have no compelling reason for the delay; and (3) the
delay must cause actual prejudice to the defendant. Therefore, the
significant change in the law is that a moving party must now
demonstrate actual prejudice in order to prevail and there is no
automatic presumption of prejudice.
A review of the instant case shows that the first element
for the entry of judgment non pros is fulfilled. There was no
docket activity from April 1B, 1995, until Defendants filed a
Motion for Judgment of non pros on January 27, 1998. ~ Exhibit A
attached to Defendant's Motion for Judgment of non pros,
Therefore, for a significant period of time, Plaintiffs had only
filed a Writ of Summons in this case. No Complaint was filed
- 4 -
during this time period that provided Defendants with notice of the
allegations against them, Nor was there any indication of activity
off of the docket. No formal discovery was served, no depositions
were held and no settlement discussions were conducted.
For a
period of almost three years, this case was not advanced in any
manner. Therefore, Plaintiffs have demonstrated a lack of due
diligence in failing to proceed with reasonable promptitude.
The second prong of the test for entry of non pros is
that a plaintiff has no compelling reason for the delay.
Plaintiffs have shown no compelling reason for the delay in this
case. "Compelling reason" has been interpreted by Penn Pipinq and
its progeny to include reasons such as bankruptcy, liquidation, or
other operation of law. Penn Pipin~, 603 A.2d at 1009. No such
compelling reason is present in this case.
It is expected that counsel for Plaintiffs will argue
that Plaintiff's injuries were continuing and not resolved, causing
some delay. It should be noted that difficulty in obtaining a
diagnosis and/or prognosis of injuries, even if true, does not
explain or excuse total inactivity. strinqer v. Kaytes, 318 Pa.
Super. 393, 465 A.2d 11 (1983), It is also anticipated that
counsel for Plaintiffs will assert that this is a clear case of
liability against Defendants, This position undermines any alleged
justification for delay. If the case is so strong, why wasn't a
complaint filed three years ago?
- 5 -
, ' , . .
-- , - . . ',' , ~ . .
,
The final requirement for an entry of judgment non prOB
is actual prejudice to the moving party, The determination of
whether actual prejudice has occurred is to be made by the trial
court. See Jacobs, Slip Op. at page 10. Prejudice has been
defined as "any substantial dimunition of a party's ability to
properly present its case at trial." Jacobs, Slip op. at page 10,
g110ting Metz contracting. Inc. v. Riverwood Builders Inc'l 360 Pa.
super. 445, 451, 520 A.2d 891 (1987), This type of prejUdice can
be based on any substantial dimunition of Defendants' ability to
present factual information in the event of trial. Kennedy v.
Bulletin co., 237 Pa. Super. 66, 346 A.2d 343 (1975). It is not
limited to death or absence of a material witness. Carroll v.
Kimmel, 362 Pa. Super. 432, 524 A.2d 954 (19B7).
In this case, the delay has caused significant actual
prejudice. For three years, nothing happened in this case, At this
point, counsel for Defendants are unable to even locate the
Defendants to inform them of the case status and to discuss
litigation strategy. See Exhibit F to Defendants' Motion,
Additionally, Defendants' insurance company became
insolvent during the period of plaintiffs' delay, resulting in the
case being handled by the Pennsylvania Property and Casualty
Insurance Guaranty Association, Consequently, counsel for
Defendants will have to investigate for the first time an incident
which occurred three years 890. This will significantly prejudice
Defendants in their ability to locate and question witnesses, whose
- 6 -
recollections may have faded over the years, to gather any
pertinent documentation and to prepare a defense. Accordingly, the
third requirement for the entry of a judgment of non pros against
Plaintiffs has been met.
IV. Conclusion
For the reasons stated above and in light of the
precedent cited in support thereof, Defendants, Jay R. Way and Jay
Michael Way, pray this Honorable Court enter an Order granting
Defendants' Motion for Judgment non pros.
REYNOLDS & HAVAS
A Professional Corporation
.,
Date : sf '2..->1 ~CC.) By:
,\
Michele J. Thorp
Attorney I.D. 71117
101 Pine Street
Harrisburg, PA 17108-0932
(717) 236-3200
Counsel for Defendants,
Jay R. Way and Jay Michael Way
- 7 -
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct
copy of the foregoing document on all counsel of record by placing
the same in the united states Mail at Harrisburg, Pennsylvania,
first-class postage prepaid, on the /!-d day of May, 1998,
addressed as follows:
Mark S, Silver, Esquire
Law Offices of Joseph A. Klein
100 Chestnut street, suite 210
Post Office Box 1152
Harrisburg, pennsylvania 17108-11152
(Counsel for Plaintiffs)
REYNOLDS & HAVAS
A Professional corporation
By:
- 8 -
119
JERRY E, HINKE AND IN THE COURT OF COMMON PLEAS OF
PEGGY L. HINKE CUMBERLAND COUNTY, PENNSYLVANIA
V. I
I
JAY R. WAY & JAY MICHAEL WAY NO, 95-0576 CIVIL TERM
IN REI ARGUMENT COURT
BEFORE HOFFER. P.J., OLER. J., GUIDO, J.
AND NOW, this
ORDER OF COURT
17ft\.
day of APRIL, 1998, in view of
the recent decisions of the Pennsylvania Supreme Court in Jacobs
v. Halloran, 18 E,D. 1997, and Marino v. Hackman, 193 M.D. 1996,
and Shope v. EaQ1e, 119 M.D. 1997, Defendants have requested
leave to withdraw their Motion for Non Pros and refile it to
conform with the requirements as set forth in those cases,
Plaintiff's objection to this request is noted. Nevertheless, it
is ordered and directed that Defendant is granted leave to
withdraw the current Motion For Non Pros without prejudice and to
refile it within thirty (30) days,
By the
Edward E, Guido, J,
Mark S. Silver, Esquire
For the Plaintiff
~~l..oQ) (l~\'d..Cr,l
of I~o I '1 S '
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-
Michael M. Badowski, Esquire
Michele J. Thorp, Esquire
For the Defendants
lsld
"~ ,;...,
/Ir'
PRAECIPE FOR LISTING CASE FOR ARGU~IENT
(Must be typewrlllcn and ~ubmlltcd In dupllc:llc)
TO THE PROTHONOTARY IOF CUMBERLAND COUNTY:
Ple:ue llitthe within mailer for the next:
o Pre.Trl31 Argument Court
[1gc Argument COUrt
----------------------------------------------------------------------
CAPTION OF CASE
(entlle ~aptlon mUll be ltated In fUll)
JERRY E. HINKE and
PEGGY L. HINKE,
(plaintiff)
VI.
JAY R. WAY and
JAY MICHAEL WAY,
(Defendant)
vs.
'No. 95-576 Civil Action - Law 1922....
1. Slate matter to be arGued (I. e" plalnllfrs motion for new trial,
defendant's demurrer to ~ompI3Int. et~.): Defendants' Motionfor
Judgment of Non Pros
2. Identify counsel who will arGue ~:ue:
(a) for plalnllff:
(b) for defendant:
Mark S. Silver, ,Esquire
Michael M. Badowski, ,Esquire
Michele J. Thorp, Esquire
3. I wll! nollf)' all parties In writing within t\Vo da)'lthatthls case hos b~~n
lilted for argument._
Michele J. Thorp, Atty 671117
Reynolds & Havas -- 717-236-3200
Post Office Box 932
J~rrisburg, PA 17108-0932
Dlled: .:r: l:f 'f t
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CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct
copy of the foregoing document on all counsel of record by placing
the same in the United States Mail at Harrisburg, Pennsylvania,
first-class postage prepaid, on the ~day of May, 1998,
addressed as follows:
Mark s. silver, Esquire
Law Offices of Joseph A, Klein
100 Chestnut street, suite 210
Post Office Box 1152
Harrisburg, Pennsylvania 17108-11152
(Counsel for Plaintiffs)
REYNOLDS & HAVAS
A Professional corporation
By:
I:t~ ILikf ~~
a on Dell-Ga lag er,
Secretary
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COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and
PEGGY L. HINKE,
plaintiffS
. No, 95-576 civil Term
v.
CIVIL ACTION - LAW
JAY R. WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
ORnER
AND NOW, this
day of
, 1998, upon
consideration of the Motion of Defendants for judgment non pros, it
is hereby ORDERED and DECREED that Defendants' Motion is GRANTED.
BY THE COURT:
, J.
'. : _ __:~__h' 'r
FiLm-QFFICE
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REYNOLDS & HAVAS
A P..o.....'ONAL CO".-o"ATION
ATTO"'NIY8 AND CDUN&ILOAa AT LAw
1 01 PINI STRIIT
P,O, Box 932
HARRISBURG, PINN8YL,VANIA 17108.0932
TaL.PHONII
17171,23003200
"
-..
.
.
COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and
PEGGY L. HINKE,
Plaintiffs
: No. 95-576 Civil Term
.
.
v.
CIVIL ACTION - LAW
.
,
JAY R. WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
MOTION OF DEFENDANTS,
JAY R. WAY and JAY MICHAEL WAY,
FOR JUDGMENT OF NON PROS
1. This case arises out of a motor vehicle accident
which occurred on or about February 10, 1993.
2. On or about February 3, 1995, Plaintiffs, Jerry E,
Hinke and Peggy L. Hinke ("Plaintiffs"), filed a Praecipe for writ
of Summons against Defendants, Jay R. Way and Jay Michael Way
("Defendants") .
3. Thereafter, Plaintiffs filed Praecipes to reissue
the Writ of Summons on March 3, 1995, and March 27, 1995.
4. On April 18, 1995, the Sheriff's return was filed in
this matter indicating service upon Defendants.
5. From April 18, 1995, until Defendants filed a Motion
for Judgment of Non Pros on January 27, 1998, there was no
substantive docket activity in this case, A certified copy of the
docket entries in this case is attached hereto, incorporated herein
by reference and marked as Exhibit "A",
6. During this two year and ten month period, no
complaint was filed.
7. Moreover, there is no indication that any effort was
made by Plaintiffs to pursue this case in any manner. No formal
discovery was conducted and no depositions were taken.
8. Also, Quaker city Insurance Company, the insurance
company for Defendants, became insolvent during this lengthy period
of inactivity, Thereafter, the pennsylvania Property and Casualty
Insurance Guaranty Association assumed control of the file and
assigned this case to counsel for Defendants.
9. On January 27, 1998, Defendants filed a Motion for
Judgment Non Pros and a supporting Brief, Thereafter, Defendants
filed a praecipe for argument,
10. Plaintiffs filed an Answer to Defendants' Motion and
Brief in opposition to Defendants' Motion.
11, Prior to the scheduled argument court, the
Pennsylvania Supreme Court issued the opinions of Marino v.
Hackman, No. 193-1996, Slip Op. (M.D. Pa. April 2, 1998), Jacobs v.
Halloran, No. 18-1997, Slip Op. (E.D, Pa. April 2, 1998, and Shope
v. Eagle, No. 119-1997, Slip Op. (M.D. Pa. April 2, 1998). These
cases discarded the presumption of prejudice after two years of
docket inactivity, as enunciated in Penn Piping. Inc. v. Insurance
Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992). The
- 2 -
.
pennsylvania supreme court returned to the test found in .lames
Brothers r,umber co. v. Union Bankina and Trust Cn. Of nuBois,
432 Pa. 129, 247 A.2d 587 (1968) and required actual prejudice for
the entry of a judgment non pros. Copies of the above-referenced
cases are attached hereto, incorporated herein by reference and
marked as Exhibits "6", "c" and "0" , respectivelY.
12. In light of the change in the state of the law
regarding the entry of a jUdgment non pros, this Honorable court
permitted Defendants to withdraw their prior Motion for Judgment
non pros and re-file an amended Motion, A copy of the April 17,
1998, Order of this court is attached hereto, incorporated herein
by reference and marked as Exhibit "E",
13. Under the current state of the law, a court may
enter judgment of non pros where: 1) the party has shown a lack of
due diligence by failing to proceed with reasonable promptitude;
2) there is no compelling reason for the delay; and 3)'the delay
has caused prejudice to the adverse party. James Brothers r~lmber
Cn. v. union Banking and Trust co. Of DuBois, 432 Pa, 129, 247 A.2d
587 (1968).
14, since the commencement of this action approximately
two years and ten months ago, plaintiffs have exhibited as a lack
of due diligence by failing to proceed, as evidenced by their
failure to file any documents, including a complaint or pursue
formal discovery.
- 3 -
~
.
15. There is no compelling reason for Plaintiffs' delay
in this case.
16. with respect to element three listed above,
Defendants have experienced actual prejudice as a result of
Plaintiffs' delay.
17. To date, counsel for Defendants have been unable to
reach Defendants to inform them that this stagnant action is
ongoing. See affidavit attached hereto, incorporated herein by
reference and marked as Exhibit "F".
lB. Defendants' insurance company became insolvent
during the period in which Plaintiffs did not diligently pursue
their case. Now, three years after the incident which allegedly
forms the basis of this action, Defendants will be significantly
prejudiced in their ability to investigate the case, contact
witnesses and prepare a defense.
19, Therefore, in light of the above, Defendants are
entitled to a judgment of non pros.
- 4 -
WHEREFORE, Defendants, Jay R. Way and Jay Michael Way,
pray this Honorable Court enter an Order granting a motion of
judgment non pros against Plaintiffs.
REYNOLDS & HAVAS
A Professional corporation
Date: 5/1f:'./C1(?;J
By:
MtJ1~Wf~d~
Atto~y I,D. 32646
Michele J. Thorp
Attorney I.D. 71117
101 pine street
Harrisburg, PA 17108-0932
(717) 236-3200
Counsel for Defendants,
Jay R. Way and Jay Michael Way
- 5 -
.... '''',-".... .....,'1....... l~" .., , .0.
,. 'I,Ot \.J:I
exhibit A
~ I ~~'r ._....~. ,; . . ,.',. ....;.~.-:;.;...~ _____ ~~~. ';-
, ' '
PYS5l0
1995-0~576 'HINKE
Cumberland county Prothonotary's Office Page
Civil case Inquiry
JERRY E ET AL (VS) ~AY JAY R ET AL
1
Filed......" :
Time......... :
Execution Date
Sat/Dis/Gntd..
Jury Trial....
Higher Court 1
Hiaher Court 2
.......................................................i........................
General Index Attorney Info
HINKE JERRY E PLAINTIFF SILVER MARK S
710 SUNHAVEN CIRCLE
MECHANICSBURG PA 17055
HINKE PEGGY L
710 SUNHAVEN CIRCLE
MECHANICS BURG PA 17055
WAY JAY R
247 RIDGE HILL ROAD
MECHANICS BURG PA 17055
WAY JAY MICHAEL
247 RIDGE HILL ROAD
MECHANICSBURG PA 17055
Reference No..:
Case Type...,.: WRIT OF SUMMONS
Judgment......: ,00
Judge Assigned:
2/03/1995
9:02
0/00/0000
0/00/0000
PLAINTIFF
SILVER MARK S
DEFENDANT
DEFENDANT
..............................................................................~.
. Date Entries ·
*****.....******....*.**********..****...***..*****...*..*****....*****.......**
02/03/95 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION
WRIT OF SUMMONS ISSUED
03/03/95 PRAECIPE TO REISSUE WRIT OF SUMMONS BY MARK S SILVER ESg
03/27/95 PRAECIPE TO REISSUE WRIT OF SUMMONS BY MARK S SILVER ES
04/18/95 SHERIFF'S RETURN ISERVED DEFTS: JAY MICHAEL WAY 2/23/95-
JAY R WAY 3/31/95 SHERIFF'S COSTS $92.68 PO ATTY 4/10/95
........................... ..................*.................................
. Escrow Information ·
. Fees & Debits Bea Bal Pvmts/Ad1 End Bal ·
................................i........w......,...............................
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
................................................................................
. End of Case Information . ·
................................................................................
WRIT OF SUMMONS
TAX ON WRIT
SETTLEMENT
JCP FEE
"
Exhibit B
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[J-75-1997]
IN THB SUPRKWB COORT OF PBNNSYLVANIA
ldIDDt.! DISTRIC'l'
C~R~ES ~nd MOLLIE MARINO, :~o. 193 ~,D, Appeal Dkt, 1996
.
hppellanto :Appe~l from the Orde~ of the
: Superior Court dated June 14.
: '1996. dp.nying reconsideration
v, :of its Order ddted April 10,
: 1996, at No. 1961 Philadelphia
:199~. ~tfirming the Order of
';.;:'IE:S HARRY HACKMA.'IJ, JAY ROLLMAN : th~ Court 0 t Common Pleas of
io. E'::~IS .::Ind WILLI.~ ROLLMAN TRUCK : llP.l'KR r.ollnry, r.i vii ni vi sion,
RE~7A~S, : dated May 10 1995, at No.
: 1140-92,
Appelleos
:451 t'a. Guper. 638,
: 679 ~..:.!d 20:,\ (] 996)
: ARGUED: April 28, 1997
OPINION
HR. JUSTICE ZAPPALA
VCC~UCU: April 2, l~~ij
'..Ie must determine whethc~' non-doc:tco; Olct:.vity ITh'1Y hp,', c::on:lid-
e=a:l .....hen deciding whether a case ::hould be terminated for
:.r.::':::l',ity pursuant to locdl L'ul.:s llll;;lL::Itl:JlL:'IIY Rill!! of Judicial
;.rim In i ~r. ration 1901.1 For the reasons sat: ful:::h herE/in, WI! huld
t~:.:: non-docKl!t activity mt1y be considered,
en March 4, 1992, ApPF.lllant:5 filF.ld a complaint in Berks County
;.ee~~r.a damages for injuries allc~c~ly c~u3ed by Appellp.~~'
'. b' t
'The COmpl1l1l0n Cllses ur JdCtJ S v, H~_~o!'~n, __ Pit, __, _ A.2d
:;98), and Shooe v. Eaqlc, _ Va, __, __ A.:d _ (1990), al~o
dec~ded tonay, involve related issues. :n Jacobs, WI! abandon the
presurr.ption of ereiudice first enunci~t~d In P~nn Pieina, Inr... v,
:;-::;'.l!'.:lr.ee Comean'! of North ,.\meden. ::~ f'a, j50, 603 A.2d 1006
(::;:2), and hold that the defendant mus" ;;!n;;!blish actu,'ll prejudice
tj' :t:e delClY 1n prosecut:.on. 1n Shr.r.<1, 'He hold th<lt the same
~:'or.j;.rd applies to tet11linat:.onz pUr5\;al::: to a aefp.nriilllt' s motion
!c: J. judqrnent of non pr03 .:Ind t:he COU1::' s disnussal fur inOlc;LlvlLy
;~:'s~ant: to lac:al t'ules lmplementing ?de 0: Judici<ll Admini:;-
t'r'~':."'n :!-901.
nelJligence in an automobile accideuL, The uuck!!!: rct:lects activity
uu:'ing 1992, in~lud.i.l\g <IlL t111swer t.o the c':lmDLf.lint and issues
t'el...t:.ed to discovary, Tha final I.il~r:k...t ...nt l:"j ,'If t:he year was a
di:;covel:"j-related it!!lO on N,)vemhp.r 30. 1992. No docket entries
fal1nwp.n for t:wo years and a day until December 1, 1994, when the
prothonot~ry of Berks Count.y filed tl notice ot termination pursuant
to Hula 1901 and ~erks county Rule 0:: Judicial Administratioll 1901.
On utlnuary 30, 1995, new counsel for Appel1~nts entered his
appearance and two days later filed a mOt,iull loa prevent termina-
t.iCJr. .
A hearing was held on the motion, where it was established
eh.;lt the following non-docket activity occurred during the period
of a:leged lnactivity, Arthur D. Rabelow, Esquire, was subst.ituted
fo).' Al??ellant,:;' f.i n:t aCt,ol'ney, Donald Art:zt, Esqui:z:'e, due to
Art=t'" d...ath SQmp.timp. in 19Q". Tn Mnrr.h, lQq~, dHPositions of alk
par~:es were taken, In the ensuing monthn, Appellants tried to
cor.::.:lc:: R~below oeveral timen, but he nevet' t'etuI:lI~U LhQ.i..r.' calls.
'",,!l.::t l.:1sl. spoka w.i.t.h Rabelow in February. 1994. when he reported
settlement negoti.ations ami indicated thaI: he would let them know
how the negoLiadons wel'e proceeding in two or three weeks.
F.abelow never contacted Appellants. howevet', and in August, 1994,
Appellants decided to hire another ~ttorney and wrote to R~ueluw,
discl~,,).'IJil1r;r him. TI1",y r...o:.;,ivp.r.I nt;l '~"'$pr:'ln::;(" f,'om R,'1nnl (lW. J\pPf'll-
lanes ~\lbsequent LY ret,ainp.o current. counsel, Dennis E. Boyle,
EJqu:re, in october. l!l!l4, und he requested Appclli:lnts' file from
".::b~luw. ^ft~t' ::l~vt:ll'Ql months, Boyle wu,; obliged to drive more
\
[J-75-19~71 - 2
-;,.
~
than 200 miles to pick up the fl.l.e Ilt Habelow's office, At LILI:!
same time, Boyle received Rabelow'3 w~thdruwal at appearance which
had been requested montha oarli.r.
In dddition to the foregoing ~~Livi~y, aL least five letters
wp.l"P. p.xc:hllnged between COUlll;;el for Appellants and Appellees during
the period ,AUgUst 6, 1993 and March 16, 1994, soliciting und
communicac:ing a settlement dl,!lIlclml (";1111 Apf,,,,llant:s.
Appellee:!'
c:oull:oel r,;ti.pulated chat th~I.'1:! was (11:30 ." telephone call in June,
1994, in which Rabelow told him he would send iJ, certificate of
t'Ccluim::>:> for trial, although it was never T'~1r.:C'li.vp.d.
following the terminar.ion hearing, the trial cour~ held that
Appellants had failed to establish compAJ.linq reasons for the two
years of inactivity on the docket, and orop-red the case teI.luiul:iLl:!u
pursuant t,o Ilerks County nlJla of Judicial hd.rninistration 1901, ~
\o:hir.:h wa,~ ...nar:l".arl pursuant to Pennsylvania Rule of Judicial
A~~:r.istration 1901.1
.
IBerks CounLy Rule of .Tudicial Ad:l'.inistration' 1901 essenti~lly
provides that in Ci1aea where there is nu docket activity for a
period of two years, the prothonotary shall advise the parties that.
the case will be tetminated unless, within sixty daYR following the
mil; Hng of notice, one of the following nnr:llmf!nl:s are filed: (11 a
motion requesting a hearing on the termination: or (2) a stipula-
tion signed by all counsel and approved by the court, allowing the
case to remain active. The rule further provides that after two
YE!cHS or docket inactivity, the cou:: shlill not u.ct upon any
document filt:!ll. ur l\\oLlon m,'J.de with the ex~eption of the prothon
atarl giving notice or the act:,ion IJpon (I mOl:ion for a hearing on
~h~ ~f!rmination.
'This rule provides IlS follows:
p.m.!'.: 1901. PROMI'T 1J1SPOSITION OF :'lNI"l'r.RS: TERMINATION Of
INACTIVE CASES
(r..,ntinllp.n.. .l
(IJ-7~-1997l - 3
The SUPl!rio'r. CQurt. arHrmect, holding that the reasons advanced
by Appellemts to explain ehH delay are not. the type of ''''4:50115
contemplated by our Court in Penn
p' ,
l.nl.na or
Sr.r~inl v, Communi tv
Genp.t"Ml Hnsoital, 529 Pa. 360, 603 A.2d 1011 (1992).4
We begin our analysis by reviewing our holdings in the
companion cases of Jacobs lUll,) Shl'lT:lI:!. In Jacobs, we held that to
di:3mi:l~ a case fOl' .lntil:tiviey pursuant: LO a (Iefendanc' s motion for
non pros there must first be a lack of due diligence on tho part of
Lhe plaintiff in failing to proceed with reasonable promptitude.
Second, the plaintiff must have no compelling reason fol." the delay.
~inally, the delay must cause actual prejudir.p. to the defendant.
Slip op. at 9.
In Sho~'e, we lIldld thill: eh~ same seandard applies to termina-
tions pursuant to a dgf9ndant'& motion for non pros Gnd dismissals
"
J ( , . . continued)
(a) General Policy. It is the policy of the unified
judicial RYRr.Rm to bring each pending matter to a final
conclusion as promptly as possible conRl f.1t,ontly with the
character of the matter and the resources of the system.
Where a matter has been inactive for an unreasonable
period of time, thp. tTibunal, on its own motion, shall
enter an approprld~~ order tarminaeina the mAttRr.
(b) Primary RO:lponsibility for Implementation of
policy .
(1) Each court of common pl~a3 is primarilY respon-
sible for the implement.~t.ion of the policy ~xprt!ssed in
subdivision (M) of this rule and is directed to make
local rules of court for such purposes. . . ,
'An order t.Rrminating an action for failure of a plaintiff to
prosecute his clAim within a reasonable time is within the
discreeion of the trial coure and will not be disturbed on appeal
ab,,,me proof of an abuse of discretion. Go.llcluhtll:' v. Jewish
Hosoital Association. 425 Pa. 112, 113, 228 A,2d 732, 733 (1972).
[J-75-1997J - 4
{ (
pursuant to a local rule im~lementing Rule 1901. We further held
tholt equil:Clble principle~ ~hould be cUIli:lidet'etl Wllt=ll tlismissi,ng a
case pursuant to Rulp. 1 QOl . m; p op. at 8.
This case gives us the opportunity to determine whether the
secolld prong of the test for inactivity, i.e., whethf!r the
plaintiff set forth a compelling ,rt!ason f.or the delay, should
i.nclude cumlideration of activities which are not: reflected on the
docket.
1n Penn Pioinq, we fltated that compellin~ rellsons for
delay were ~et forth in 'cases where the delaying party establishes
the delay was cc)uaed by bankruptcy, liquidi:ltion, or otll!!:!:' operation
of law, or in cllses awaiting Rignificant developments in the law."
We noted, however, that " [t]hare may, of course, be other compel-
Illig reasons which will be determined on a case-by'case basis. II
529 Pa. at 356 n.2, 603 A.2d at 1009 n.2,
While we adhere \:0 thl:!
view that each CIlSP. must be examined on its merits, we Und that
non-docket ~cLlvlty ~an be examined in deciding whether a compel-
ling r.~ason exists.s
In recent years, many court3 of common pleas h~vA nAvp.lop~u
their own policies regarding which activities are 1:0 be recorded on
the docket. In some counties, activity that was formerly recorded
on the docket is no longer. This leads to a lack of uniformity in
tho o:lpplic~tion of Rule 1901 /llld d ll:lu in the gt"Ontlrly of judgments
of non pros. We further recognize th~t some ~ctivities which are
beyond thp. control of the plaintiff can caUDC dc:J.ay in prosecution
\This rule shall apply to all pending r.nses where the issue
has been preservart,
[,:r-75~1997] ~ ~
'-; . . '.,.' .',' " , '
YElt ,'It'!:! not required to ba docketed. This precise problem ~as
anticipated in St.c~irll, where i.t, was noted that "a case llll.IY he
active but have no need of' reflecting the activity on the docket.
, .." (Opinion in Support of Heversall, 529 Pa, at 364 n,l, GOJ
A.2d at 1013 n;l (1992).
Although the dockp.t provides an empirical, easily verifiable
criterion to trigger review or a ~~sa, it is too crude a mechanism
to distingUiSh truly inactive, stale cases from active ones where
activity is not reflected on the docket. Dismissal of a case is
far too harsh a result when the case is not actually stale but was
moving olowly forward.
Applying this standarn to the instant case. we find that the
lower court abused its discretion in diflmissing the case for
inactivity as a compelling rcaoon existed for the delay in
prosecution. Thili case had an unusual amOllnt", of acti\lity no't
entered on I:he docket: Lh~ d!:!C1th of Appp.llants' first attorney and
the substitution of his partner, lIn attorney not known 1:0 or
selected by Appellants; the taking of depu:;itions of 011 the
parties; the replacemellL uf Appellants' second at.torney because ot
Appell"'"t":'!' perception that he was not moving l.iloir: co.oe forward;
tho difficulties encountered by Appellants' third attoL'nay in
nbt<tining the Cllse file from Appellant:J' 3econd o.ttorney d5 well as
difficulty in getting the second attorney to withdraw his appear-
ance; the exchange of lel:ters seeking ~ settlement of the case;
and, finally, a telephone discussion of certifying the case ready
CUI:' tri~l,
(11-75-1997) .. 6
Quite simply, the foregoing record removes c.his case from r.he
category 01: stale cases tllelL. the rules of jUdi.c:ial o:lc1m.i.ni3tration
arc dce:igned to eliminate from the system.
~~ we have already
indicated, anyone of the cited factors would be insufficient to
salvage this case from dismissal for inactivit.y, yet the t.otal
picture painted by this record is that of a case proceeding, albeit
alowly, towards disposition. 'l'his case provides a parfeet t:xtt.lIIVlt:!
of activities and circumstancp.~ which, in combination, justify a
delay in dOCKet inactivity though each circumstance alone might be
insufficient." It was therefore an obuse of discretion to ~or.mi-
natc the case.?
Accordingly, the order of the Superior Court is reversed and
the case is remanded for turther proceedings.
'.
'Our holding does not represent a departure from the rule
that, in the ord;n~ry r.n~H, an attorney's mistake or oversight does
not constitute a compelling reason EU1:' Ct. u\,!ld.Y 1n prosecution. See
H~1e v, Uhl, 293 Pa. 454, 143 A. 115 (1928), At: 1.\ minimwn, a
plaintiff muse provide a reat~lt:milhIFl AlCpl"nill',ion for c'ounsel's error
to prevent dismi9~al under Rule 1901 or entry of a jUdgment of non
pros. Moore v. Georae Heebner, Inc., 321 Pa, Super, 226, 467 A.2d
1336 (19831.
'As we have found that. 1.\ compelling 1:'l:!Ct.l:lUIl t:Xilll.tlU I:or ehe
delay, we need not ex~ine whether Appellees were actually
prejudiced ~j the delay.
[J-75.1997] , 7
I
::
. t---:. \ I ""'<<1'4';;:_,'
. ,
ExhIbit C
'~" .-.... - .
, ' ,
[J-200-1ll~7]
IN ~HE SOPRBKB COUR~ OP PBNNSYLVANIA
BAS~ERN DIS~RIC~
LISA R, JACOBG,
:No 10 E,D, Appp.ol Docker. 1~~7
Appel1!lIlt
.
: Appeal from th~ Order of t.hft
: Superior Court dated March 7,
: 1 qqfi, Ilt, No, 00599
: philadelphia 1995, affirming
: the Order of the Court of
: Common ~leas of Montgomery
: Count.y, Civil nivision, dar.flrl
: ;Jllnuary 17, 1 q!:Hi. ar. No, fl7
: -12131
v.
HARRY HALLORAN, PATRICIA
HALLORAN, LYNDA FYFFF.-MCF~npF.N,
GENERAL MOTORS ACCEPTANCE
CORPOR~'t'TON,
ApIJl!lltltll>
: SUBMITTED: DecembeL' :;:, 1997
1m. JtJS~ICB ZAPPALA
OPINION
DECIDED: April 2, 1998
This appeal raises significant issues regardi,ng t",he standtll'c
appllcable Lo the dismissal of a case for inactivity pursupnt to u
defendant'::l motion for non pros.'
For the reusons, set;, f.on,!)
herein, we hold that l.he equiLable principles undeL'lying the onLI,','
of a judgment of non pros must be recogni::ed and the presumpti on ,If
prejUdice fh'st enunciated in Penn pioina, Inc. , v, Insurance
r.',.,mr.~nv <:If N<:Irt'h }\JI1~dr.''', S?'l) P.:I, 3S0. ~Ci3 l\,',r,l '1006 ('HI!)?'). m"...1;
btl l:IbcHldoned.
AppA11ant., LislI ,7ac:oh:;, wat; injl11:p.d in an Illlt".omob; LR .":011 i:;~ Wi
IThe two companion cases of 5hopF.! v. t::ar.Tle, __ Pa. _, _. A.::d
(19~Bl, zmd Marino v. Hackman, _ Pi:!. _' _ J\.2d _ (199B),
al~o dec~ded todllY, invo1vR the dismis~al of lIc:tion~ tor lnar:t.;v~ry
pursuant to lOCi'll ::\lles implftment.ing Rulft of ,1udi cio1 Adrnini SP',I-
tlon 1901. In Shooe, we hold that the same standard io applicabl~
\',n Lp.rminnr,inn,:; t",l1'$~I"nt t,o i:l dt'trp.nrlo'lnr,'<; Ir,oti.on for i:l jurl'J!,,!:'"t t.lf
non pros and the cout't'G diGmlSSal purr.uant t" Rul<;l 190'1. J:1i
Marino. wa hoLd that. non-docket. act:.l.Vlty can be examined .n
Utll.t::L'1Il11l11lY WI1I!ChHt' d l;UIIlLJl!l.1.lllY Ltld:iUll \,lxisr.~ fm: r.h~ ul!lny 1 n
pl'nsflC:llr. inn,
ir.'.r:l I 'JinlJ a vehir.1 e .)W:led by Appel:Ap.!;\, Hal:ry and PCltt':''::'"
Ha: l'.1N,:'). When Appdldllt tiltlrl !V!l' CCllI[l :.Il1 nt in A\l(11J:Jt ot 19i.li,
she believp.o t-h...=tt t:ha vehl.cle had bHer. ':iriven by A~!J~] tea, ':'lyt1~l'1.
Fy:: ::~-McFilddcn. with thu permi:iH i on of the Hi:l11 nrans .
On November 16, ,} CJ139, almost t,WiJ yeiu'o ;:lnd three monthll afr,F,l'r
~h.c ::c,mvlaint waR fl.1lld, Fyffe-McFudd"':l testifif!r.l dt il ctepo&i::ion
::-,':l~ ~h.., wet:; nm:. dl'iving th,) vehicllJ .,t. the r.iml.' of Lhe accident..
Ir.llt.eacl, shll stateo that a triend wao: drivina Lhe HalJ~lriln."
vbh:.cle ',.;i thout thtlir COnRF.!nt. This admission creatod u possiblu
\lr,:'.,;;\.l.'ed motoriflt d"im u9diw,t, LIll,! j,n!:iut'f.lt' of t.hll vehicle ill
'....1;' ;::. ';;1pellant was il passenger at. the L~Inf! or thl;! cOllisiOI1.
:n SI~p~,F,!mber of 1!l9:t, the doc:I~F,!t l'ctlectf!ri t,h~ wit.hdz:uwaJ of
.;\=opt-:ll<lnt; 's cOllnsel .'1nd th!! appearance of her new counsel. Entl'ie::l
W<;::'1 301:::,;) made on thf! dock~t th.L'I;IlIUh Occ,ober 3, 1991, No d~lcket.
.;ct':":~Cj' or.curred Lherf!ilfl:er until Ot:tobet. 26, 1993, when L,he
::0::':':\:::& pl<<!l:5 COIIl.L, i:osued a notice tllilt H wuuld terminate the caSE'
t:;= l..ir.k ,~t "ct.ivit~" ^Pp(~ 110Jnt riled 1111 ...,"t...i.vu status certiric.:l
r.~o~ on NovemUllr 5, 1993.
On Apr; 1 15, 1994, Fyffe-Mc:'L1rlden filed .~ petition for ent.w
;;f a judgment. of non pt'OS in which thl:! lIallorilll5 later :ioined. On
()L armu:: June 23. l!i~4. Appellant provided .;ppel1eas wiLh an expert
\~l:::P.il:; report 1m d~mllcr"'~ .\IIU reqUer.t",ed them to si911 a PLIoIp.cipA
(;!:!rt::::/ing the C:~5e I1R really f('ll" trial.
'l'he COUL't entered jUdgmentll 0:: 11:1:'. oro!: tOl.' AIlIlAI tees by
"!:rIeL:> dac.?d Suptembcr 26,19~4. Thes\: ornf!r1:l were !lubsequent.:'y
':.;('':\1:01,1 [:I:':ldir.g 1:ec';'Il:.;ideration a.nd Ol~ ,J",nl:a:y 17. B!l~, the Ot.uers
(,]-200-19971 - :
wp.ro'! t'f!in~tClt,ed,
i\Dpellant Fi. h:d 11 motion f.aI' recon:;i der,'lr.io:l
Whf.n:eln :;hp. l:equested l:haL the COUI't open the judOllllmts.
The c:uu,rt t't;!(u;Ot:ld l,(J (1[llm the judgrnenl.:'l, hold.ing th.:lL: dockeL
i nactivit.y of r.wo year!> and. six months~ establishf-ld do lack of dUH
diligence in pursuing the claim; that the exchanue of correspon
dence regarding the 3tatus of the uninsured motorist claim and the
chimge of counsel did not constitute compelling I'easons Lor thG
dl'llay: I and that: ploejudice to AptH? 11 PPr,; l"Ar.1I1 r,; ocr frnm I",ho rinl,'1Y
.is pl:asuml:!d, It rejected Appellant. s claim that Appellees suffered
no actual prejucli ce ber.;'lu:;p' the case was ready for trial. 'l'he
CUUI'l:. luL'Lher :refused to con:Jidcr an affidavi t. of I\ppell,1nt'lI prior
counsel whi eh allp.gp.d that the liallorans' counsel ot'ally agreed to
allow the case to be delayed while Appellant pursued the unin3u~eu
motor.iat claim. The court noted that the alleged oral agreement
was not roililed in the re3ponse to thc petition for judgmont ut: UUIl
pro!!, in tho supplemental response or lit oral arglU1\ent. It LUI'tlwJ:'
$l.dl.ed I.l'&aL Appel.L.:ant: failed to take discoVCIY regardincr the
agreement.
JApPdrently, the court measured the delay from the last docket,
enLL)! 01: OClober 1,1991. to the April '15.1994 filing of thH Hnl
lorans' petition for a judgment of non pr~5.
'Specificillly, thli! court held that tho t imo spent deciding
whether to bring the uninsuI'ed motorist claim constituted 0) leg/2lly
ouLL.ir::.i<:!111.. '::.l<pl"naL.i.ot~ for Domo period of t,he delay. It r..asnn",d,
however, that 3uch decision should have been made in a matter of
days and should not have been res~I'V~d Ullt il the receivin!J 'Jf d
formal denial of coverage. The court racognizp.d that new counsal
was ret.3ined only three weeks prior to the period of iMct:.vity.
1'h", court: fnunc;l it. t'c'!r'\fH)lVlbl A r.o Clllow coun:;l'!l r.hrAE'l mnnr.hll to
familiarize himsf.!l f with chf.! C/1~~, Lhu~ It!l1ving an unF.l:<pll1iut!u
pet'iutI uC ut!luy of t.wu YI:uL'tl unu l.hl:':o mOlll..btl.
rJ-200-19971 :I
I
~
Tr.e Super;":)!' COllI':' <If:.iL'ml:u on the nil':; i,':; Llf thl'! <':OlM\tlll pl,;il<1
cc'u.r:t". op:.nicn I ~ ,1'.ld,,~ l\~lly di3;;Anr:~d, finding l:hnr. t.he c"uunCJ1-,
pl"',,:J COUl.t abU3E'1rl it3 llis~'~'",!;ion in P.r.l:c~'ing 1,:1'" judgrnel1l.u or t:n:"
p:-ns, He con/;ludl)d that, t:r)ns:..:leL'ing ~,;1e equitable pri nclples
under lying the t:!lltry of a .~Ilcigmp.nt ot nun ];It'03, Appellflt;!lI shOtlld
net:, benel:lt (l'om any delcJY .i.ll prOSF.lCutlcn whi::h r,lwy, in t:m:::,
crc.:.ced,
The l'1up.stion of grant.ing il non prOll dUl: tn r.he fai1uJ:'~ of th<':l
pJ.ai~~~f~ to prosecute his action wilhin d re~~onahlfl time rests
with:~ the discretion of the trial court drld will. not be disturhod
abser.:: an abuse of r.list:rflr,il.lll. Gallallher v, Jewish HosoiLd1 1'.5s'n,
4;;5 ,'... :'12, 113, 228 A.:'.d 737., '/33 (1967).'
''l'he court trp./lLed Appellant' fi motion for recoll3idet'l!t,ion CiS
~ pe~iri~n to open judgmenr. of non prulI as it. contained all thp.
c:.=::r,ent.s necess.:uy Eor such petit:ion.
\'10 recogni:l.e thaI. in m:rlr.n' to rl?lr.oVG a judQment ~)f nOIl pr.05,
:r.:-ne elemullts mu~t be met: (1) a petition r.o up en must bEl prompLly
fi:ed: (;! l the delay lIIU:lt, be reasonabLy e:~plDined: !:Ind (3) fact:s
mUi;t be :::hown to exist: which support cl. CClUS!'! ot i'lctlun. pi.n!:
Town!'>hlO Nater Cn, , Inc:. v. Felmont Oi 1 COt'c., 425 Pa. supel.', iiV:i;"
6;:~ A.2d 703 (1993), alloe:. dp.nied, 53" "c.. (jG~, 044 A.2d 120:::
( 19 9~ I. HowevF,lr, since APpellant's unrl","lying claim io that the
r.ourt erred in entel'in!] the non pros, OUT. opinion discuSSflS thF.
std.n::lll-d apl.llicabl e ,to r.hat issu~,
, In Gallaqher, our CO\ll:t used the t.erm "mani fLlst abuse of
di3C:: et ion" in describing the apPl'opr.i.~t e iit.andCll'd of revll)w.
'J~ll~qheL hos been repeatedly cited for thJ.s proposi.tion. See
,Jarr,e~ Brother:;; Compl:Inv v, Union Bankir.a dnd 'l'rusl Comoi'lnv of
"l1h"~~, .132 Pi.!. 129, 1.3<:, ;~47 A.2tl 587, 589 (1%8); E'enll Pininn,
529 Pa. at 354, 603 A.2d l:It lUU8.
'tie hi'.we sub!leqllentlv held. htlWPVF.'r, thar. r.hCL'C; i:~ no di:lt.i.m:-
:::on botween .:J, gross l:Ih1.lse of diM:rp.tion 3tanoi'lrd of review and iln
"b~l.,.: of discretion :1tnndal'u. SetJ Moore OJ. Moor.;-, 535 Pi'I. 18, 2l:l
a.~, GJ4 ?.2d 163, 168 n,4 (1994). ':"he Lerm "grofiS" is merely
sur~l~~.:J,ge which doe~ noL ~l,er t.he standa=d of review. Sec ~lso
::o~=,,~rwJr.'alth v. 9ro'....n, _ F,\, _, _ A,2d _ IB!lKI (Opinion in
5up;;urt of Affirmancf:), Likpwl::;e, wu rind the use of thl'! term
":n~::i:e;;r," in "moniEp.Rt abu;iH of diS:\~l...tlO:1" hac r.o lMa~~l signih~
l,T-~OO-1!if)7J - 4
:1
Th~ lowel' courts appl; Ad the :.!~andal:d tOL' ent:l'!rina a jlldglOQlll:
i
!
I
,.
I.
i
i
of non proG announced in ~...nn I'iol.nq. we began OUt dlldJ.y,;.i,:; ;'1;
Penn l? lull,.:r by rli~r,j)tln9 t.ho t,hree part. teot. set. forth ; n .lallv,,';
9r':)ther~ Company v, Un; on B,'lnkina and Tt.ust Comoanv of Dul3ois, 4.12
l?a, 12!), 13:1, 247 1I.3d 587, 58\) ( 1 !1I:;f.l) ,
A Court may properly ent:Ar a jUdgment of non pros whffln ~
pnrty to the proceeding ha~ shown a want of due diligencp.
in fai ling to proceed with reasonable promptitUde, and
there haa been no compelling re~son for the delay, ~nd
the dp.l,!IY hnR r.nm'led !lome pnd udlce Lo the adverse party,
such as the death of or unexplained i~bsence of material
wiLnessf.!Il,
In PAnn Plpincr I where ::;ix years had I i1psed aftul' Lhf.! filing ~, f
the complaint, Lhe lower cour'l:1l had agreed thar. (1) there W~15 IHI
ahfifmc:e of: due di.ligence in prosecuting the catlt: clnd (2) there WI;lIl
no compel ], i ng reclson for the delay,
At issue, then, was tha
prejudice prong. Citing Sht'WII v. Philade10hin Electric C~1., 440
rOo. 383, 269 1\.2d 502 (19'/0), our Court found that.. r.hfl dp.l!1Y was
"presumpti vely prejudicial" and went Oil LO hold that. . in C!1ses
involvll1Y cI l,lt:!lf.l}' .,f two yeol:'S or mOT'I:l, l.he delay will be preswMd
prejUdicial fOT' PUL'poses ot <tny pt'oceedino to dismiss for lack 0::
activity 011 the docket.".Is!... at 356.603 A,:!d at 1009. We also
discussed whether t:hp. pre~um"tion of prejudice was f;llcc:essful1y
rebutted. We concluded that because an unexplained delay of fOUL'
years existed, which exc:eaded the two yellr period l:Ifl.I:!L' whier.
projuciicH it! pnl:;wncd, the presumption was nnr, rp.hllr.tcd.
}
ii
Appellant contends that our deci~ion in Penn pioinq was nol.
. ,'"
~.;:
cance and is t l1el'eforA Ilnnec:essaty l.v desc::dbe the applictlbl A
~t.nndl'ird.
[.j-:WO .19971 - 5
.
lnP.nnr. to allow a de:.;:nd<lrlt to F,lnj':JY t,he bl'Jnefits I~f a jUdgment, 01:
non pros when the p&r:..:.d I.': delay Wfli". ':harg(~,~b 1 f.1 t,:) or C"'U:,H~~t by
thE: defc:nd.:lllt. :';h", fllrcher argu9E: that J.t i", inhcl:er.tly UULy.i.L' 1:0
r.li:;;n1.3S thF,l I;ase when no Clct\lal pre,udic~ was p...l",,:,hl i :lhF,1c1 sinC:A the
Case '.~as ready for trial. 'T'h~se arguments es!:enl:i.'Illy ch<illeng...
tl~H propriety 0= the concept oC presumed Pl'8j un:.ce ,
';ftcl.' c:Jll exr.enoive rev:i.ew of the 11l:il".or.ical rationale
ur.del'lying thp. entty of a judQl1IHnt. r:,[ non pro,,; along with t,he
c.;urrpnt pracl:ical dilemmcw which have l'esu:ll:~u fI'om applical:ion ot
the Pl"l?sHlIl\ption, we conclude that. tht,! t.we, Y~Ut' presumpl:ion ot
;Jre;ud:'cf! mLlGL be abannonect.
7he::oLlrts of penusylvan:.a have ~onq recognized thp. existenc,,"
.:lL the: PI;WC::tO of thH court t(j ellL~r il ;udgmcnt of non pros in cOrlse
l'JlIl?n,=,= ot long delay of pI:'o.seC:lltioll ot: <l t.:C\lIse.
War:lllQ v. The
?p.::f'~','l'!,lIIia Railroad Como.!}nv, 176 Pn. 172, J, A. ln6 (18%). Thiu
po.....e:- "riglnul:t!d in Common law, prior to thl:! passage oL any
st~t'o.lt:n.
Tr:!,
-
Tha gran I: of non prOll '"a:; t:.:acliL.i.ulltllly bas",d nOL
up 0:-. 0 sc.al:ute of limitations. but l.','.Ir,h",/' upon the equitable:
-~. ~c' p1e 0<
,t;J"" -" '" ..
lache:~ which do'~:; lloL
inv.:;lve the pilssagp. ')1: c.
:;p€:c~::ic.; amounl: of time. Manson v, Fir:;t ~Iar.ional Rank, 366 Fa.
;:11, 77 A.2d :,\99 (l9~1).
. LacheD llrist!Ol when il d",fendanr.' s
r;C,Sl:lon or riahts /lrE1 oS.;) pl't'fJuclic.:ed by 1enqth oj tim~ lInd
~r.ex;:'JS3ble dclllY, plus attenda:11. fn~l",> ar.d C~t'CUllu'tnnc~o, t.hut: it.
.....r.u_::! be cirl :.nlu:;t.,ic,:' to peI'mi~, pL'esenL':'y the aSSp.rtlon ot Q claim
dga::::ll: him." Jlach Est:o'lte, 426 PM. );,u. 3S9. 2:\1 A.:!d 1.25, 1:3U
!:~):l:). qllM,in'J, Grot/;' Tt'U.H, ,HI! :'0:\. ;::iJ, i.(j~-270, 23:; A..~rl 383,
lJ-~OiJ 19(7) Q
:\
i
I
I
I
l
~
.
.
387 ('1~'i7) (empha::lia lidded)."
<:~)nsiscent with thi.,; not-lUll, t:l:lr:ly cc:tse:> held that if delui'!.l
in ptU3ccution arc to ~ great extent dUQ to th~ d~fRnrl~nt'~ OW~
procurl3menl:', it wuuld be an injustice 1:0 allow tho de(endi1nt t,c,
impute laches. WinlJ\,lrt: v. And",rsol'l, 10t) J?a. 402, 1fi4 A. 333 (1932),
More importnntly, WI! t111;11 hAld that the plaintiff wi..11 not be
panallzed for laches it hi:! deJ.ay has not resulted in injur.y \./) 11 i ','
^rlvRrsary. Mon~on v. First Nl:ltlonal Hank, 3GG Pa. at i.1S. 77 A.2tj
at 401-402 (1951), citing Montoomerv Brothers. Lnc.. v, Mnntaomerv,
269 pa. 332, 112 h. 474 (1921); Ralmer v. Smith, 2a~ PAr 67, 70,
131 A. 663, 665 (192 Ii); Ouinn v , AllIerican GDiral SoI.'ina &. Manufac-
turina Co., 293 Par '152, 160, 141 A. 1l5!), 858 (1928); Potter'1'h1t.
& Trust Co., Administrator. v. Frank, 298 ~a. 137, 141, 148 A. 50,
52 (1929) S~111t:eson v. Sh/lfp.r, 35/1 i'u, 458, 463, 47 l\.:ld &65, 6lifi
(19~6); Lutherland. Inc, v. nAhlan, 3~1 Pa. 14~. 157, 53 A~2d 143,
150 (1947); Joseoh Melnick Buildinq & Loan Aa~u~lcll.1CJn v. Melni.ck,
361 Par 328, 339, 64 A.~d 773, 778 (1949).
Conaid'.!t'i n(j ",hAIHl equitable principle:;! thi'lt undorli e t",hA f!l1l".l")l
of a j udgrnent of non, pros, we find that, our ~doption of 1I prC:1U1ltO'
'Black's 1.lict ional'Y similarly providl!~ Lhac the ducLdne '"It
lachp.s i:3
based upon thn mAxim that equity C1idll the viqi1ant and
IIUl: Lhase who slumber on their.' riGht,s. It ill defined as
neglect to assert a dght or claim which, takHn Logcther
with lapse of time and other circurn~Lance!'; causing
pJ:eJudice to aUVIi!L'se p,')rty, ope::-ates <:ll:l i:1 bar in court ot
equity.
Black's L,aw oir:t:ionuIY 875 (6th "rl. 1!l!lO) (p.mrhl:lsls added).
["'-20U,1!)!)'/l - 'I
dO;l ot prejuuict: in Penn Pioi\1a was erroneous.' Simply put" rho';
presumption i::; iIlC;onaio tent with the we_.!.-ao taoll r.tlf-lcl rmt.:'(lIl ChOi::
'..lIt:' 'H'.Ivel'sa::y must :suffel." h.lr:n b~['~L'e " t:U:i':! i:il 0; t1missed for lad:
0: !lcosecuti,:m, ~~\ch harm 0:: pl'ejudice to ehF.! i:It.lversary i:'l I:h,'!
ver:'/ fJU:iL:; upon which /\ cl.::.im of lllche:l i:.1 foundeu.
'/lie recol.1llhe that <:1efendant,$ milY be pt'flj udiccd by undue dolaya
1n litigiltio:l - - memories fade, witnesses disappear and dOt:lllnenL!J
b<'lr:~'m<a lost or ~rp' rl"':'lt,l"t"lyp.n. Aclclit:ioIlCllly, pend; I1g lawsuies often
ca~.:se undue sn'ess ~nd anxiet.y, Howevel', Lhl.! (ules conC;flrning t:h~
disrr.:.ssa.l. ot casell for: inactivity reflect policy concerns whir.:h
implicate::: the interests of both plnintit ts and ciefendant:.!, XL it:
\1nneces::;ary to presumE'! prejudice beC/;lUlle Lhe defendilnt i:3 f1'oc I,')
prp.sp.n~ evidence of actu~l prejudice. !~ cas~s where no ~r.tivity
r.as o,;c;Ul:'t'ed (or a period of two years, but th~ tl~r~mJ.UlL h.!&s not
, .
lU:i~ hi:! ;:l,bility to adequately prepare a def'.lnSA, 3.1: corve!: nr.:'
",ql.:':'':,,,ble purpose to dismiss the plaintil:t's case solely dUE! co the
tJ.:>::i<J"""e "I l,line. There is no logic~l distincti.r:m bfll:ween the hQrrr.
caused to <l defendant. by the plaiIltUf'$ rlelny nj' r,wo yenr:.! and Lhe
h" I'm ~"'Ilfiflrl t.,') a def!3ndant by c) dfllay of two yeEu:s less one day,
l1r;reover, M\ Ii result of defining a period after which
prejudice i.s Q,ut.om,,,tically preswned, the ~l'a.~tic~l iiPplicatioIl I)t
'A:s noted in chi~ authl',l":; diaaont3.n(l opinion in Penn l'iuinq,
cr.a statement in Shrum providing eha~. t",hA !leV!!1l Y"'c\!.' lc\~,~1:' ')[ L im...
',oIa;; "presumptively prejudicial to all partie::; even without any
llJ,;edfic showinCJ of pre;udice on the rccot'u.' id, aL 386-87, 26:1
:',20 at: 504, was merely dict~un. We r.nnc:ludod ill Shrum that no
In':il..:.ons for non pros wp,rn f i 11~ri FIOri r.ha t the lower court did not
dec~dc the case on the ground of dclay alone. Shrum therefore di~
r.Qt set a new Rt.nncll'lt'li LCJr t.h", entry of i'- judgmflnt'. ,'It nl)\1 pl'Clf.; M\
(1I::' \.Olll:t. COU:liU':lt'O;:l.t ~h~ '-'L'J?t:'r.,1 ':'" i. t~, m""; ton,
[J-2f)rJ-B~7J - ~
this equitable doctrine ha:o become enigmatic:. There h,'1::1 br~Qn ,;,
lack of consistency in the lower courts ",3 tel wher,hflr thA pnlllump
tiOl'1 i", ~"p.hul:~.....hl", ...nd, if :l0, whllt typo of evidfmcc io rcquil:'od.~
'!'his indicateD to UIl that the application of the preswnpti.on ha:i
proved to be unwot'kable. Furthermore, it would be unfortunll.l:e t,.,
saa l.hoGe matters which havp. hAen c:1Fm,I1:.lIOU fL'om the docket dUfl 1:.1
thl:! I:!nl.e.dna of jl.lrlgment::; Qf non pro:! I'eappear .:IS i:lttomey
IIIdl~IL'c\cL i.(!1il (:1 (l i ml'l.
'rho AffAnl: of our dAcision today is to return to the tht'ee
part test of Jame9 lIrocherg, '1'0 di,smil'll'l a l':i1l'lP. for inactivity
plJ1'3U/'.lr1t: t.o a dafendant' s motion for non pros there mugt fit's!;. be
a lack of due diligence on tll!! paL'L oJ: the plainti ff in hi.Ling 1:0
proceed with reasonablfl promptitude, Second, the plaint:i. ff m\lst,
have no compelling reason for tll\'! delay, Finally, t,he dele'll{ must.
cauuo .Holt lwl PL''':) uI11,':I,:: l.0 LhCl dofondant, ~ hE always. t,hi s dF.lt:,\;ll"1lli-
"For example, iu Mudd v. N09k~r Lumber. lnc., 443 PC!, S\lPF.'r,
483, 662 A.2d (j(jO (199::;), the Superior Court:. held thtlc the
presumption of prejudice was rebutted by the conduct, of t,lw
defendant seeking n jud!Jlllent of. non prOll, 'l'hp nnllrt, fnllnrl r.hllt
where l:he ch'cumst.ances indiclIte that the party seeking non pt'oll
haD come to the court of equity with uucl\,lau htinds, the paL'l.y io
estopped from obtaining the equitable remedy of u judgmenl. Il~JI\
pros.
More recently, a different panel of the Guperior Court. held to
the contrary in State of the Art Medical Products v. Arie~ MediCal.
~, _ POI, S~lper. _, 6J3!1 A,7.d !l~'1 (199'7), ThFl COIII'I: r.hl'lrfl hold
that the Penn f'ioinq pt'esumpt10n mi'lY he rebutted only to the: extcn:
r.hnt. a pl~intiff ~~y demonst:r~te that the unexplained p~riod u(
docket inacc ivity is J,ess than two Yllars, Thin intArprE!tat it\lI
precludes rebuttal of the presumption because it: the plaintiff Celli
e:;tablish that thfl period ot delay io 1000 L1lan two yeaL'o, the
presumption would not apply,
~This I'ul#:: ::lhtdl cJIJVly L.I.I ,Ill J)l:'mUlI\J 1:<'1";1';:, wltI:H',," \hl:' j~:;IIt'l
hn$ been preserved,
fJ-20Q, :L9~'/l - ~
CO"" ract 1.
45;'. 520 A.2d 891. 894 (l~)B'1l. citing Arnedcan Bank & Tru:Jt. (;lJIn"..r.V
inc. '1. Riverw
rs Inc., JGO Po.. Saper. 445.
!lac.ion is to be made by the t...i.:o.l r:aurt, whOlJC decision will no~. hi~
dlstu~bed ~bgent an abuse 0: ui~c~etion.
I:I JallI"'::; Brothers, we not.~d Lholl. p,,~judlce could be P'?r.'lh-
1 isned by ::ha neath 1.11' ith::;Ftt1I~P, of a \l\t\teriul wit.nr:nc. The 5\1pariot'
Courc. lIr1H (urther defined prejulllce as "any substantial dim~nllr,~on
wC u p~rty'~ ability to properJY prp.sen~ i~s r.ase at L~io1." MeL~
v. !utter. Tudd .'.nd Haaven, 2'14 1"\1. !::upcr. :2BS, ~19 A.2d AOll
(19BO) .
A~ Lhe court presumed prejudice in the instant c~s~, we remand
l;he m~tte.r for a detp.rminaL.lon of whethF.\r the Halloram\ Wflrfi
ar.'c II it 11 Y I'lI:~j udicetl by the r1P,1.11Y in protlct.:ut iCln . In
A tem~nd is no~ necessary ~s ~o FYffe-McFadden, however, ~g we
t ind th~t'. it. is cleaI.' c.hat she CIUlle he fore the court wi th' unclean
bands.
entry or a jllCtgll\lmL u( non p~O:5 must do :....,l wi.l.h clean hands. Mudd
v. ~losker Lumber. Till::'. 443 r;:l. 1'l1l11p.r. 483, &(,2 A.2d 660 (1995).
A party who oeeks the equitable relief provided hy th~
:'he docr.rine of uudean l'and~ is
f(1r more than a mere bt\lmll:,y.
ordinance thaL cll,ses the dOUI.'3
Cine tainted with inequil;3b1anef;5
It i~ a self-imposed
of a court of equity to
Ot' bad f;lith L'elClr.i.va to
1r.'tI~ need not reach the itlOUC of. whl,!Lher tho;\ ~rial court erred
1.:1 re fu:.;ing co cons id~L' the af fidavit of APpellant.' 5 prior counoo.l.
which stated that the Hi'1 11 0 ran:::: ' co\lnsp.l agreed to tlllow t.hp,
proset:uLloll ot the case to be delayed whilu tlit: uninsured motor;.tlt
claim WI1S pending. 'l'hi" I1ffidtlvil'. was firflt presentftd l.r.
,;ppellant'3 petitl.On to open. AS we find tllCl'. ~IH'" I.!'iill \:ourt.
.mploytld the l.nc:ort.t)l.~~ :'I~^nl'l^rd in init1.o:IllY entering the non pros.
jw:l(Jl11enr., .)ny aL'~ument relating to the p\l'_il.lon LO open t.hA
jlluYLllcnL need not. be discU!>5FlII.
.. ~.. ..... " .
(,)
Exhibit 0
[.7-8-19981
IN THE SOFREHE COURT OP PBNNS~LVANXA
MIDDLE DISTRICT
DANIEL E. SHOPE AND SHONNA L.
SHOPR, Ii:::; WIPe:,
: No. 119 H. D. .;ppeal Docket
: 199'1
v.
:
: Appeal from the Order of the
: Superior Court dated March 12,
: 1997, at No. 0063 Harrisburg
:1~96, affirming the Order ~r
:th~ CUUl.l. lJf Common PleCl:l of
: York County, Civil Division,
: dated December 21, 1995, at
: No. 91 SIT 05114 -01
Ar;lpellants
?ERRY A. EAGLE, M.D., AND YORK
HOS?!7AL,
APpellees
.
.
: SUBMITTED: JanuCl~~ 27, 1990
MR. JUSTICE: ZAPPALA
OPINION
DECIDED: April 2, 1~98
:'~15 appeal. raises the issue of whether prejudice t.u Lhu
defenda;-.:: all Q result of delllY in prooccut:.on i& required bQforQ a
case ~.:\:" l;\", di Rmi Rsp.d pursuant to lc.:c<ll l'ules implementinq"Rule of
J:.:1i::..:.: Administration 1901.\
w~ Colli:>.....:: this inquil.'Y in the
.:l:::'l.:::a::.vc: and hold t,hClt. t'.hCl standard a&:;;ll:.cablp. to tp.rminllrirmfl
fer :.::acdvity pursuant too a defendant's motion for non pros
a;:p::.e5 equally to di:lmisoal;: pursuant to "\lip. 1 ClO1. As Appellees
~ave established prejudice, however, we aE::rm che decision of the
SI.:P€:-~;:::- Court.
GlI ,Jllly 26, 1990, Daniel Fl. ';;hrlpp. 'N"':; in.,olvcd in UII <.IU\:UlIIQ
'~he companion cases of Jacoba .,. Hal:~:-an. __ Pa. __, __ A.2d
__ (1~98), and Marino v. Hackman, __ Pa. __' __ A.2d __ (1998),
a:=~ dec~ded today, involve related lssues. In ~acobs, we abandon
::.,e ';:-esumPtlon of prejudice ::.rst enunciated ~:: ?enn rioinq. Inc..
.... :1,~lJ~~lIl.'e CUlltlJ"'IW or NOl",:h t\met.:~~, :;:;9 PII. ]50, 603 A.2d 1006
.i 9n;. ann hold that the defendan:: must establish actual prejudice'
b:.' t~e delay in prosecution. In l.!a!':nc. we held that, non-docket
3c::":i'.::,' may be examJ.n\?d in neterminlng ',oJhethe~' a compelling reason
gX~s:s for the delay.
.
.
bile acddent and ft'cl.ctured his right leg. H~ WIIR subsequently
treal:ed by Dr. Peny A. Edylo:. M.D., at '{ol.k H,)spitCll. On October
23, 1991. Danisl And his wife (Appellants), filed a medical
:11c1JLH'.Il,:I..i,.:t't a:,d cot'por~te negligence .:lction against. Dr. Eagle and
'lork Hospital (Appellees). alleging that Dr. I::f.\Qle negl igently
treated D~niel's leg.
The docKet reflects I:h~t u tlubpaena w~s i~su~~ uu August 31,
B92. The next cnl:ry was an Ocl:ober 25, 1!J95 court ordp.r: directing
the ~artieB to appear for a hear~ng on wh'~"9r ~hR case should be
ter=:.i:latcd for imlt:t..i.vity. Durincr t.hA period of incJct.ivil:y. Dr.
Kr~~e~. an orthopedic surgeon who had exarn;nAo Dllniel after Dr.
Eag:e's allegedly negligent treatment, died.
At the termination hearing, Appellants urgued that the delay
H. p~05ecut.lulI WClS partly att~'ibutable to Appelleea bccaut'lc they
fai16c. to timely produce ~n \l-rilY whi roh waR critiCal \.u L1ta case.
The t=:al court found that the missing x-ray did IW\' ~([ect the
ou:::c:::e of tb~ Ci:1se, th.:lt the dolay was not chargeable to AppeJ.leca
and r.nilr rhp. nHat:.b or Dr. Kruper prejudiced nPpellee~. According-
ly. :.: terminated the action far lack of act: :.vity pursuant to Local
Rule 2S5tbl.l
lRule 255 provides:
(a) All civil caseo filed in this court which shall
no\. have been reduced to jUd,"ment or : inl.'ll l)rORT, .'1nd in
which no action has been taken for a continuous period of
twu (2) years or Inore preceding the end of each calendar
year. shall be automatically terminated as herein
provided, in accordance with Pa.R.J.A. l~Ol.
(b) On or before the tourth Friday of ,June of each
calendar year, the prothonotar/ ohall furnish to the
[J-B-199B] - 2
The superior Court at:irmed, holdlnq that althouah the trial
COl.lr~ <lppliP.d a l:escinded '1p.l'sion of the! ':'OCl:I':' Lul~, it did nuL.
abur.c i 1:0 discretion in termina.t.ing the C!l:lQ.'
It found tha.t:
because the trial court: ordel.'ed the termin"U.on pursuant to 11 local
rule.
rather than p.ntp.1'in~ !\ jur.lomli'nr. of nnn
pro!;! for '04or:kAl".
'"
~nac~:. ',i ty PUt'l;lIc.1ut. Lu ?!-!1lI1 Ploina If. Ins'J!'!lr.ce Comoanv of l'iprth
.;merlca, 5~~ Pa. 3,U, 6UJ A.2d 1006 (l~~2I, no prejudice to
Appellees need be demonstrated. ~t further held that Rule 1901 and
th'9 local l'ules promulgated thereunder are dF.\$ignad to eliminate
cas~s ~hac. have become stale for l!.!!.ll. rE'~son, b~:;ed upon till'! conuuct.
0: =~',' carty to the action. Slip op. at 8. Thus, it: concluded
th:;It 1 t wa:; il'I'l:!llilvallL wh.i.ch party was responsible for the deh.y.
Appellants first contend that prejudice must be established to
Wc1':'':'"IlL L"u:m.i.naLlon o( lI. civil act.ion under Rule 1901. They also
ar.;;\.:.;: that: a case may not be terminat.ed p\lr3uunt to Rule'1901 i'f
t~e j=l~y is attl.'ibutable to the defendant..
7he disputed element. of prejudi.ce does not Clri3e from the
~iztrict Court Administrator a list of all cases:
(1) Which have become inactive cases as
heZ:'f.!ill defined a~ of the closp. uf th!'! pL'eced-
lng calendar yoar; and
(2) Which previoucly became inactive
cases as herein defined but have not thereto-
fore been te1.iminated as herein p~ovided.
1';5 noted in footnote two, former Local Rule :!'55 directed that
~ll c~Yil cases be terminated If no action has been taken for two
yea~3 or more. In contrast:, Local Rule 6035Ia). which replaced
Rule 2SS on A[ll'i1 10;, lQ(Hi. J'I:>quil'P,il bor.h inM:I:.;ol\ ~ do(~kf.lr.
~~ac~ivit.y for at: leact two year~.
[J-8-1991l) - 1
l,mguage of Rule 1901, · bu:; L'athe:- stems from C3fle law setting
rCltl.l\ L!lo.! L'Oilqu t l'..m..nC$ fm: 0:11t:0:1.'il'9 iJ j uuul1l1~nt of lI'JlI pt.o~ up all
moci.,n of t:hll defendant for lack of prosecut ion.
A.lr.hoIlOh
terminations pursuant to Rule 1901 and motians for non pros both
result i:1 chc dismissal of a case fOl' inactivity, ~ eor:h ~ction has
a clstlnct procedure.
Rule 1901 is eS!lenc.ially an administracive cool by which the
cou::-t. through the [;lrothonot~ry, m~y rid the cOllrt doc.kp.ts of stale
;1',,,::e::-;; chat have not been discont inued by chI;! pal:,til:l~. The lCJcal
::u:~~ ~:nplemelltef:1 ther~\.1ncler ,-'\re lIilltended to f.ostf?1'" ~1 imin~l:it:1n of
s:~!~ cases from the judicial system where the parties have failed
t~ ~~oceed and which are car.ried uS open matr.ers because of the
ll\u:'e of Judicial Adminis t J."O don 1901 provides in pertinent
par::
R~~E 1901. PROMPT DISPOSITION OF MhTTERS: TERMINhTION OF
:::ACTIVE: CASES
la) Ceneral ~olicy. It io the policy of the unified
judicial systcm to bring each pending matter to a final
conclusion as promptly as possible consistently with the
character of the matter and the resourcos of the system.
iiher13 a matter ha:;; been inactive for an unroaaonable
pr.riod of time, thQ t;ribl.lnal, on itf.\ own motion, flhall
enter an appropriate order terminating the matter.
(b) Primary Responaibility for Implementation of
policy .
(1) Ecu.:h clIUL'L ur l':UllUt\UIl pll,lCi::; 1:; !Jdllldl'ily L'l,!::;pun-
3~blG for the implementation of the policy expressed in
subdivision (a) of this rule and i:; dirRr.I:Rn 1:0 make
local rules of court for such purposes.
It should be noted that '" "i udgment of nOIl PI'OS" can be
"IlL"~tH.I III r:a5f,lS involvi.ng eit:heI Cl defendant's mocion or upon the
p::-c~honotary':) initiative purDuant to 10c(:\1 rulc:> implementing Rulc
UCl.
(J-8-1998j - 4
.
failure on the pare of any party roo ~eek disndssal or otherwise tu
bring the m~tter to ~ concluoion." l:'a.R.v.A. 1901 Nato.
A motion for a judgment of non pros is the vehiclo by which a
llti~lmt ClsserLs hls CL' her c:ommun law L'ight to a l:easonab1y pcompL.
conclusion to a case. In the companion casp. of Jacobs v. Halloran,
also decided today, we noted that the grant of a judgment of non
prOD is b.:lsed upon the equit.:able pdllclple of lacho:l, which
requires that the adversary suffer harm before a case is dismissed
for inactivity."
We fureher held that, pursuant to the rules or
equity, the party seeking dismissal for. inactivity must do so with
cle~n hands. In thiB case. we must determine whether the same is
true for a dismissal pursuant to local rules implementing Rule
1901. This issue has been a source oJ: confusion in the lower
courts.
Till:! SUIJl:!l'iot' COUt't Clnd tile COIlUllonwelllth Court have' stated,
without analy~i~, that prejudice to the adverse party is part of
th~ test employed to dismiss cases due to inactivity pursuant to
lOCQl rules enacted under Rule 1901. Gee Metz Contractina, Inc. v.
Riverwood Bullders. Inc., 360 Pa. Super. 445, 520 A.2d 891 (1987);
Blair'v. Zoninq Hearina Board of the Townshio of Pi~, 676 A.2d 760
l1\CCOl'uillgly, .:It! noted in footnote one, we rej ected the
presumption of prejudice adopted in Penn pioinq and required that
act:I1i'11 prejudice be shown before a case is dismissed for lack of
prosecution. We find that the weaknollll of tho prp':llllnpt:inn of
prejUdice is exemplified in /l. Rule 190t dismissal. It strains
logic to conclude that prejudice is required for a Rule 1901
dismissal, and at the same time presume prejudice after two years
of inactivity. In at'del' for a p,'lrt;;culnr ca:lf! t.o corne to the
ott:ention of the p1."othonotaJ.j' for Rule 1901 purpose:;, th.. cl1se musL
have already been inactive, at least on the docket, for n p~r;od of
two years.
[.1-8-1998) - 5
. " .c' ~~ .,""'-l-"'-''', ,..., " ~,-' '-. . "'.ot~_.- ,,~ (
'" ..
, , .
.
(i'u. Cmw1th.), ll11uc. g:::anted, 548 Pa, bin, 699 A.2d 736 (El96).
'rh... Super lor Court i.n the in~t.,.mt: Cd:1l'!. hllwever. relied upon
Pi1o~ v. Bally Enqin~arin" StructurAA, 435 PR. mlper. 327, 645 A.2d
282, ~lloc. denied, 539 ~a. 680, 652 ~.2d 1325 (1994), in which a
different approach was taken.
In Pilon, the court found that
although prejudice need be demonstrated prior to the entry of a
judg:r.ent of non pros, an order t:p.I'lIIillaLing an action for inactivity
pursuunt. to .~ local rule "may be elltl:!I'ed by Lila COUtt sua sponte
a~~~r an unreasonable p!!I:iutl ur lUclcLlvlLY even though there may be
;:0 ;::=ejudice to the defendant." & dL 230 11.1. 645 A.2d at 283
n,':, It dist illuui$h~r.'l t',h~ t.P'I'mi ni'lt.ionfi by observing that an order
ter~:;:ating an action pursuant to a local rule is u final appeal-
able order whereas an order entering a judgment of non pros can
cd," be c::hlillenged by filing D. petition to open purouant to
!Ja,R,C,P.3051.7
Gur COUrt was faced with a Rule 1901. difimilisal ill Stndt.ll v.
CL':"~:"'!ll'_V C!J!I!J['dl Hospitlll, 529 Fa. 360, GOj A.2d 1011 (1992).~
I;1 t:l~e Opinion in SUPPOI't of Affirmance, Mr, ,Tustice (now Chief
'In Judge Olszewski's dissenting OPJ.n10ll, he concluded that
becGluse the two types of terminations serve nearly identical
p\lrpOSF.'::I. PtI.R.C.P. 3051 applies in all cases in which relief trom
a J~dgment of non pros is sought, whether the judgment has been
';<1\1,..,.; 0:<..1 by prm'tr:.lpp. II:' "Jf right or by the COUL-t following d
heiir:.ng.
Wp p.xprF.'55 nn npininn on the issue of whether a petition to
open pursuant to Pa.R.C.P. 3051 need be fil~d to appeal a Rule 1901
ter~lnation as that question is not before our Court.
'. Streidl was decided the same day as Penn Pipinq. penn
?i:l:r.q, however, did !lut i!lvulvt! th.: l',,;,rminatioll of Cl case pursuant
to Rule 1901 as the local rule implementing Rule 1901 w~s rescinded
a~ the tima tha trial court dismioo~d the case.
i
[J-8-199SJ - ti
.
.
"
.
.
Justice) Fli:lherl:Y rej ected the ."rgument that prejudice is not
required in Q rtule 1901 dillmisstll and :5l::ated thaI;. . [i] t doell not
matter whether the prothonotNrr notifies ~hp. partip.R of itR int.p.nt.
to terminate the case, or whether the non-delaying party petitions
for dismissal; the same standards aoo1y,." ~ at 362 n.~, 603 l\.2d
at 1012 n.2 (emphasis ~dded).
In the Opinion in Support of. ReversaL, this author found that
beei:luse the defendant made no claim of prejudice, the case should
not have been terminated by i:l judgment of non pr03. Thus, although
the members of the Court disagreed uS to whether the case should
have been dismissed, we agreed that prejudice to the defendant was
a. component of u Rule 1901 dismissal.' The issue which divided the
Court in St.reicH was the application oJ: the ~enn l'ioinq presumption
of prejudiee.1D
The Note to Rule 1901 supports the conclusion thllt. ptFdm'li r.P.
is ~e~uir~u b~ture a c~~e is terminated for inactivity,
The Noee
states that the rule has no effect on the substantive law. The
substantive law prior to tho promUlgation o( Rule 1901 required
t.hi'l~, the adversary ,be pt'ejudic:ed by the delay before 'a case is
dismissed for inactivity. James Bros. Lumber Co. v. Union Bankinq'
'counsel (or Appellee Dr. Eagle acknowledges r.har. a majority
of the Court in Streidl agreed that pL'ej ud.i.ctl it! L ~t.aulLt:~tl (UL' /;I
Rule 1901 dismissal.
I~The Opinion in Support of Affirmance, citing Penn Pioina,
presumed prejudice as the delay exceeded two years. In the Opinion
in Support", of Reversal. T. again noted my dillagreement with the
adoption of the presumption of prejUdice and stated that my
concerns were magnlfled In cI Ccll:HI cu:isluy (L'UlI\ Lilli ~drninistrative
ar.r.ion of t,ho pt'othont.ltary i:lcting under ~ local rula implementing
Rill F.l 1901 ,
["'-8-:1.998) - "
;::
"'I
"
& Trust Co., 432 Pa. 129. 132, '1.47 A.'I.d 5tl'l, 589 (1968)." This
requirement I.;UllLll1u\i~ .Ln ...F.Ft:'!l::t, 1l1,t.Wl t.hR~,ll.ndillg the cnactment of
Rule L!iO... We thF.lref.ora concll.lr.ll:l I',hrit. pr"I'Ijlldice ill reQuit'ed before
a Ci:l.se i:; diilmisscd for inactivity.l~ II
Accordi ngly, the threll pcH't test appl ir.llble to tile defendant 'll
mot ion for non pros in Jacobs appli.es hF.re. To dismiss D. case tor
in~r.t~v~~y there must firsc be ~ lack of du~ ujllgencc on the part
of tr.o plaintiH 111 failing to proceed with reasonabl e promptitude.
Sec::::-.d, thll plaintiff must have no compelling reason f.1)r the delay.
Fl~ally. the delay must cause actual prejudice to the defendant.
:;li~ :::p at 9. We further ho 1 d that eQui table principles should be
r.nr.s:rlered when dismissing d C/l5P. for inactivity pursuant to Rule
1901,
H=~e, the record rcvca15 a period of inactivity from AuguQt
31, 1992 to October ,,~. 1CJ95. Appellallts ell'QUe that a considerable
pcr::cn ot the delay was attributabl~ Lu App~llees becaU5e they
failed t.u dmoly produce an l<-l'ay which was ct'itical to the callr.-. H
IIRule 1901 became effective em May 10. 19'13, Clnd w.,s amended
on January 18, 1974.
IlThis rule shall apply to all pending cases where the issue
ha3 been preserved.
:lt~e note that Appellants preserved th~i r ri ght: t:o c:hallenY\i
the dismilllldl u( Lhe l!ctiol1 by ~'e5ponding t.n t.hp. court order
d:.::ec:ing them to appear for a hearing on whether tit", case shoulrl
be t.!L1ninatp.d f(,l" ini'u,:r,ivity. Had they !lUl llone: sa, their right to
challenge the dismissal would have been waived and the court could
have dismissed the act:ion without any showing of prejudice to
Appe:lees.
":::i: is inteI'~!:ltlng lO nQte tl:ai: lIppF.llauL::t rely :ooldy (,11'I the
m~s:nng x-ray to explain the dcla" in prosecution. Appellants'
councel conceded at the termination hearing that any o~her. delays
[J-S-1998] - l3
We Una en",e c.he trial coutt':3 concJ.usion that. the "mi:J:,ling" x-I'ay
did not nffect the outcome of the case is supported by thQ rGcord.
The l~w is settled th~t it is plaintiff, not defendant. who
bears the risk of failing to ~ct within a reasonable tlme to move
a case along. Pennridae Elec. v. Souderton School, 419 Pa. Super.
201, 209, 015 A.2a 95. 99 (1~~2). Appellants were given thirty-
uint! X-l'tlY:l tl.lol1\.1 with tl. dtlLtllltltl invt!ulur.v, which would htlv~
revealed that the particular x-ray they sought was not included.
Appellants apparently did not inunediately examinl:! thl:! x-raYl5 or the
inventory because they did not request the particular x-ray until
ten months later in September of 1993. Moreover, it is undisputed
that during thia time AppellantG p03GoGGed the radiologist' D
111I.tlr.'l)L'tlLtlLlUII UL' wL'll.Ltlll tlXV1~llal.lon <:J( Lhe "missing" J<,-I:{JY.
Thu:l, we conclude that Appcl1anto lacked duo diligence in
failing to procee? with reasonable promptitude and ehat no
compelling rea~on exi~ted for the delay. We must next dete~ine
whAr.hAr I\ppA 11 AAR WArA prA; un; ."lAn by AVAnhfl wh; nh onnurreri nil'!"; nl]
the rip-lay in Ilt'ORp.r.l1tion, RIlRd fir:a l1y, t:hp. np.at,h of Or, Krl1[lFlr.
At the termination hearing, Appellees contended that Appel-
lant's counsel listed Dr. Rruper as a possible expert witness in
eheir answers to interrogatories and that due to his death, they
were precluded from die covering the findinge of hie examination,
his opinion concerning liability, causation and damages and the
details of the history provided to him by Daniel Shope. The trial
were "dUe to inadvertence on [her] part," (N.T. 12/1/11)l)!; at: 4).
and were "entirely fherl doing." IN.T. 12/1/1995 at 121.
[J-B-1998] - 9
courL l:;pl:lr.:ific~lly tound that Appellees were prejudiced by the
death of Cr. KrUpl'll'. We find no abuse of diocretion on th~ part of
the trial c::ourt in this regard.l~
For the reasons SAt forth herein, the order of the Superior
Court is affirmed.
\
\
I~Appellanta orgue that Appellee~ were not prejudiced by the
dec!.lLh uf Dr. Kruper because he was not the treClting physician, was
not depOAp.d and was not listed as an expert witness. These s~e
ar!;)'UInGnts were made before the trial court and t'p.jected. The trill 1
court obviously credited the Appellees' version of the importance
of Dr. Kruper as a witness.
[J-8-1998] - 10
, ':. ' ..~_ -..,.....,.1"-/;..~-.:..,..,., .. , " ~.~ I . _' , ~. -.' ". u-:- .f<~~~
." ,alt.",,",", .. '," c_,., 11:\
i U'" ,""'>.Ow \!JJ
exhibit E
#9
JERRY E. HINKE AND
PEGGY L. HINKE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
JAY R. WAY & JAY MICHAEL WAY NO. 95-0576 CIVIL TERM
IN RE: ARGUMENT COURT
BEFORE HOFFER, P.J.. OLER, J.. GUIDO, J.
AND NOW, this
ORDER OF COURT
n~
day of APRIL, 1998, in view of
the recent decisions of the Pennsylvania Supreme Court in Jacobs
v. Halloran, 18 E.D. 1997, and Marino v. Hackman, 193 M,D. 1996,
and Shope v. Eaale, 119 M.D. 1997, Defendants have requested
leave to withdraw their Motion for Non Pros and refile it to
.
conform with the requirements as set forth in those cases.
Plaintiff's objection to this request is noted. Nevertheless, it
is ordered and directed that Defendant is granted leave to
withdraw the current Motion For Non Pros without prejudice and to
refile it within thirty (30) days.
By the
Mark S. Silver, Esquire
For the Plaintiff
Edward E. Guido, J.
Michael M. Badowski, Esquire
Michele J. Thorp, Esquire
For the Defendants
lsld
--,
I=vhlhlll:
.. II ...
..
.
~ I' .
AFFTDAVTT
I, Michele Thorp, Esquire, as counsel for Defendants
Jay R. Way and Jay Michael Way, swear and affirm as follows:
1. I have attempted on numerous occasions to contact
Defendants via telephone, but have not been able to reach
Defendants, nor have I been able to establish if the phone
numbers are current;
2. On May B, 199B, after I was unable to reach either
Defendant by phone, I sent a letter to Defendant-Operator Jay
Michael Way at his last known address. A copy of said letter is
attached hereto. To date, Mr. Way has not responded to my
letter, nor has the letter been returned.
Date:
!5 lIt('.> h?.>
,
I, Michael M. Badowski, Esquire, as counsel for
Defendants Jay R. Way and Jay Miehael Way, swear and affirm as
follows:
1. I have attempted on numerous occasions to contact
Defendants via telephone, but have not:be~n able to reach
Defendants, nor have I been able t
numbers
Date:
are current.
'5/;1>/911
I I
'4 .., "-
.
"
A
CERTIFICATE OF SERVICE
I hereby oertify that I have served a true and correct
copy of the foregoing document on all counsel of record by placing
the same in the united States Mail at Harrisburg, pennsylvania,
first-class postage prepaid, on the It(:ti day of May, 1998,
addressed as folloWSI
Mark S. silver, Esquire
Law Offices of Joseph A. Klein
100 Chestnut street, suite 210
Post Office Box 1152
Harrisburg, Pennsylvania 17108-11152
(Counsel for Plaintiffs)
REYNOLDS & HAVAS
A professional corporation
nYI
fflJtAJ /J//. ~d~
aron'Dell-Gallagher,
secretary
()
::)
",--",I
:'~tp ;u 1~-61~8:,~i"-(Tl)
(/0)
IN THE BU~R&ME COURT OP PENNSYLVANIA
MIDDLE DISTRICT
DANIEL E. SHOPE AND SHONNA L.
SHQPP., HIS WIPG,
:No. 119 M,D. Appeal Docket
: 199'1
I
I
I
I
I
I
;
i
Appellants
:Appeal from che Order of the
: Superior Court dated March 12,
:1997, at No. 0063 Harrisburg
:1996, affirming the Order or
: th~ CUUL'L. of COllU1lon Plee.:l of
: York County, civil Division,
: dated December 21, 1995, at
: No. 91 SU 05114-0'1
v.
PERRY A. EAGLE, M.D., AND YORK
HOSPITAL,
Appellees
.
: SUBMITTED: Janui:ll:Y 27, 1990
OPINION
MR. JUSTICE ZAPPALA
DECIDED: April 2, 1~98
This appeal raises the issue of whether prejudic~ t.u L.hu
defendant a5 a re~ult of delay in prooccution is required before a
case may be dism;SRp.o pursuant to locQl ~ules imp1ementinq~Rule of
Judicial Aclrninistration 1901. I
Wl:l dl'lSwer this inquil.'y in the
affirmative and hold t,hZlt, tho standard applicable to tp.rm; nat,; nnn
for inactivity pursuant to a defendant's motion for non pros
applies equally to d,i:;misoalo pursuant to R\ll a '1901. As Appellees
have established prejudice, however, we affirm the decision of the
Superior Court.
011 .1\11y 26, 1990, Daniel 1'1. Shope WIlS involved ill UII "ul;VI1IO
'The companion cases of Jacobs v. Halloran, __ Pa. __, __ A.2d
__ (199B), and M~rino v, Hackman, __ P~. __' __ A.2d __ (199B)"
also decided today, involve relaced issues. In Jacobs, we abandon
the presumption of prejudice first enunciated in Penn r>ipinq. Inc.,
v, Il1::lUl'dlll:l< CUIIIU...."V or North lImericrl, ~29 Pa. 350, 603 A.iJd 1006
(1992), and hold that the defendant. must. establisll actual prejUdice
by the delay in prosecution. In Marino, we hold that non-docket
activity may be examined in determining whether a compelling reason
exists for the delay.
I
I
I
i
'.
i I
1
,
\1
.
.
.
, , bile accident and ft'llctured his t'ight leg. He WMl subsequently
treated by Df. Pet't"j A. Eclyl.;, N.D., at, YorK H"spic.c.l. On October
;)), 1991, Danio.1 ,lnd hi:; wif~ (App~ll<mtsl, filed Cl. medical
:t'dJ l" .,11::1., i":I~ d.l,d cot'porate negligence .:action o9ainst, Dr. Eagle and
'lork HOSl,ital (Appellees), alleging tholt Dr. ),;rlqle negligent',ly
trp,olted Daniel's leg,
The docKet reflects thot'. a tlubpcena ~/l.IS i:;su~u Ull August. 31,
1~92, The ne:<t entry was an octobet' 25, 1!.l!J5 court ord.n' dirl?ct'.ing
thc polrtiea to appear Eor a hearing on wheth8r the ~ase should be
t;crm1.:'lil tcd for ill<lcL.i.vity. Durincr t.hp. period of in.:lct',ivity, Dr.
Kr'.lp(!::, an orthopedic surgeon who had o::,am; nen Dllniel after Dr.
Eagle'3 allegedly negligent treatment, died.
At the termination hearing, Appellant~ orgued thaC the delay
In p::oS"lCUt..i.ulI was partly attl'ibutable to Appelleos bccaulJc they
f<1il;;c to timoly prodl\cp. .:In 'Il-rilY whi r.h \~ilS crit ieal LU L11e case.
'rh,,, t::1.Lll court: found chat the missing x-ray dill llul d((ect the
outc,j;:lC of th~ C<lse, thoJt the dt1lay was not choJrgeable to Appellcc:l
,:mr.l r.h.n ~hA nHilr.h or Dr. Kruper D1:'ejudlced .;ppellees. According-
11', it terminated the action for lack of activity pursuant to Local
Rule 255(bl.~
'Rule 255 provides:
(al All civil cases filed in this court which shall
nul have been rl3r.lucecl t.O j ud!;J\l\ent or bna.1 ('IrnAr, ;lOci in
which no action has been taken for a continuous period of
VII" (21 years or more preceding the end of each calendar
ye~r. shall be automatically terminated as herein
provided, in accordance with ?o,R,J.A. l~Ol.
(b) On or before the tourth Frida'! of .June of each
c<llcndllt' year, the Prothonotary ahali furnish to the
[J-8-1998j - 2
" ,- - ' '".--
~ ' .' " , , . . - ~
. .~ ......~~ ' -,-
, ---.. .-' ,-
The Superior Court attirmad, holdinq that althouah the trial
court, /lppliCld a l'ascindClo vp.l'sion of the locul LUlt::, it did lIuL
ahullo ita rliccrotion in tot'l)linD.ting tho CDGll.'
It found that
because the trial court ordeted the terminal:.1on purouant to LI local
rule, rather than ~nt~l'inlJ t\ jl\domli'nt:. of nnn prol;l for r.1oC1kAt,
inactivity purl;uilllt. Lu Penn plolni'l v , Insurance ComOllnv of North
America, 5:l~ Pa. :l~U, l:iU:.l A.2d 1006 (1992), no prejUdice to
Appellees need be demonstrated. It further held that Rule 1901 and
the local l'ules promulgated thereunder are designed to eliminate
cases chat have become stale for anv reason, bLlsed UPOll l:he comluct
of an\' party to the action. Slip op. at 8. Thus, it concluded
thut it W/;l:; irrli!lli!vanL which party was responsible for the del~y.
Appellants first contend that prejUdice must be established to
Wi.lLL'dIlL Lt:!.l:mlnaLlon oC a civil (Action. under Rule 1901. They also
argue that a case may not be terminated pursuant to Rule "lDOl i'f
the delay is attributable to the defendant.
The di:lputed element, of prejudi.ce doc:! not ari3e from the
District Court Administrator a list of all cases:
(1) Which have become' inactive cafles as
het'li!ill defined al:l of thl'! closli! of thli! preced-
ing calendar yoar; and
(2) Which previouG1Y became inactive
cases as herein defined but have not thereto-
fore been te1.1ninated as herein p~ovided,
lAs noted in footnote two, former Local Rule 255 directed that
ull civil cases be terminated if no action has been taken for two
years or more. In contrast, Local RUle 6035(a). which replaced
Rule 255 on APl'il l!i, 1'l'l6. T'I~qllil'f.lR both in,1'::1:,;,:") 1l!!!i dl1r;kf.l~.
inactivity for at leact two yearo.
[J-8-199B) - :I
l.::lnguage o~ Rule 1901,' bu:: L'ather stp.ms from ca:::e law fletting
Conh Lh.., t't.::qull'l~nll~ill~~: fOL' (mtel'in\) u JuLlUllllmt. of 1I()1I pro::! ll(Jlm
motion DE t.ho d~f~nd~nt for lack of prosecutian,
A 1 t,hr.11I0h
terminations pursuant to Rule 1901 and motians for non pros both
result i~ the dismissal of a case for inactivity,' sonh .::lction h03
a disClnct procedure.
Jl.Ulo 1')01 is ossonc,iallY an administrative tool by which the
,:OUl:C. through the I?rothonot:lry, m"y rid thl? CC.UL't; r.!od<p.C s of stale
ma.;t;e:::: chat have not been discont inued by chl.1 [Jtlt,t,il.'i:l. The lc,>c.:t\l
L'u1.;!'. :i.mplcmo;:nte.;1 tllf~reunr.l"'t .:Ire "illtl?ndp.r.I to F."stp.r l?limination of
st~lc C~30Z from the judicial system where the parties have failed
to p~ac~~d and which are car.rip.o nr, opr,n mat.t.ers because of the
'Ru:e of Judiciol A~ninistrotlon 1901 provides in pertinent
par.t:
lUlLS 1901. PROMPT DISPOSITION OF HNl'TERS: TERMIN^TION OF
:rIACTIVE CASES
(al General Folicy. It io the policy of the unified
Judicial system to bl."ing each pending matter to a final
conclusion as prOmptly as possible consistently with the
character of the matter and the resourcos of the. oystem.
v/har13 <l matter h<ls been inactiv~ for an unrcaoonable
[',-,dad of time, the tribl.mal, on it.;:, Q~m mot.ion, f,1h.;ll
enter an appropriate order terminatinq the matter.
(b) Primary Respontlibility for Implemontation of
policy.
(1) Ei:H:h l.:lIUL'L uJ: t;llllUIIUll [Jl>.ld:S 1:; Ildllli:lI:ily t'~l:l[Jun-
sible for the implementation of the policy expressed in
subdivision (a) of this rule and i~ oirA~~Ad to mak~
local rules of court for fluch purposes,
" It should be noted that l.J. "j udgment of non pL'OS" can be
"lILt::t<!L1 ill r;i15eS involvi.ng t!it.IIl~L' d cletendant' s mocion or upon the
prothonotarz"s initiative pursuant to local rules implementing Rule
1901.
(J-B-199B] - oj
"
cailure on che parc of any party to seek dismi55~1 or otherwise tu
bring the m~tter to a conclu3ion." Va.R.J.A. iDOL Note,
A motion fo~ a judgment of non pr03 is the vehiclo by which a
11 t iyant asserLs his OL' her commun law L'ight to a L'oilsollably pL'ompL
conclusion to a' case. In the companion case of Jacobs v, Hillloran,
also decided today, we noted that the grant of a judgment of non
for inactivity."
We 'further held that, pursuant co the rules or
proo is b",sed upon the equit.:.ble p.r.im:.i.ple ot: l/lchc:o, which
requires that the adversary suffel' harm before a case is dismissed
equity, t.he part.y seeki.ng dif.1m:issal for. inactivity must do so with
clean hands. In this case, we must determine whether the same is
true for a dismissal pursuant: to local rules implementing Rule
1901.
This issue h~s been a. source oJ: confusion in the lower
court,s.
Thl:! SUIJl:!I'10I: COUl't und the COll\llIonwealth Court have "stated.
without analY3i3, that prejudice to the adverse party is part. of
t.he test employed to dismiss cases due co inactivity pursuant to
10CQl rules enQcted under ~ule 1901. Gee Metz ContractinQ, Inc, v.
Rive!'wood Bui.lder~~, Inc., 360 l'a. supp.r, 445, 520 11,7.0 89'L ('1.987);
BlalL' v. Zoninq HearinQ Board of the Townshio of pike, 676 A.2d 760
~1\ccoL'uinyly, .:1:1 noted in footnote one, we rejected the
pre3umption of prejudice ~dopted in Penn pipinq and required that
actu/ll prejudi.ce be chown Defore a case is dismi3sed for lack of
pl'f.lsecution. We find that the wcaknetlo of the prp.:mmpt:ion of
prejudice is exemplified in a Rule 1901 dismissal. It strains
logic tu conclude that prejudice is required tor a Rule 1901
dismissal, and at the same t.ime presume prejudi.ce after two years
of inactivity. In aL'dcl' for a pllrt;:iculC1r ca:lp. t.o come to the
attention of the pL'othonotl:u:y Eo);' Rule 1901 pU1:'pose:s. th,;, case ,'\usL
have already been inactive. at least on the dock~t. for ~ ~~r;od of
two year!;,
[,T-A-199AJ M 5
..
,
(1'<.1. Cmwlth,), l111oc, grant~d, 548 I'Ll. bIn, 699 i\,2cl 736 (1!l96).
'rhe Suf,lliicloc Court in the in:;o;t",nt case, h\lWeVet:, relied upon
Pil()!'l 'f, I?,all'l EnqinO:l?!'inn 5t:rl\r,'t\lT'''~, 4:J~ Po'!. 111111p.r. :127, 645 A.2cl
28~, ulloc, denied, 539 Po. 680, 652 h.2d 1325 (1994), in which a
di f fercnt approach was token,
In pilon, the court found that
although prejudice need be demonstrated prior to the entry of a
judgment of non pros, an order t.p'I'lllinaLlng an action for inactivity
purouonl;, to ,') loc:al rule "may be elltet'ed by the court sua sponte
a::ce:c iln unreasonable (Jl!r:iutJ ur 11l.:lCLivlty 8VGn though thcl.'e may be
r,o F-;:cjudice to the defendant.' & dL 230 n.1. 645 A.:!d at 283
n,':', rt dh,till!]l.ll$hp.r.l t,h8 t.p.rminlll",ions by obs~cvino that an order
term~cating an action pursuant to 6 local rule 1a a final appeal-
able order whereas an order entering a judgment of non pros can
c,r.J~,. be! chflllenged by filing a petition to open purouant to
!JlI,R,,7,1'. 3051.'
uur Court WDB faced with a Rule 1901 dismissal in 5treidl v,
C,'''''<r'l!il v G.'IIl!l'rll Hos\1it,11, 529 Pa. JGO, GOJ i\.2d 1011 (1992).R
In the Opinion in Support oC Affirmance. Mr. Justice (now Chief
'In Judge Olszewski's diosenting o(JlnJ.oll, he concluded that
because the two types of terminations :serve nearly identical
purposes, po.R.C.P. 30~1 ;~flfllieG in all cases in which relieJ: trorn
u judgment of non proo io Gought, whethor tho judgment has been
',,"1..1,,'1~11 l;.y pr,:H;H::,L(lP. ilfi nf right or by the: court following a
r.n,'irlng,
H.. BX[lrF."SO;; nn opinion on the issue of whether a petition to
open pursuant to Pa.R.C.P. 3051 ne~u b~ flled La app~al d Rule 1901
terminotion as that question is not before our Courc.
" streidl was decided the same day as Pc-mn Pipinq. penn
;>ioinq, however, diu nut invulve th.. t.::cmination of CI ClJse pursuant:.
to Hule 1901 as the local rule implemonting Rule 1901 W<J.::; re::;cinded
at the timR thR tri<J.l court dismissed the ca~e,
[J-O-19!lSI - 6
.
, .
.
Juutice) fli:lherty rejected the o';lrgument that pI'ejudice is not
required in Q [lule 1::>01 dillmi::lI:l.:ol /lnd :Jtatcd that "[iJ t does not
matter whether thH [It'othon(')~,i1:.1 nor.ififlS the p,;rl:', i AF. of il:l; i nr.p.n~.
to terminate the case, or whether the non~dclayino par.ty pctitiono
for dismissal; the same standards anolv." ld.... at: 362 n. 2. 603 A.2d
at 1012 n,2 ((;!mph.:lsis added).
In tllc Opinion in Support of Revers.::ll, this .::luthor found that
bec.::luse the defend.::lnt m.::lde no claim of prejudice, the case shoUld
not have been terminated by ~ jUdgment of non pros. Thus, although
the members of the Court disagreed as to whether the case should
have been dismissed, we agreed that prejUdice to the defendant was
~ component of a Rule 1901 dismissal.' The issue which divided the
Court i.n St.reidl was the application 01: the !lenn l'ioinq presumption
nf prejudice.lo
The Note to Rule 1901 supports t.he canclllllion r.lmr. ptejllcii r:A
.il:! L'et,iu.iL'l::u lJetuI'tl tl CU::Itl is l:ermino.ted for inactivity.
The Note
states that the rule has no effect on the substantive law. The
substantive law prior to tho promUlgation o( Rule 1901 I't;!quired
t:hR~, t.hF.l adV8l'So.'I!Y be IJt'ejudiced by the delay before a case is
dlsmissl;!d for inactivity. James Bros, Lumber Co, v. Union Bankinq
'CoUnsel ror Appellee Dr. Eagle acknowledges r.har. a majority
of the Court in Streid1 agreed that pL't:judll::~ .i:; L~yulL'eiJ rUL' tl.
Rule 1901 dismissal.
lOThe Opinion in Support of Affirmance, citing Penn pinina,
presumed prejUdice as the delay exceeded two years. In the Opinion
in Support. of RF.!vF.!rsa 1, :r. again noted my dioagreement with the
udoption of the presumption of prejUdice and stat<:ld that my
concerns were nlClgnlfled ll1 c! Cc!::lll l;lI:i::llllY (I:UIII loll!'! administracive
ac:r.ion of t,hc pI'othonr.ltary i:lcting under a local rule implementing
RlIl f;l , !lOl .
[J-B-199tlJ - "
:
.
, ,
.
" 'l'r\lst: Co., 432 Pa. 1~9, 132, 247 A.2d ~~'I, 58!! (1%B) .11 Thil;
requirement ~ulll.illUU~ in ...f.ft~Gt. n"t,wi t,h:;~,llndilllJ the enactment: of
Hula l~IO:. We th"'r...F.orl~ r.:oor.:),l,\r,ll;\ I',h<lt, pr'I'<jllc1icc 1:; requir:ed before
Co case 1:; db:nissed for in.:lctivity.l: II
Accordi.ngly, the thrc~ peH't t.est applicllble to the defendant'!1
mot ion for non pros in J/lcobs appl j,es hen:. To di~mi:3:3 a C.:lse tor
1Oi.1r.t. tvl.l:J' there must: fit'st be a lock of llUr~ I.1j 1.ig~llce on the part
of the plaintiE ( 1n failing to procliled with reasonabl e promptitude.
Second, thll plaintif f must have no compelling reason f.Ol" the delay.
F'in(l~l~'. the delay must cause actual prejudice to the defendant.
S1ii? op ar. 9. We further hel] d that equitable principles should be
~onsldered when dismissing d caSH for inactivity pur:suant to Rule
1!l01.
Here, the record reveals Q period of inactivity from August
31, 1992 to IJctOOf,lr /oS, l'l95. Appellallt:; elL'OUt:! that a considerable
pcrt:on of c.he delay was ac.tributabll:! l.u Af)f)t::llees becau5e they
fili1t:u t.u l..l.nll::1y produce an ;<-I."ay which was ct'itic<tl to the caoo. H
11Rule 1901 became effective on Nay 10, 1973, clnd W,"lS amended
on J~nuurJ' 18, 1974.
11This rule ShDll apply to all pending Cilses where the issue
has been preserved.
:l\'le note that Appellants preserved t,hoi r ri ghr, 1:0 challellge
the dismis~H11 ur Lhtl t1ct',ioll by re5ponding to l'.hp. court order
directing them to appear for a hearing on whether the ease should
be tI.!L'minatr;.r.l for ino'lr:r.ivit'.y. Had they !luL done so, their right to
chullenge the dismissDl would have been wdlved and ~he court could
h/we dismissed the action without any showing of prejudice to
Appellees.
"It:. is intet'~stin(J lO nol'.Po that Appf!llulll.S rely sul~ly on the
mls:;ing x-ray to explain the dela:; in prosecution. Appellants'
counccl conceded at the tormination hearing that <toy o~her. dalays
{J-8-1998j - 8
.
, .
.
.-.;....
,
--.. \"
, <'
We tinct c.11<lC. the I:riul coutt's conclusion th~i. t.he "mitl:.lillIJ" x-ray
did not "Hoct tho olltclJmo of. t.ho caoe i", ouppo1..tod by t.hn record.
The l~w is settlad th~t it is ~laintiff. not defendant, who
boarn the riSK of failing to act within a rp.asonabl~ time to move
a case along. Pennridae El~c, v. souder ton school, 419 Po.. super.
201. 209. &15 A.2d 95. 99 (lYY2). APpe!!ant~ wcre given thirty-
l1iu~ X-I.'uy:l U1UIlH with u dl:lt.uil~U 11lvtHLl:.UI.'V, which would huv~
revealed that the particular x-ray they sought waS not included.
APpellants apparentlY did not immediatelY e;<amin~ th~ ;<-rI.1YlS or the
inventory because they did not requeGt the particular x-ray until
ten monthS later in September of 1993. Moreover, it is undisputed
that during thi~ time AppellantG pOGtloSGcd the radiologist'::;
illL~q.lt'l:lLclL1Ull UL' wL'iLLt;l1l tlxplpl\i11.1on o( t.ho;: "1\\iss1ng" ",-tiJ,Y.
Thuo, we concludc thZlt APpellant:; lacltcd due diligence in
failing to proceed with rea60nable promptitude and ehat no
compelling rea50n cxiated for the delay. We mU5t next determine
whflr.hfll" 1I[1[lflll eflR WArA [IrA; \lil; ,':An hy flVf\nt'.R wh; r.h or.r.\lrren 1'1\11"; TIC]
thl'! delay in {lroRer.\lt',ipn, s{led f.ir-i1ll y, t:he cieilt',h 0 f. Pr, Krll{lAr.
At the termination hearing, Appellees contended that APpel-
lant' s counsel listed Dr. l\ruper as a possible expert witness in
their answers to interrogatories and that due to his de~th, they
wore prcc1udcd from die covering cho findingo of hio cx~rnin~tion,
his opinion concerning liability, causation and damages and the
details of the history provided to him by Daniel Shope, The trial
were "due to inadvortcnce on lhlilrl pOort." (N.T. 12/1/11)<)5 ill:'. 4),
and were "entirelY [herl doing," tN.T. 12/1/1995 at 12) .
lJ-B-l'l9Bj - 9
r
.'
.
,
..' ,
cQUl'L ~plddfit.:<J.lly tound that Appellees were prejudiced by the
death of Dr. KrUpl'll'. W8 find no alms>.! of diocrct ion on the part of
the trial court ,in this regar~.I~
For the reasons set, for-tn herein, the order of the superior
Court is affirmed.
I~APpellanto argue that Appellees were not prejudiced by the
deaLh uf Dr. Kruper because he was not: the treat.ing physician, was
not depofied and WQS not listed as an oxpert witness. These same
ar!Juments were made before the trial court and rejected. The trial
court obviously credited the Appellees' version of the importance
of Dr. Kruper as a witness.
(J-8-1998] - 10
.
.
~
,
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t_:.:
@UN 2 3 1998
'\
JERRY E. HINKE and PEGGY L.
HINKE, husband and wife,
plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
: NO. 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY,:
Defendants JURY TRIAL DEMANDED
o R D E R
AND NOW, this
, 199B, upon
day of
consideration of the Motion of Defendants and the Plaintiffs'
Response thereto, it is hereby ORDERED and DECREED that the
Defendants' Motion is DENIED and Plaintiffs are directed to file
their Complaint,
BY THE COURT:
J.
,..,_....,...,..;..;..:..
JERRY E. HINKE and PEGGY L.
HINKE, husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-576 CIVIL TERM
v.
JAY R. WAY and JAY MICHAEL WAY, :
Defendants JURY TRIAL DEMANDED
RESPONSE OF PLAINTIFFS, JERRY E. HINKE AND PEGGY L. HINKE
TO DEFENDANTS' MOTION FOR JUDGMENT OF NON PROS
1. It is admitted that this case arises out of an automobile
collision which occurred on February 10, 1993.
2. It is admitted that on February 3, 1995, Plaintiffs filed
a Praecipe for Writ of Summons in the Court of Common Pleas of
Cumberland County, Pennsylvania, naming as Defendants therein the
within Defendants Jay R. Way and Jay Michael Way.
3. It is admitted that with respect to Defendant Jay R. Way,
Plaintiffs did file a Praecipe to Reissue Writ of Summons on March
3, 1995, as service of the Writ had not previously been effected on
said Defendant.
Service of the Writ had been effected upon
Defendant Jay Michael Way on February 23, 1995.
4. It is admitted that on or about April 18, 1995, Sheriffs'
Returns were filed in this matter; one confirming service of the
Writ upon Defendant Jay Michael Way by the Sheriff of Cumberland
County on February 23, 1995; the second confirming service of the
Writ upon Defendant Jay R. way on March 31, 1995, by the deputized
Sheriff of Bucks County, Pennsylvania.
5. It is admitted, in accordance with Exhibit "A" attached to
Defendants' Motion, that the last docket activity in the within
case was entered April 18, 1995, but for Defendants' having filed
1
their initial Motion for Entry of Judgment of Non Pros on January
27, 199B.
6. It is admitted in accordance with Exhibit "A" attached to
Defendants' Motion (docket entries) that no Complaint was filed by
Plaintiffs between April lB, 1995, the date on which Returns of
Service were filed by the Sheriff, and January 27, 199B, the date
on which Defendants filed their initial Motion for Entry of
Judgment of Non Pros.
7. It is denied Plaintiffs have failed to pursue this case in
any manner. To the contrary, Plaintiffs have secured, inter alia,
the following:
(1) medical records and numerous medical reports
with regard to both Plaintiff-Husband and Plaintiff-Wife
(whose course of medical treatment as a result of the
injuries sustained in the within collision is extensive)
which are not filed of record;
(2) criminal history with regard to the several
charges prosecuted against Defendant Jay Michael Way as
a result of the collision involved in the instant case,
including but not limited to his pleas of guilty to the
charges of:
(a) Driving Under the Influence;
(b) Unlawful Possession of Drug paraphernalia;
(c) Accidents Involving Death or Personal Injury
(leaving scene of accident);
(d) Driving Under Suspension, and sentencing for
the same (See Criminal Docket - Cumberland County,
No. 311 Criminal 1993).
As well, Plaintiff Peggy L. Hinke has only recently reached a
plateau in her recovery, albeit not a full and complete recovery
from the multiple injuries sustained in the instant collision, and
has ceased further scheduled treatments for the same
2
notwithstanding her continuing to suffer from the results of those
injuries, returning to her treating physicians on an as-needed
basis. As a result, it was unknown which prior medical reports
were complete with regard to her condition, state of recuperation,
and prognosis.
While it is accurate no formal discovery was conducted and no
depositions were taken, the Pennsylvania Supreme Court in the
recent case, Marino v, Hackman. et al., No. 193-1996, Slip Op.
(M.D. Pa. April 2, 199B) held:
Although the docket provides an empirical, easily
verifiable criterion to trigger review of a case, it is
too crude a mechanism to distinguish truly inactive,
stale cases from active ones where activity is not
reflected on the docket. Dis\l\issal of a case is far too
harsh a result when the case is not actually stale but
was moving slowly forward. (Slip Op. at p.6)
8. The alleged insolvency of Defendants' insurer, Quaker
City Insurance Company and assumption of control of the file by the
Pennsylvania Property and Casualty Insurance Guaranty Association
are factors which, if accurate, are independent of Plaintiffs'
cause of action against Defendants and are wholly beyond the
control of either the Plaintiffs or Defendants in the instant
action,
Further, the insolvency of Defendants' insurer and assumption
of control of the file by the pennsylvania property and Casualty
Insurance Guaranty Association would have occurred at the time it
did regardless of the status of Plaintiffs' case and is thus
irrelevant to any determination in this case. Plaintiffs exercised
no control over nor did they have any input into the business
3
, . . ' -..'- ,--'-. '. , . "'. . ...,,--;-;:' ~..
, ' . "
decision of Quaker city Insurance company and can thus not be
charged with any alleged (or suggested) prejudice as a result of
its insolvency.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted. By way of further Response, following defense
counsel's oral withdrawal of her Motion in Argument Court on April
15, 1998, on the same day Plaintiffs filed their complaint to the
instant docket number (No, 95-576 civil Term) and served the same
on defense counsel by Certified Mail, Return Receipt Requested.
The said complaint sets forth a meritorious cause of action on
behalf of Plaintiffs.
13. Denied. The current state of the law with regard to
entry of judgment of non pros is set forth in Jacobs v. Halloran.
et al., No, 18-1997, Slip op. (E.D. Pa. April 2, 199B) as follows:
The effect of our decision today is to return to the
three part test of James Brothers, To dismise 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 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. (emphasis in
original) (Slip op. at p. 9)
14. It is denied that since the commencement of this action
approKimately two years and ten months ago, Plaintiffs have
eKhibited as a matter of law a lack of due diligence or that they
have failed to proceed.
To the contrary, the Plaintiffs have
undertaken the securing of medical records, medical reports, and
4
relevant criminal history relating to Defendant Jay Michael Way as
set forth above in Paragraph 7 of this Response, incorporated
herein by reference.
Further, Plaintiffs have had various
discussions with claims representatives of Defendants' underlying
insurance carrier (not of record on docket), such insurer now
(allegedly) insolvent.
15. It is denied there is no compelling reason for
Plaintiffs' delay in this case. To the contrary, plaintiff Peggy
L. Hinke suffered multiple serious and severe injuries, including
but not limited to:
(a) injuries and damages in and about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of
the head, neck, back, chest, shoulders, arms, legs, knees
and hands;
(b) inferiorly displaced comminuted transverse
fracture of mid-shaft of left clavicle;
(c) hematoma to the left (oblique) muscles of the
abdomen;
(d) fractures of maxillary right central incisor
and of the maxillary right lateral incisor requiring for
the repair thereof permanent placement of dental crowns;
(e)
amnesia;
cerebral concussion with mild retrograde
(f) carpal tunnel syndrome ~o left wrist;
(g) laceration to left anterior part of tongue;
(h) multiple lacerations, abrasions, bruises,
contusions and cuts resulting from impact within the
interior of Plaintiffs' vehicle and glass fragments;
(i) pain and discomfort in the left ar\l\, left upper
trapezius and scapular areas;
(j) muscle strains in the neck, left shoulder, and
thoracic areas with development of complications with
sustained muscle tightness, tendonitis, myofascial pain
5
localized in left neck, left shoulder and arm, with left-
sided thoracic outlet syndrome due to sustained muscle
spasms and left shoulder rotator cuff syndrome
(tendonitis of left shoulder tendon), with bilateral
scapular syndrome which includes muscle tightness and
deconditioning at the thoracic/ scapula muscle which is
inflamed;
(k) post-traumatic stress disorder/syndrome; and
(1) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, hospitalization required, surgical and
repair procedures accomplished, physical therapy attended, and
recuperative periods following thereafter,
as set forth in Paragraph 23 of Plaintiffs' Complaint proposed to
be and actually filed April 15, 1998, subsequent to defense
counsel's oral withdrawal of Defendants' Motion in Argument court,
said Complaint attached hereto as Exhibit "A", which Complaint sets
forth the meritorious cause of action on behalf of Plaintiffs.
16. Denied. It is denied Defendants have experienced actual
prejudice, or prejudice in any manner or fashion whatsoever, as a
result of Plaintiffs moving slowly forward with their case. It is
further denied Plaintiffs have "delayed" their case; rather
Plaintiffs have moved their case "slowly forward" in accordance
with the use of that phraseology by the Supreme Court in Marino v,
Hackman. et al., supra, at Slip Op" p.6.
17. Denied. It is unknown to Plaintiffs what, if any, effort
was undertaken by defense counsel to locate either of the
Defendants.
Defendants' Exhibit "F" which purports to be an
affidavit by both Attorneys Michele J. Thorp and Michael M,
Badowski, sets forth in that of Attorney Thorp that a letter was
sent to Defendant operator Jay Michael Way "at his last known
6
address" without averring such address and further avers that "a
copy of such letter is attached hereto". No copy of letter dated
May B, 199B allegedly sent by defense counsel to Defendant operator
Jay Michael way was attached to the documents served upon
plaintiffs' counsel.
Nonetheless, Plaintiffs' counsel, has located a present
address for Defendant operator Jay Michael Way at: 65 North 35th
Street, Camp Hill, Cumberland county, Pennsylvania 17011. It is
unknown to plaintiffs if this address for Defendant operator Jay
Michael Way is the same address to which defense counsel allegedly
sent correspondence as no copy of the same was provided.
Thus, Defendant operator Jay Michael Way has been located and
is readily available to defense counsel for whatever purpose they
may propose, notwithstanding, the more important issue that
Defendant operator Jay Michael Way plead guilty to the several
criminal charges set forth in Paragraph 7, supra, at least two (2)
. of which impact directly on the clear liability for the instant
collision.
As a result, any claimed prejudice by Defendant that they
cannot adequately prepare a defense because the Defendants are not
locatable is now moot.
18. Denied. The alleged insolvency of Defendants' insurer,
Quaker City Insurance Company and assumption of control of the file
by the pennsylvania Property and Casualty Insurance Guaranty
Association are factors which, if accurate, are independent of
plaintiffs' cause of action against Defendants and are wholly
7
beyond the control of either the Plaintiffs or Defendants in the
instant action.
Further, the insolvency of Defendants' insurer and assumption
of control of the file by the pennsylvania property and Casualty
Insurance Guaranty Association would have occurred at the time it
did regardless of the status of Plaintiffs' case and is thus
irrelevant to any determination in this case. Plaintiffs exercised
no control over nor did they have any input into the business
decision of Quaker City Insurance Company and can thus not be
charged with any alleged (or suggested) prejudice as a result of
its insolvency.
By way of further Response, it is denied Defendants will be
significantly prejudiced in their ability to investigate the case,
contact witnesses and prepare a defense as: (1) all witnesses to
the motor vehicle collision which forms the basis for Plaintiffs'
cause of action against Defendants are listed by name, address and
telephone number on the police accident investigation report
available to Defendants since shortly subsequent to the date of the
instant collision on February 10, 1993; (1) Defendant Jay Michael
Way, operator of Defendant Jay R. Way's vehicle in the instant
collision, was charged with various crimes resulting from the
collision with Plaintiffs vehicle and to which he plead guilty
(~: Cumberland County - Criminal Docket No. 31, Criminal 1993),
as set forth above in Paragraph 7, incorporated herein by
reference; and (3) Defendants and their insurers have been aware of
the instant collision, claim, and pending cause of action not only
8
since the date of the cOllision, but as well, since the date on
which the action on behalf of Plaintiffs was commenced on February
3, 1995, which filing and the service effected on Defendants
thereafter alerted them and their insurers to the incident, to the
identity of the Plaintiffs, and to the cause of action. Nothing
the Plaintiffs have done in their prosecution of their claim has
interfered with or prejudiced Defendants or their insurers from
investigating the incident, interviewing witnesses or preparing
whatever defense may be available - given the facts of the
occurrence of the incident as set forth in Plaintiffs' Complaint,
attached hereto as Exhibit "A", incorporated herein by reference.
Further, in the instant case, given the criminal acts of
Defendant Jay Michael Way in causing the collision and resultant
injuries suffered by both Plaintiff Jerry E. Hinke and Plaintiff
Peggy L. Hinke, and his having plead guilty and having been
sentenced in the same, there is no question as to the liability of
Defendant Jay Michael Way in causing the collision. There should
therefore be no concern over the presence or absence of any
material witnesses to the collision or their ability or inability
to have a clear recollection of the same or, further, whether any
of those witnesses mayor may not any longer be available. Thus,
the expressed concern by the superior Court in James Brothers
Lumber Co. v. Union Banking and Trust Co. of DUBois, 432 Pa. 129,
247 A2d 5B7 (1968) in its suggestion of possible prejudice to the
adverse party, and that Court's suggestion that the same may result
from
"
the death of or unexplained absence of material
.. .
9
, ,
, , ,
,.,. A" . .
witnesses" (603 A.2d at 1007), is inapplicable in the instant case.
The significant factors to be considered in the instant case
will be those relating to description of the injuries sustained by
both plaintiffS, required treatment, care, and recuperative therapy
thereafter, degree of healing, and any and all residual
disabilities and limitations on the pursuit of ordinary daily
activities thereafter. That information and those facts will be
testified to by the plaintiffs themselves and, as well, by any and
all treating physicians, therapists, nurses, and other persons
having knowledge of the same. AS a result, those factors, all
being within the purview of Plaintiffs' presentation of their cases
and witnesses to be produced on their behalf and of course subject
to the full gamut of pretrial discovery, has nothing to do with and
will not serve to the detriment or prejudice to the adverse party,
Defendants herein. The Defendants were not witnesses to the
injuries, medical treatments required or recuperative courses
experienced by Plaintiffs; rather, the only involvement on the part
of Defendants was to cause the collision and resultant injuries to
the PlaintiffS, which collision clearly resulted fro\l\ criminal
activity of Defendant Jay Michael way which, in all likelihood,
would be a factor in this case to be stipulated by Defendant.
Therefore, no prejudice has or will result to the adverse party,
Defendants herein, when this case proceeds on the merits.
It is further denied there is or has been any prejudice
or should be any presumption of prejudice against Defendants in the
instant case for the reasons set forth above.
10
1. t. i.s deni.ed,
1.9.
1 ~ t.nat.
Defendant.s' ~0t.~0"1
Ratnetl and t.o t.ne
non ptos,
, supra,
~, 1.1.9 _ 1.991,
I L"O-
Defendant.s a"Ce
cont.tat':l ,
1.999)1 and
?lai.nti.ffS na~i.ng
.".gr'" ", "p" \ . ' · t'on' '" o,.m"" no
d ntS' fi.li.ng tne"C 0
,0 . .dor to O.i.n . .. ..nt.onot.r, 0'
fi.led \'li.tn t.
f '0'"'' bad .aan t..o"d ..
.ppe"an'. 0 . oo,..t .ntr'.' ·
1. ti.ffs' counsel tsee.
set~ed upon ?la n
f nd..t.' .ot'oo\' r.f.r.n'. "
...,.,t "." to O' . d ,n,or""..t'" ....'n bY
". .t..,,,d ..r.tO an . f .,.'n,itta ,.r<"I E.
,,1' d on 'penal~ 0
f conp,.,nt .,.' .nd ,.,
. ..rit,.d "VI 0 o.fand..t' ,., .. ..,
,. .nd .g.,n.t ,-,
.'n.' and ..g'" ,,, . n " ""ant to d.f.... '0....
1.999 su'pse..,."
. d' ", _ ,on fo'
."..., .." on . f P.t.nd.nt.- pr,or ..t
, ...".nt coUrt 0 · ...
or" .,t'dr'." n s.,d comp,.,nt .... fort
nt. tlon ?tOs,
Entr' of "d<l'" ,f of .,.,ntit'"
of act.i.on on 'pena
me-ci.t.O-Ci.OUS caUse
\
I
\
,
,
I
,
\
1.1
":1
22. A copy of each pennsylvania Supreme Court opinion
referenced above as Marino v. Hackman. et aI" No. 193-1996, Slip
op. (M.D, Pa. - April 2, 1998), Jacobs v. Halloran. et al., No. 18
- 1997, Slip Op. (E.D. Pa. April 2, 1998), and Shope v. Eagle. et
~, No. 119 - 1997, Slip Op. (M,D. Pa. April 2, 1998), is attached
hereto as Exhibits "B", "C" and "0", respectively.
WHEREFORE, plaintiffs Jerry E. Hinke and Peggy L. Hinke
respectfully pray this Honorable Court to enter an Order denying
Defendants' Motion for Judgment of Non Pros and directing that
Plaintiffs file the attached Complaint and proceed on the merits of
the case, and that Defendants file a timely Answer thereto.
Respectfully submitted,
LAW OFFI ES OF JOSEPH A, KLEIN, P.C.
By:
Mark S. S lver, Esqu re
1.0. No. 09825
100 Chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for plaintiffs
Date: June 19, 1998
12
CERTIFICATE OF SERVICE
I, MARK S. SILVER, ESQUIRE, of the law firm of JOSEPH A.
KLEIN, P.C., attorneys for Plaintiffs, do hereby certify that on
this date I served the foregoing RESPONSE OF PLAINTIFFS JERRY E.
HINKE AND PEGGY L. HINKE TO DEFENDANTS' MOTION FOR JUDGMENT OF NON
PROS by hand 'delivering the same to counsel for the Defendants as
follows:
Michael M. Badowski, Esquire
Reynolds & Havas
101 pine Street
Harrisburg, PA 17108-0932
LAW OFFICES OF JOSEPH A. KLEIN, P.C.
By:
~w'
Mark S. ~lver, Esquire
1.0. No. 09825
100 Chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for plaintiffs
Date: June 19, 1998
htnke,re.
()
C)
"
'....'
. ~- -- .
~"
".1
~.-"'"
~-
, \ I
JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Plaintiffs
v.
NO. 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY,
Defendants
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JURY TRIAL DEMANDED
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YOU HAVE BEEN SUED IN COURT. If you wish to defend agaio~t:~he
claims set forth in the following pages, you must take action witftin
twenty (20) days after this Complaint is served, by entering a written
appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without
you and judgment may be entered against you by the Court without
further notice for any money claimed in the complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or
property or other rights important to you,
YOU SHOULD TAItE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
cumberland County Courthouse
Carlisle, pA 17013
(717) 249-6200
r- .-.~
JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
NOT I C I A
LE HAN DEMANDADO A USTED EN LA CORTE. si usted quiere defenderse
de estas demandas expuestas en las paginas siguientes, usted tiene
viente (20) dias de plazo al partir de la fecha de la demanda y la
notificacion, Usted debe presentar una apariencia escrita or en
persona 0 por abogado y archivar en la corte en forma escrita sus
defensas 0 sus objeciones alas demandas en contra de su persona. Sea
avisado que si usted no se defiende, la corte tomara medidas y puede
entrar una orden contra usted sin previo aviso 0 notificacion y por
cualquier queja 0 alivio que es pedido en la peticion de demanda.
Usted puede perder dinero 0 sus propiedades 0 otros derechos
importantes para Ilsted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATEMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR
ASISTENCIA LEGAL.
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 249-6200
~
JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
plaintiffs
v.
NO. 95-576 CIVIL TERM
JURY TRIAL DEMANDED
JAY,R. WAY and JAY MICHAEL WAY,
Defendants
COMPLAINT
AND NOW, come the plaintiffs, Jerry E. Rinke and Peggy L, Rinke,
husband and wife, by their attorneys, Joseph A. Klein, P.C., and Mark
S. Silver, Esquire, and file this CO\l\plaint against Jay R. way and Jay
Michael way, Defendants, upon a cause of action more fully set forth as
follows:
1. Plaintiff Jerry E. Rinke is and was at all ti\l\es relevant
hereto an adult American citizen of the commonwealth of Pennsylvania,
residing together with his wife, Plaintiff Peggy L. Rinke, at 710
sunhaven circle, Mechanicsburg, cumberland county, Pennsylvania, 17055,
and is the husband of Plaintiff Peggy L. Rinke.
2. Plaint if f Peggy L. Rinke is and was at all times relevant
hereto an adult American citizen of the commonwealth of pennsylvania,
residing together with her husband, plaintiff Jerry E. Rinke, at '110
Sunhaven Circle, Mechanicsburg, Cumberland county, pennsylvania, 1'1055,
and is the wife of Plaintiff Jerry E. Rinke.
3. Defendant Jay R. Way was at all times relevant hereto an adult
American citizen of the commonwealth of pennsylvania, initially
residing at 247 Ridge Rill Road, 'Mechanicsburg, Cumberland county,
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pennsylvania, 17055, subsequently residing at 3455 Street Road, No.9,
Bensalem, Bucks County, Pennsylvania, 19020-1S47.
4. Defendant Jay Michael Way was at all times relevant hereto an.
adult American citizen of the Commonwealth of pennsylvania, residing at
247'Ridge Hill Road, Mechanicsburg, Cumberland County, pennsylvania,
17055.
5. The within civil action was commenced by praecipe for Writ of
Summons, the same filed with the Office of the prothonotary of
Cumberland County, pennsylvania, on February 3, 1995, docketed to No.
95-576 civil Term. Service of the writ of Summons issued by the Office
of the prothonotary of Cumberland County, pennsylvania, was effected
upon Defendant Jay Michael Way, by the Sheriff of Cumberland county,
Pennsylvania, on February 23, 1995.
Service of the writ of Summons was not effected upon
Defendant Jay R. way within the thirty (30) days following February 3,
1995; thus, a praecipe to Reissue Writ of Summons was filed with the
prothonotary of Cumberland County, pennsylvania, on March 3, 1995, and
on March 31, 1995, service of the reissued writ of Summons was effected
upon Defendant Jay R. Way by the Sheriff of Bucks County, Pennsylvania.
6. The events giving rise to the instant cause of action occurred
Wednesday, February 10, 1993, at approximately 9:25 p.m. on Wilson
Lane, near its point of intersection with Lancaster Boulevard, situate
in Upper Allen Township, cumberland County, Pennsylvania,
7. At all times relevant and material hereto and at the location
herein involved, Wilson Lane was a two lane paved roadway, extending at
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the location herein involved generally in an east-west direction,
providing one lane fo~ travel in the eastbound direction and one lane
for travel in the westbound direction. The westbound lane of the.
aforesaid wilson Lane is intersected from the north by Lancaster
Bouievard, which Boulevard is controlled by a stop sign on Lancaster
Boulevard at its point of intersection with the westbound lane of
Wilson Lane. Wilson Lane is the through roadway having the right-of-
way at said intersection.
B. At the aforesaid time and place, Plaintiff Jerry E. Hinke was
lawfully operating a 1990 chrysler LeBaron automobile bearing
Pennsylvania Registration Plate WRU162, with his wife and the owner of
said automobile, Plaintiff Peggy L. Hinke riding together with him as
a right front seat passenger in a westerly direction on Wilson Lane and
in the westbound lane thereof.
9. At the aforesaid time and place, both Plaintiff Jerry E. Hinke
and Plaintiff peggy L. Hinke had previously engaged and were wearing
the factory equipped seat belts in the aforesaid automobile.
10. At the aforesaid time and place, Defendant Jay ~ichael Way
was operating a 1979 Dodge Tradesman 200 truck, VIN 30912394S04,
bearing Pennsylvania Registration Plate YV67926, owned by his father,
Defendant Jay R. Way, and with his knowledge, consent and permission,
in a southerly direction along Lancaster Boulevard and toward its stop
sign controlled intersection with Wilson Lane.
11, At the aforesaid time and place, as plaintiff Jerry E. Hinke
was proceeding west in the westbound lane of travel on Wilson Lane, the
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12. The aforesaid collision between the vehicle operated by
Plaintiff Jerry E. Hinke and that operated by Defendant Jay Michael Way
was caused solely by, and was the direct, proximate, sole and exclusive
result of the negligence, carelessness, and recklessness of the said
Defendant Jay Michael Way, as aforesaid, and was not caused in manner
whatsoever by any act or failure to act on the part of Plaintiff Jerry
E. Rinke, or on the part of Plaintiff peggy L. Hinke.
13. The negligence, carelessness, and recklessness of Defendant
Jay Michael Way in causing the aforesaid cOllision consisted of his:
(al failure to operate and control the vehicle he was
operating with due care;
(bl failure to have his vehicle under adequate and
proper control so as to avoid striking Plaintiffs' vehicle;
(c) failure to stop and yield the right-of-way to
Plaintiffs' vehicle which was either already in the
intersection or approaching said intersection on the through
roadway having the right-of-way so closely as to constitute
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a hazard at the time the Defendant operated his vehicle
across or within the intersection or junction of roadways in
violation of the Pennsylvania Motor Vehicle Code, 75
pa.C,S,A. 53323(a) and (b);
(d) failure to operate the brakes in such a manner so
that Defendant's vehicle could be stopped in time to avoid
colliding with Plaintiffs' vehicle;
(e) operating and being in actual physical control of
the movement of the vehicle he was operating while under the
influence of alcohol to a degree which rendered Defendant Jay
Michael way incapable of safe driving in violation of the
pennsylvania Motor Vehicle code, 75 pa.C,S.A. 53731(a) (1) I
(f) failure to avoid a collision with the vehicle
operated by plaintiff Jerry E. Hinke when Defendant Jay
Michael way saw, or in the exercise of due care, should have
seen Plaintiffs' vehicle was on the through roadway and
approaching the intersection from which Defendant's vehicle
was about to exit, ahead and in full, unobstructed view of
Defendant Jay Michael way;
(g) failure to operate Defendant's vehicle at a speed
which was reasonable or prudent under the conditions, giving
due regard to the actual and potential hazards thon existing,
in violation of the Pennsylvania Motor vehicle code, 75
Pa.C.S.A, 53361;
(hI operating a vehicle at a rate of speed which
rendered Defendant incapable of controlling its movements in
violation of the pennsylvania Motor Vehicle code, 75
Pa.C.S.A. 53361;
(i) operating Defendant's vehicle with careless
disregard for the safety of the property and person of the
Plaintiffs, in violation of the Pennsylvania Motor Vehicle
Code, 75 Pa.C.S.A. 53'114;
(j) failing to stop, change direction of, or otherwise
avoid impact with the vehicle plaintiff Jerry E. Hinke was
operating within the assured clear distance ahead, in
violation of the pennsylvania Motor Vehicle Code, 75
Pa.C.S.A, 53361;
(k) continuing to operate Defendant's vehicle in a
direction toward the vehicle plaintiff Jerry E. Hinke was
operating when Defendant Jay Michael way saw, or in the
exercise of reasonable diligence, should have Been that
further operation in that direction would result in a
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collision with plaintiff's vehicle;
(1) failure to sound a horn or to give other warning of
the approach of Defendant's vehicle;
(nI) failure to exercise that degree of care for the
rights and safety of Plaintiffs as required of Defendant
under the law;
(n) failing to operate Defendant's vehicle in an
attentive manner and failure to maintain a sharp look-out on
the road ahead for surrounding traffic conditions;
(0) continuing to operate Defendant's vehicle out from
the stop sign which was to control southbound traffic on
Lancaster Boulevard without first having brought Defendant's
vehicle to a full and complete stop at said stop sign, and in
continuing to operate said vehicle directly out and into the
intersection comprised of Lancaster Boulevard and the
westbound lane of wilson Lane, the through roadway having the
right-of-way, and directly toward and into Plaintiffs'
westbound vehicle when Defendant saw, or in the exercise of
reasonable diligence, should have seen that further operation
in that direction would result in a collision with
plaintiffs' vehicle; and
(p) such other acts of negligence as discovery may
reveal and Plaintiffs plead by amendment.
FIRST CLAIM
JERRY E. HINKE, PLAINTIFF v.
JAY R. WAY and JAY MICHAEL WAY, DEFENDANTS
14. paragraphs 1 through and including 13 of this Complaint are
incorporated herein by reference thereto.
15. As a direct, proximate, sole, and exclusive result of the
negligence of Defendant Jay Michael Way in causing the aforesaid
collision, set forth as aforesaid in paragraph 13 of this Complaint,
Plaintiff Jerry E. Hinke was thrown violently about the interior of the
vehicle he was operating and sustained the following multiple, serious,
severe, and painful injuries, some of which are of a permanent nature,
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and include but are not limited to:
(a) injuries and damages in and about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of the
head, neck, back, chest, shoulders, arms, legs, knees and
hands;
(b)
contusions
left shin;
multiple lacerations, abrasions, bruises and
to head, forehead, scalp, left temple area, and
(c)
multiple cuts from broken glass;
(d) strain and sprain about the entire body, inCluding
but not limited to strain and sprain to the cervical spine,
lumbar spine and thoracic spine, with multiple levels of
cervical, thoracic, lumbar, and sacral spinal pain; and
(e) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, medical procedures accomplished and
recuperative periods following thereafter.
16. AS a direct and proximate result of the negligence of
Defendant: Jay Michael way in causing the aforesaid collision and
Plaintiff Jerry E. Hinke to sustain the injuries set forth as aforesaid
in paragraph 15 of this Complaint, Plaintiff Jerry E. Hinke has
incurred in the past and may in the future continue to incur costs and
expenses for medical care and treatment, some portion of which may
exceed the sums recoverable under the limitations as set forth in the
Motor Vehicle Financial Responsibility Law, Act of February 12, 1984
(P.L. 26, No. 11), as amended, 75 pa.C.S.A. ~1711, and claim is \l\ade
therefor.
17. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael way in causing the aforesaid
collision and Plaintiff Jerry E. Hinke to sustain the injuries as set
forth in paragraph 15 of the Complaint as aforesaid, said plaintiff has
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undergone mental and physical pain and suffering, anguish, humiliation,
and loss of life' B pleasures, with limitations on his pursuit of
ordinary daily activities, all to his great loss and detriment, and.
claim is made therefor.
18. AS a further direct and proximate result of the sole
negligence of Defendant Jay ~lichael Way in causing the aforesaid
collision and plaintiff Jerry E. Hinke to sustain the injuries as set
forth in paragraph 15 of the Complaint as aforesaid, said plaintiff
does presently and may in the future undergo mental and physical pain
and suffering, anguish, humiliation, loss of life'S pleasures, with
limitation on his pursuit of ordinary daily activities, all to his
great loss and detriment, and claim is made therefor.
19. AS a further direct and proximate result of the sole
"
negligence of Defendant Jay Michael Way in causing the collision as
aforesaid at paragraph 13 and Plaintiff Jerry E. Hinke to sustain the
injuries as set forth in paragraph 15 of the Complaint as aforesaid,
and Plaintiff Peggy L. Hinke to sustain the injuries as set forth
hereinafter in Paragraph 23, incorporated herein by reference, the said
automobile of the within plaintiffs was damaged in and around the body,
frame, fender, doors, windows, and other parts of the motor vehicle.
said Plaintiffs were Obliged to have said motor vehicle repaired, were
deprived of its use for some time, and said motor vehicle depreciated
in substantial amount in value, and claim is made therefor.
20. At all times relevant and material hereto, the 1990 Chrysler
LeBaron automobile described in greater detail in Paragraph 8, Bupra,
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incorporated herein by reference, owned (by title) by plaintiff Peggy
L. Rinke and operated at all times relevant and material hereto by
plaintiff Jerry E. Hinke, was insured by Allstate Insurance Company.
pursuant to its policy of insurance, policy number 008775104, which
pol:l.cy provided, inter a11a, "full tort" insurance coverage to its
insureds, Plaintiff Jerry E. Rinke and Plaintiff Peggy L. Hinke.
21. As a direct and proximate result of those injuries sustained
by Plaintiff Peggy L, Rinke set forth in detail hereinafter at
paragraph 23, incorporated herein by reference, all of which were
caused solely, directly, and proximately by the negligence of Defendant
Jay R. Way and Defendant Jay Michael Way as previously set forth,
Plaintif f Jerry E. Rinke has in the past and will continue in the
future to be deprived of the society, services, assistance,
companionship, comfort and affection of his spouse, plaintiff Peggy L.
Rinke, all to his great damage and loss, and claim is hereby made by
plaintiff Jerry E. Rinke for such loss of consortium.
WHEREFORE, plaintiff Jerry E. Rinke makes claim for and demands
judgment against Defendant Jay R. Way and Defendant Jay Michael Way in
an amount in excess of Twenty-Five Thousand and NO/100 ($25,000.00)
Dollars, excluding and costs as further claimed, an amount in excess of
any jurisdictional amount requiring compulsory arbitration.
SECOND CLAIM
PEGGY L. HINKE, PLAINTIFF v.
JAY R. WAY and JAY MICHAEL WAY, DEFENDANTS
22. Paragraphs 1 through and including 13, and paragraphs 19 and
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20 of this Complaint are incorporated herein by reference thereto.
23. As a direct, proximate, sole and exclusive result of the
negligence of Defendant Jay Michael Way in causing the aforesaid.
collision, set forth as aforesaid in paragraph 13 of this Complaint,
Plaintiff Peggy L. Hinke was thrown violently about the interior of the
vehicle she was occupying as a right front seat passenger and sustained
the fOllowing multiple, serious, severe, and painful injuries, some of
which are of a permanent nature, and include but are not limited to:
(a) injuries and damages in and about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of the
head, neck, back, chest, shoulders, armS, legs, knees and
hands;
(b) inferiorly displaced comminuted transverse fracture
of mid-shaft of left clavicle;
(c)
abdomen;
hematoma to the left (oblique) muscles of the
(d) fractures of maxillary right central incisor and of
the maxillary right lateral incisor requiring for the repair
thereof permanent placement of dental crowns;
(e) cerebral concussion with mild retrograde amnesia;
(f) carpal tunnel syndrome to left wrist;
(g) laceration to left anterior part of tongue;
.,
(h) multiple lacerations, abrasions, bruises, contu-
sions and cuts resulting from impact within the interior of
Plaintiffs' vehicle and glass fragments;
(j) pain and disco\l\fort in the left arm, left upper
trapezius and scapular areas;
(k) muscle strains in the neck, left shoulder, and
thoracic areas with development of complications with
sustained muscle tightness, tendonitis, myofascial pain
localized in left neck, left shoulder and arm, with left-
sided thoracic outlet syndrome due to sustained \l\uscle spasms
and left shoulder rotator cuff syndrome (tendonitis of left
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shoulder tendon), with bilateral scapular syndrome which
includes muscle tightness and deconditioning at the thoracic/
scapula muscle which is inflamed;
(1) post-traumatic stress disorder/syndrome; and
(m) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, hospitalization required, surgical and
repair procedures accomplished, physical therapy attended,
and recuperative periods following thereafter.
24. As a direct and proximate result of the negligence of
Defendant Jay Michael Way in causing the aforesaid collision and
plaintiff peggy L. Hinke to sustain in the injuries set forth as
aforesaid in Paragraph 23 of this Complaint, Plaintiff Peggy L. Hinke
has incurred in the past and may in the future continue to incur costs
and expenses for medical care and treatment, some portion of which may
exceed the sums recoverable under the limitations as set forth in the
Motor Vehicle Financial Responsibility Law, Act of February 12, 1964
(P.L. ,26, No. 11), as amended, 75 Pa,C.S.A. !i1711, and claim is \l\ade
therefor.
25. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff Peggy L. Hinke to sustain the injuries as set
forth in paragraph 23 of the Complaint as aforesaid, said plaintiff has
suffered impairment of her earning capacity 'and loss of past and future
earnings, which sums may not be recoverable by plaintiff Peggy L. Hinke
under the provisions of the Motor Vehicle Financial Responsibility Law,
Act of February 12, 1964 (P.L. 26, No. 11), as amended, and claim is
made therefor,
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26. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff peggy L. Hinke to sustain the injuries as set.
forth in Paragraph 23 of the Complaint as aforesaid, said plaintiff has
suffered an i\l\pairment of her past and future earnings and an
impairment of her earning capacicy and the loss of future earnings,
which sums are not recoverable by Plaintiff Peggy L. Hinke under the
provisions of the Motor Vehicle Financial Responsibility Law, Act of
February 12, 1984 (P.L. 26, No. H), as amended, and claim is made
therefor.
27. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff Peggy L, Hinke to sustain the injuries as set
forth in Paragraph 23 of the Complaint as aforesaid, said Plaintiff has
undergone mental and physical pain and suffering, anguish, humiliation,
and loss of life's pleasures, with limitations on her pursuit of
ordinary daily activities, all to her great loss and detriment, and
claim is made therefor.
28. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff Peggy L. Hinke to sustain the injuries as set
forth in Paragraph 23 of the Complaint as aforesaid, said plaintiff
does presently and will in the future undergo mental and physical pain
and suffering, anguish, humiliation, loss of life's pleasures, with
limitation on her pursuit of ordinary daily activities, all to her
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great loss and detriment, and clai\l\ is made therefor.
29. AS a direct and proximate result of those injuries sustained
by plaintiff Jerry E. Hinke set forth in detail hereinbefore at,
paragraph lS, incorporated herein by reference, all of which were
caused solely, directly, and proximately by the negligence of Defendant
Jay R. way and Defendant Jay Michael way as previoUsly set forth,
plaintiff peggy L. Hinke has in the past and will continue in the
future to bo deprived of the society, services, assistance,
companionship, comfort and affection of her spouse, plaintiff Jerry E.
Hinke, all to her great damage and loss, and clai\l\ is hereby made by
Plaintiff peggy L. Hinke for such loss of consortium.
WHEREFORE, Plaintiff Peggy L. Hinke makes claim for and demands
judgment against Defendant Jay R. way and Defendant Jay Michael way in
an amount in excess of Twenty-Five Thousand and NO/100 ($25,000.00)
Dollars, excluding and costs as further clai\l\ed, an amount in excess of
any jurisdictional amount requiring compulsory arbitration.
RespectfullY submitted,
LAW
O\Jl~~~OS'PH
A. KLEIN, P.C.
By:
Mark 5. Silver, Esquire
IoD. NO. 09B25
100 Chestnut Street, suite 210
post Office Box 11S2
Harrisburg, PA 1710B-1152
(717) 233-0132
Attorneys for Jerry E. Hinke and Peggy
L. Hinke, husband and wife, Plaintiffs
Date: February'\'l , 199B
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VERIFICATION
The undersigned, Jerry E. Hinke, hereby verifies and states that:
1. He is one of the named plaintiffs herein;
2. The facts set forth in the foregoing COMPLAINT are true and
correct to the best of his knowledge, information and belief; and
3, He is aware that false statements herein are made subject to
the penalties of 16 Pa.C.S.A. ~4904, relating to unsworn falsification
to authorities.
Date: February 13 , 1996
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VERIFICATION
The undersigned, Peggy L. Hinke, hereby verifies and states that;
1. She is one of the named plaintiffs herein;
2. The facts set forth in the foregoing COMPLAINT are true and
correct to the best of her knowledge, information and belief; and
3. She is aware that false statements herein are made subject to
the penalties of 18 Pa.C.S.A, 54904, relating to unsworn falsification
to authorities.
'~~~~ j, 'Ii/',)~_
Peggy L. e
Date: February 13 , 1998
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CERTIFICATE OF SERVICE
I, MARY. S. SILVER, RSQUIRE, of the law firm of JOSEPH 1\,
KLEIN, P,C., Rttorneys for Plaintiffs, do hereby certify that on
this date I served the foregoing COMPLAINT by placing a true and
correct copy of same in the United States Mail, sent certified
mail, return receipt requested, postage prepaid, deposited at
Harrisburg, Pennsylvania, addressed to counsel for the Defendants
as follows:
Michael M. Badowski, Esquire
Reynolds & Havas
101 pine Street
post Office Box 932
Harrisburg, PA 17108-0932
LAW OF1rYEJS 0: JOSEPH A. KLEIN, P. C .
By: !~ L.....,
Mark S. 1>ilver, Esquire
I.D. No. 09825
100 Chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for Plaintiffs
Date: April 15, 1998
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IN THB SUPREME COOR~ OF PENNSYLVANIA
14IDPLZ DISTRICT
CHARLES and MOLLIE MARINO.
:No. 193 M.D. Appeal Dkt. 1996
1\ppellant:l
:Appe~l from the Order of the
: Supe1'ior Court dated June 14.
: 1996, denying reconsid7ration
:of its Order dated Apr~l 10,
: 1996, at No. 1961 philadelphia
:1995, affirming the Order of
: the Court of Common Pleas of
: 13p.1'kfi C:n\ln~,y. r.:ivi1 nivi,sion.
: dated May 10 1995, ~t No.
: 1140-92 .
v.
JAMES HARRY HACKMAN, JAY ROLLMAN
~ SONS and WILLIAM ROLLMAN TRUCK
RENTALS,
Appelleos
: 451 E'a. Super, 638.
: 679 A.2d 263 (]996),
: ARGUED: April 2B, 1997
OPINXON
1m. JOS'l'ICI1: ZAPPALA
U~~lU~U: April 2, l~~H
We must determine whethcl;' non-docket activity may hp.', r.:on::lid-
ered when deciding whether a case should be terminated for
inQcti vity pursuant to local :rules lJllplt::lIl(,!lltiIlY RulH of Judicial
Mmi n; ~trat ion 1901.1 For the reasons set forth hQ1'l'Iin, wa huld
that non-dock~t activity may be considered.
On March 4. 1992, Appellants filed a complaint in Berks county
seeking damages for injuries allegedly caused by Appellees'
tThe comp/'Inion Cllses o.E Jlicob~ v, Hallorlln. _ Po. _, __ A.2d
__ (1998), and ShODe v. Saqlc, __ Va. __, _ A.2d __ (1990), al~o
decided today, involve related issues. In Jacobs, we ~bandon the
presumption of pre;udice first enunciated in Penn pioina. Inc,. v.
Insurance ComoanY of North America, 529 l'a, 350, 603 l\.2d 1006
(1992), and hold that the defendant mU6t e~;t:<Ibli5h actll.'ll prejudice
by the delay in prosecution. in Hhol'lp., we hold that the same
standard applies to t~X1ninations pursuant to a defp.nddnt's motion
(or a judgment of non pr03 and the court's dismissal for il1l&cl.lvlLy
pursuant to local t'ulas implement.ing Rule of Judicial Admini:;-
t,rat,i.on 1901.
. '
negligence in an automobile accid~IlL. The do(;kl:!\: rctlect:; /let, i.vity
uUI'ing 1992, inl:ludlng <III clllswel' t,o the cc.mp lllint and issues
I:elated to discovary. ThQ f~nal ~I')cket entry ,'If l:he year wa~ a
discovery-related item on Nl)v~mber 30, 1992. No docket entries
followeci for two years and a day until December 1, 1994, when the
prothonot3ry of l3erks county filed il notice of: termination pursuant
to Hule 1901 and !lerks county Rule of JUdicial Administration 1901.
On January 30, 1995, new counsel for Appell.:\nts entered his
appearance and two days later filed a motion to prevent termina-
tion.
A hearing was held on ,the motion, where it was p.sr.ablished
that the fOllowing non-docket activity occurred during the period
of alleged inactivity. Arthur D. Rabelow, Esquire, was substituted
for AI?l?ellant,s' f.; r.r.;t Dtt:orney, Donald l\rtzt, I::squi:r:e, due ttl
Artzl:'s death sometimp. in 199,", Tn Mi'lrr:h, 1QQJ, dl-!llositions of al'l
parties were taken. In the ensuing monr.ho, Appellants tried to
contact R3bclow ocvcral time!:, but he never l'etu:r;'ned Lhel.r.' calla.
Th~y lClsL sl,;Iok.a with Rabelow in February, 1994, when he repol"ted
settlement negoti.ations anci indicaced that he would let them know
how the negoLiatlons were proceeding in two or three weeks.
Rabelow never contacted Appellants, however.' , and in August, 1994,
Appellants decided to hire another ~ttorney ond wro~e to Rub~luw,
r.lisch<ll"Jin'J him. They rt?:t?ived no l:F.lSpo;.nr.;n f,"om R,~hnlnw, Appel-
lants :;\Ibsequent.ly retnineci current counsel, Dennis E. Boyle,
Esquire, in October, 1~~4, and he requested Appellancs' file from
Rabelow. l\(tt:lt' tlt:lvet'dl months, Boyle was obliged to dt'ive more
{J-75-l997] - 2
than 200 miles to pick up the f1.le ill: ,l<abelow's office. At LIII:!
same cime, BoY le received R..below':; wi. thdrawill o~ "ppe<:lrunc:e which
had neon requested month::: oar~i",,"
In addition Co the foregoing a~Llviey, aL least five lettF.\r~
werp. p'x,~hi1nged between CO\ln~el for Appellants and Appellees during
the period ,AUgUst 6, 1993 and March 16, 1994, soliciting and
cor.unun iCilC ing a set: t:lement: d~lIIdJl~i C 1'1;1111 A['[JI,:llallt:s,
Appellee:!'
counsel Gti~llated that there was 01:30 ~ telephone call in June,
199cl, in which Rabelow told him 'he would ~end a certificate of
t'l:duillt::>:l for trial, although it was never f'I~r.:nj,vnd.
following the t,erminllr:ion hearing, the trial court: held that
Appellants had tailed to establish r::ompf!J.ling reasons fOl' l;he two
years of inactivity on the docket, and orc'h'lred c.he case teI.1l1int:l.L~d
purSlIunt t.o Derks County nulfl of JUdicial i\dministrat:.ion 19 01, ~
\o:hir.h Wit I:' ...n.,r:~p.ri pursuant to Pennsylvania Rule of Judicial'
l'.dm:.r.:..scroJtion 1901.1
Il3erks CoullLy Rule of .7udicial Administration 190:L essenti.!llly
provides that in CLlSes whcrc there is, 110 docket activity for a
period of two years, the prothonotary shall advise the parties that
the case will be telminated unless, within si~ty nays following the
mrd ling of notice. one of the following nnr.llment5 are filed: '11 a
mocion requesting a hearing on the termination: or (2) a stipula-
tion signed by all counsel and approved by the court. allowing the
case to remain active. ~he rule further provides that after tWO
years or docket inactivity. the court shull not ilCt. upon allY
document filt:!u UL' lI\oL.ion m..,de with the ext:epticn lJE the prothon
otar"j giving notice or the act,ion I)pon 11 motion for a hearing on
r,h~ r,p.rmination.
lrh is r\11 ~ provides ilS follows:
RIIl.S 190'1. PI{OMI''l' U1Sl'OSITJON OF r,lA'l''I'r.RS: TERMINATION OF
INt\CTIVE CASES
(r.cmt.inllp.n... )
[,J-7~-1997J - '3
The Sup~rio': (:Ollt:t. i\C(irmeCl, holding t.hat the reaOOns advanced
by APpoll.unt:; to explain chl1 dp.1oy llre no'. the type of ,"~,~:;(Jl15
cantCll1plilt ed hy our court in, ponn Pi oinet or !'it, t'p.inl v, COlTll!!unitv
r.~n('!r"l Iln~o\.tlll.. 529 Pa. 360, 603 l\.:!d lull (1992).\
Vie begin 0111' ilnillysis by revie~ling our holdings in the
compan1.0n catle::; of ,Jilcob::; /'11111 .'ihr.>p",". In .Jl\cob;;, \Ole held that to
dL:;mi:;:l .:l C05C fOl' lnt1t.:tivitY purSU<lnc \.0 d clefendant' S \l\otion for
non pros there must first be a lack of due diligence on tho part of
\.h~ plaintiff in railing to proceed wit.h rea(lorwblu promptitude.
:;econd, the plaintiff must have no compF.\l.ling reason fOI: the delay.
finally, the delay must caus~ uctual prejudir.e to t.he defendant.
SllP op. at 9.
In shClne, we huld that I:h~ same sl:andard applies to termino-
~;on~ pursuant to a dBfandant'~ motion for non pros Clod di5miss~ls
"
1(, . . continued)
(ill General policy. It: is the policy of the unified
)Udlcinl ;;YR~Am to bring ~ach pending mat,cer to a final
conclusion as promptlY as possible cons' f,t,ont ly with the
ch~racter ot the matter and the resources of the System.
~Ihere Cl matter has been inactive for an unreasonable
period of time, thA tribunal, on its own motion, shall
enter un ClPpropriaL.lol ot'der terminating the (I\....lr.~p,r.
(b) primary RetlPonsibility for Impluu,entation of
poliCY.
(1) Each cuurt of common pleas is primarily I:espon-
:;iblc fOl' the irnplemen~.c\\', i on c,f the polley \'!xpt'~!ised in
9ubuivision Inl of this rule and is directed to make
local rllle3 of court for such purposes. . ,
'An order ~Rrm'nating an action for failure of a plaintiff to
prooccute his c1aim within a reason(lble time is within the
di~crctioll of t.he t::lal court and will. not be di!:ltU:rbcd on appeal
abconl: pr,:)of of un abuse of di:;lcl,~tion. GO lldull"'I.' v. Jewish
Ho~pi~~l Association, 425 Pa. 112, 113. 228 A.2d 732, '133 (1972).
IJ-7S-199'1j - II
pursuanc co a local rule implementing Rule 1901. We further held
th.:1t equit.able principle:. I5h()uld be t.:ull~id!lL'ud w\1t::1l uismiss1.ng a
case Dursuant to ~llp. lQ01, ~1iD op. at. B.
This case gives us the opportunity to determino whether t.he
second prong of the test for inactivity. i.e., whethp.r th~
plaintiff set forth a compelling ,rt~ason f.Ot che delay, should
include l:ull::lide::ration of activities which are nCl~, I'p.flected on the
docket:.
.Ln Penn pipinq, we stated thi:1t compellinH X'el.lsons fOl:'
delay weL'e l;;et forth in "Co:l:Je3 where the delaying party establishes
the delay Wi:lS r:;ilused by bankruptcy, liquidation, or oth~t' operation
of law, or in cases awaiting :;igni fi r:;(lnt developments in the law."
We noted, however, that "[tlhere may, of course, be other compel-
lluy reasons which will be determined on a ci:lse-by,"case basis."
529 Pa. at 356 n.2, 603 A.2d at 1009 n.2.
While we adhere to th~
view that each cusp. m\lst ba examined on i.ts merits, we find that
non-docket acLlvlty can be examined in deciding whether a compel-
ling r.eason exist.s.s
In recent years, many court3 of common pleas h/l.vp. oFNAlo);lo?u
their own pCl1ici,es regarding which activities aI:e to be recorded un
the docket. In some counties, activity that was formerly recorded
on the docket is no longer. This leads to a lack of uniformity in
the i:lpp1ic~tion of Rule 190:1 /Illd c1l::lIJ in the g1.'anCillY of jud9m€ntS
nf non pros. We further recognize thn~ 30me activities which are
beyond thA t;ont1.'ol of the plaintiff can cau:::c dcJ.ay in prosecution
~This rule shall apply to all pendiny (';/iSE\S where the issue
has been oreservp.n.
[,:r-75-l997] - !l
yet. cH'(;l not required ta be docketed. This precise ],n'oblem "1115
I1nticlpllted in StL'(;!irll. wherF.l i t, \~"s noccd that. "il cease m..y he
ac~ive but have no need of reflecting the dctivity or. the docket.
, .." (opinion in Support 0' Keversal), 529 Pa. at 364 n.l, 603
A.2d .:It. 1013 n;l (1992).
Although the dockp.t provides an empirical. easily verifiable
crlterion to trigger review oC a ~~~~, it. is too crude a mechanism
to rliAtinouish truly inactive. stale cases from active ones where
activir.y is nol; reflected on the docket. Dismissal of a case is
ear coo harsh a result when the case is n,)t actu.:llly stale but was
moving alowly forward.
APplying this standarn t.o th~ inst~nt casa, we find that. the
lower court abused its discretion in diomissing the case for
inar.t,ivity as a compelling rcaoon exist,ed for the delay in
prosecution. TlIi!l case had an unusual ammml", of actb/ity no't
entered on the dClcket: Lhl:! ul:!ath of Appel.! ant.s' first attorney and
the substitution of his partner, /In Llttorney not known 1:0 or
selected by Appellants; the taking of depu:;i tions of a 11 the
parties: I;hp. repllacemenL uf Appellants' second atl:.or:ney beciluse oJ:
Appel1nnr,1' perr.'cption that he was not moving LheiI: caoe forwClrd;
the ditficulties encountQl'ed by Appt!llants' third attoL'ney in
nhLuin!ng the case file from Appelldnto' Jocond attorney d5 well as
difficulty in getting the second /ltt.orney to withdI:C1W his appear-
ance; the eXChange of le~~er~ seeking a settlement of the caoo,
and, finally. u tp.lephone discussion of certifylng the case ready
CUt' triul,
(.7-75-19971 .. 6
, '
,.
Quite simply, the forcgoing record removes t,l,is case from r.1I!;,!
c"lI:cgory ot :ital;;! cases tlldl.. tho rules of jUdi,r:ial .:<clmllll:Jtr.:ltion
,'ire dcsigwnl t.o aliminat.o fr~m the system,
l\;", we have already
indicated, anyone of t.he cit.ed facl:ol's would be insufficient to
salvage this t;8:J1l fl'om dismissal for inactivity, yet the tot,al
picture painted by this record is that of a case proceeding, albeit
::lowly, towards disposition. '1'his CClSP. pl'avides il perfet:t extllllpltl
of activities and circl~st~ncA~ which, in combination, justify a
delay in docket inactivity though each circumstancc alone might be
inaufficient," IL was therefore on abuse ot discretion to tor.mi-
na tc the case.'
Accordingly, the order of the Superior Court is reveI'sed and
the case is remanded for further proceedings.
'.
.Our holding does not repreflent a departure from the rule
th"t, in thp. ordimlry r.rlSH, all attorney's mistake or oversight does
not constitut:e a compelling reason LUI' CI ulolldY in ptosel:ution. See
Hille v, Uh1. 293 Pa, 454, 143 A. 115 (1928). At: 11 minimum, a
plaintiff must provide co. rp.aJ:'onnhlf'\ AlC[\111ntl~.ion for coun!lcl's error
to prevent dismitltlal under Rule 1901 or entry of a judgment of non
pros. Moore v, Georqe Heebner, Inc., 321 Pa. Super. 226, 467 A.2d
1336 (1983).
'As we have found c.hac il compelling l'tlCl::iUn tlXi:;Ltlu (oJ: the
delay, we need not ex.:unine whether Appp.llee:l wore act.ually
prcjudiccd ~j the dolay.
[J-75-B97] , 7
()
,
j
C)
u
l
.^""'t'j
For. the reasons set, f.ort,h
1,."i", we hold ,hac ,ho CqulLahlc p""cipl., .ndcrlying ,ho cnL'"
of 0 jud_nt of non p"oo mu.t h. ".,ogni"d and the p"......t'on "f
prej udic. fir" ,"uncia"d in g.m, pI ni"o . Inc .. v. In,ur anc'
(I' )
.
.: ~ vJU1 q~- 01;;-09-fflj
lJ_200-l9971
IN ~Hg soPRSMB COOR~ OF PBNNSYLVANIA
EAS~ERN DIG~aIC~
: No 10 B. D. APPp.i.ll Dut:ket. 1')1)'/
LISA R. JACOBS,
.
: Appeal from the ordel.' of. t.hf:
:5upe1.'iO~ cou~t dated March 7,
:1QQfi. ~~ No. 00599
:Phi1odelphio 1995, ai(irming
: the order of the court of
: common pleas of Mont.oomF.\l'Y
:counLY, Civil Pivision, dated
: ,Jal1\l/)l:"} 17, 199!i. at, W.. R7
: -12131
i\ppelll1nt
v.
H~RY HALLORAN, PATRICIA
HALLORAN. LYNDA FYFFF.-MCF~nDBN.
GENEFV\L MOTORS 1\CCF.PT~NCE
CORPOIU\rriON,
: SUBHI'fl'ED: Deo::elllbeL' Z, 1997
A1JP~l1tH!~
OPINION
DECIDED: April 2, 1998
.
~
Thi' app.al ,.i..s . igni ficant i..u" "g.,din9 ,.he ...nd,,'d
app",.b'. LO th' di,mis.al of a c,.. fo' in,otivi'Y pur.upn' '0 ,
MR. JUSTICE ZAPpALA
defendant'::; motion (':It: non pros. \
eo.o"Y 0 f North ","~,'i ". '''' po. ",. '" n. '" 1006 1''''' 1. .""
be abandoned.
APp.,lant.. Li.. .1",0"" w^' inj"". in ,n ",comob". ,"ol",;nn
'The tWO cOlllpanion cases of !3hope ". ear.11e. .'- ..p,.. -' :......... ]>..2c1
_ ,,,"I. .nd .,dno v. "e1m"n, _ '0. _, - A.2d - 1199B1.
.1'0 decidad today. invnlv, tha di,mi".l nf "tinn' inr inaot;vit.y
pureuant to 100.1 ",1" impl.mentin. .ul' of JuOleia1 ndmlni"W
t>on 1901. In ShOP'" W. hold ,hat the "mo ""n"."d i' .pp'ic.b,e
"." ,.,.c. \ "" ,. \ nM i'" r' "'" t t" , "or enda n ,. ., ,., tt" n f" r , j ".,m. n' " f
non pro' ,,,d thC coutt" di,mi".l p.reu.nt t" aulo 1901. In
Marino. w' hold th" n",,-doek.t ,e"viCY c.n be ~.mined in
"eLe,.""""" w"",,,"c a ,,,,,,,.111n, ,e"'" .,i"-' fnr ,'" ".lny in
pl.0$f!r.:llt.:lOn.
.,~."--
-
ir.'1:ll'/iny a vehlr.ll~ .)wn~d by AppellHp.!,\, Harry and P.:aU'l.:i"
" 'I
..13_ _i.'r~n.
When Appt:dldllt. filt'lrl l\fn' CUl1lp 1./1' 11( in AU(/'J:Jt. rJt 191,17,
$h~ be 1 :.evp.rl rh;,lt t.h" vehl.dp had b.,.m ':11: iw:n b,' AlJ1Jl'iJ I.r.'..:!, l'YI1::1"
Fy:.:c-HcFaddcn, with t.hu permi:lHion of th8 H,lll"rans.
On November 16.1989, il1most loWJ ~'eill':; ;:lnd three month::; tlfr,F.\'r
r.h.:- ::Qmplaint \~ur, flllo!d, Fyffe-HcFuddl.!1I testifind "1t " depof.,iciol'l
tha: ~h" Wd~ noe. driving tho vohiclo nt Lhe ~imc of the accident.
Ir.:;c.cOld, :,;1:l.! ~t,atp.rt that a trienu \'la,J driv; no the llaUr,.ranil'
vl.!liiclo ',.;j thout thdr conSf3nt. This admission created a possiblll
\Inir.,'ut'l,d rnotorir.t dilim .:lgdilll'lt. Lh~ i,nr;ul'l~r of thlo! vehicle ill
.....11' c;. ;,ppel1unt, wa:; it DO!lssenger at: the Lianp. or the <:011isioll.
:n :;'~rJt.ember nf 1991, the dor.kf.!t l'cf:lec~,flrl c.h~ wir.hdL'uwaJ Ot
:'pp."l1iJnt'::l counsel ,':Ind thp. ilppearanca of het' ne~J counsel. Entriel'l
W:::<'i al::" mildn on thfl dock~t th(';Juul: Occ,ober J, l~!ll. No dllcket.
,'acti...it:.' occurred Lhen'!<1fl:er until October 26, 199J, when l,lle
corr.rnon p1(~i13 coul:l, i:3sued <1 notice ~I)iil: It, wuuld t8rmindte the caSE'
tor l.'ld: ,,1; .:Ictivity. i\ppl~ll.:lnt filcd an "',~Livl.! status ceL'tiric,;l
t: ior. en HovemLlo!r 5, l'l93.
On April 15, 19~4, Fyffe-Mc:anden filed ~ petition for ent~Y
,-d a judgm~nt. of non pL'OS in which the JlallL>ritns later :joined, On
.:It <.lur.uc June 23. H!l4, Appl!llant provided Appcllep.$ wiLh an experL
\~ltnn::;:; l'OpOt't 1m dam,'\lI?S ':IlIU rcqucr,r,ect the:n to sigll (I prul;lcipa
~artlfying the r.ase ~r, reauy fnr t~ial.
'I'he COUt't entered judgmentll o~ nnn pro::; tor A[l[l~1 tees by'
ot'c1"~:J d.:lcccl Suptcmbcr 26, :19~4. Thcsv orrtp.rf,l were :lubsequently.
'1o'\l7<1(;,"\1 l',t:'lII'\ir.g t'.;condderation and 011 ,J"tnll,'1~y 17. 19~':>, the onlers
(J-200-199'1) - 2
werfl rein:ltat.p.d.
i\J;lpellt\nt f 1. 1I-:u 1:\ motion FOL' l."1~r:ons i.r.ler,'lt iu::
wheLein slll'i L'equest.ed thaL the \,;ourt: open the judnmF.\nr,,:;.
The c.:<'\l\L'1.. t'." (\I;:;.;:d l,l) ~lrllm the judgmfHlL:'1, hold.i.ng t:h.:.l: dockeL
; nact.lvit.y of two years and six monthsJ establishHll d lack ot (IUH
diligence in pursuing che claim: that the exchanue ~f corre5pnn
dence l'egclL'ding the status of the uninsured motorist claim and the
change of counsel did not const.itute compelling L'aason::; (01' tl\'=
daL~y: 1 and that: pl'p.judicp. to "ppp.1 I "Pr.~ rRr.1l1 r,; ncr from ~,hn rlnl "'Y
1s Vl't;JSLUlIed. It rej ected Appellant. s claim that Appellee:; sllffel~ed
no actual prejt1cli ce ber.i'1Il:'i~ ~.he ce.!J(: Wd!J I:eady fot' trial. 'l'he
c.;UUL'l:. Lul'l;hec refused to con:lidcr an affidElvi.l;, of I\ppelli1llt' fi prior
couns,~l whi ch allegerl that: the Hallorans' counsel ol:ally agreed to
allow the case to be delayed while Appellant pursued the uninsuL'ed
mot.or.;i,st. claim. The court noted that the alleged oral ogreemF.\nt
wall not railled in the responoe to thc pcti tion for judyml.lIlt: .)1: utili
pros, in the supplemental response or 11t: oral argLUllant. It. (uL.thuL'
::;Lcll,ed Ll'adl. Appellant: frJiled to cake discove1'Y relJardincr thc'
,
,.
, "
. ;/~H
'.ppar,ntly. ",' oou", .ea"red the delay 'rom the laet dOCke/(~~j
entLY at OCl:ober 1,1991. to the Apr.;,l '15. '1!l!l4 filing of t.hH Hill ,,;,j!lcf.
lorans' pe,ti,tion for <I judgment of non prrJs, , " "h';l~{1
'SpecJ.fJ.c,'llly, the court held that tile tlmc opcnt dec1.dln~ht,'"r.v,
whether to bring the uninsuL'ed mOl:.odst cluim const.ituted ,) legl'lly)H
cuLLlc.i.cllt.. c....planaL.i.ol' fot' Dom'~ period of t,he clelay. It ,....a$on""d;h~;~;
however, that such decision should have been made in a matter,. "fX1Y,
days and should not have been res~L'v~d unt il the rer:eivin!J lJf.'.i;CI)'f~F
formal denial of coverage. ~le court rccogni:p.o that new counGol~~P
was l'et.:lined only three weeks pri01.' 1:0 the pcriod of in..~ctivity;:',':l~~
'l'hl~ COllrl", fnl.lnd i r_ l'flf'fi,'m~bl e 1:0 t\llt..'lw counfiel r,hrp.1.'! months,.t"::i:>!i'..!
f:amilillri;:e himsel f with r.,hF.\ c:;n~t:l, Lhu;l It!l1ving nn IIne:<Illl1illtii.\&';:
pt.H'iutl uC l.\t,luy of t,wu yeuL'tI unu l.hr'~c n1C1nt..h:;l. ,. ,i,:;i;;,!,
IJ-200-19971 3:'i~~r~~,
:,;t:W"
": :'~, i"i,
'''-.'~'
".i\;:/";\'; .
.,.".ifi."J
.,'::;:?~
agreement.
Tr.e Superi.',:ll: COUl't <Iffirln\!u ~n tho;, b.:lsi..!i llf r.lll-! !':1:'!Mltlll pll-li&G
cc'uL't, opinion,' .1l,tclql';! K.!lly diSili'H1 r: red, finding l:har. the CI:'lIun"I',
pIe,,:.; court abusf:rl it3 c!i s.:'.'~r;ion in 'ml;c~'ing I,llI:' .llld'Jrn",nL:.; lIt nnl',
P:;O$.
He con'~lud,~d that, t:r,;n:;idedng r,!'~ equuahlo pri nl~lples
underlying the entry uf a :iurlgment oJ: llur. pl'O:;, AppelIA~:;l :;h('uId
no" beneut CI'om any dl.'!llJY ill pros f;1CU I:. il;n \~hich r,I1,:'y, in DCln.
Cl"c:.r.cd.
The CJuestion ot' grant.ing .:l non PI'05 dut= r,n r.he failuJ:'>.l of t.hl'l
pl.:ai:H..Lf't' to pro::;ecutc his action wit:hi.n Il redsonablp. time L'ests
wi~h:n ~he discretion of the tri~l court and will no~ be disturhoct
ab:;cnc an abu:;e of r.liscrp'~,il,l/l. Gallacrher v, Jewish HosoiLdl Ass'n,
,1;!S P.::.. 112, 113, 228 A.?d 7n. '/:.13 (1C}f.i7).'
l'l'he court tl'e,1Led lIpplo!llant' R motion for: reconsideI'<lt.ion uS
~ patiriun to opcn judgmen~ of nun pto:; as it contained all thA
cl~ment5 nece!)!),:uy for such petition,
\'10 recognize thaI, in m:rlr.H' to rl;\rr.ovo a. judQlOent "f non 1-11;'C1$,
thri-lc elemClIt:13 must, be met: (1) I.l petition t.o upen must bp. promptly
Eilod: (:!) the delay IIIU:Jt. be reasonat.ly e:~pl(lir,ed; I:lnd (3) fact5
mURt, be shown to exist: which suppurt a cuu:!!'! at <Jetlull. Pi.n(.!
Town~h;n Wilter Co, , Inc, v. r.elmont 0; 1 CrJL.o., 425 Pa. SupeL'. 4'/:1,
62~ i\,2d 703 (1993), /l11oc, denied, 53'1 Pd. GG~, 644 A.2d 1202
1l99.:). HowevF.\r, since Appellallt,'s unrJ,;-r'lying claim i(1 that the
court erred in enterincr the non pros, O\lr. opinion discussAs thF!
standJrd applicable ,to that: issue.
, In Gallaoher, our Cml1:t used t.he t.erlO "rnanifust abuse of
disr:tetion" in describing the apPI'oprii:lte fitandi:ll'd of revlow.
GllllilqheL' has been repeatedly cited for thi!) proposi.tion. See
,Jume!': Brothcr~, Compl:lnv v, Union Bankina o1nd 'l'ru!JL Comprlny of
1)lIh"i~, 432 Pu. 129, ],32, ;~47 A.2tl 567, 589 (1%8); Penn Pininn,
529 Pu. at 354. 603 A.ad ut lUUB,
'tIe hilve subllequently held, htlwp.v~r. th..r, t,hcL.c b no di::t 1m;-
cIon between Q gross I:lbuse of diar.retion standilrd of review and nn
nbuse of discretion Rtandaru. SeD Moore v. Moora. 535 p~, 18, 2H
n,4, G34 A.211 163, 168 n.4 (1994). The Lerm "gross" is meL'ely
:;urplu~..ge which doe:.! not rl1.cer the sr.anda=d of review, SP.(' i:I1so
Comm,.,m~"'i\lth v. Brown, _ l".,. _' _ i\,2d _ (JYYH) (Opinion in
Support of ,,\ffirmancf<). LikAwl3"-" ~IU find the use of thp. term
"m~nifp.~r." in "mdnifAst abuHH of di~~rHtion" hao no IHDRl ~igniri-
[.T-~OO-l~!)'1] - 4
The lo\~cL' coUt'ts "DP1; PorI the :;l;C1ndal'd tOL' eut,!'!rincr ,~ jl1dr,rIl\l~nt;
uf non proo announced in ~",nl1 pipj,nq. We beg;;II' UUt dUd ly:';l:; i I:
Penn P luin.:, by rtlHr,llt,lng the, \:',I\l:ec part tcot s-..r. forth i n .l.;,m~"
Br'::>ther~ Company v, Uni <:m f3,'lnkinQ I;lnd Trllst Ct)mO<lnv "f DUBois, 4:12
Po.. 129. 132, ;]4'1 lI.2d 587, 589 (l!lI:iI:lI,
A Court may prop'~rly cnt,er fl judgment of non prus when ."
p~~ty to the proceeding h~~ shown ~ want of due diligenc~
in fcli 1 ;ng to proceed with reClsonable pr:omptitude, ;:Illd
there has been rio compelling reuson rOl' t:he delay, i'1od
the del,!lY hM; nillHled oome PTejudice 1..0 the adverse party,
such aa the death of or unexpln;ru~d absence of material
wiLnessf,l:i,
In Perlll Plpinq, where oix years had Inpsed IiftUI' I..hp. filing t,lf
the complaint, I..he lower Ct.1Ut'c,s had agreed chat (1) there WcW an
ohRf!nc:e o( due r,li,ligence 111 prosecuting the ca:le:: and (2) there was
110 compel J.i ng l'eason for the deli:lY.
lit issue, l;hc:n, Wi:lS the
prejudice prong. Citing ShrulII v. Philad/!lphin Electric: C(.., 440
I'n, 383, :JG9 1I..2d 502 (19'/0), our Court found thM;, ~,hp. oelay wiW
"presumptivF.\ly prejudici,lll u and went 011 LO hold that "in cases
invulviuy d dt:il....y ,)f two yeOJ:'3 or moT'l;~, \,he dcl.:lY will be presum..d
prejudicial for ~l~poses ot ~ny proceeding to d;smi5s for lack of
activity un Lho: docket.' rd. at 356, 603 A.3d at 1009. We also
, -
discussed whether t.hp. preoumption of prejudice was sllcr:e~sfl\l1y
L'ebutted. We cone! uded that becOl\1se an unexplllinl,ld d12lay of fOUL'
years existed, Which l;!xl:l,ledec! the two yea.l' period i:lrt.,I;lL' whic1:
projl,1r1ir:H h; PL'll:;wood, the presumption was n,,~, l-p.hll~.tr:d.
Appellant contends that our decision in Penn Pipinq was noL
cance ond :L:; tlll~l'eforp. llImec:essalY L.) describe the applicClbl P.
~t,nndl1rd ,
r,T-:lOO'199'11 - 5
l11p.llnr. to a 110\,' a de;,f.;:ndctnl: to F.\nj,:.>y t,hi: blilnefits I:lf a jUdgmenc, ,:'t
non prQ:; when thl;! p.o-l'lcll'l '.IE delay Wll,~ .::Il<lrgH"lb 1 r; t,o OJ: C,~\I:Jl,!t1 I;,y
the;, def~nd<lnt. ::;h". fl,lrch..r argue!:: th~t J.t i:'l inhr.'l"r.:ntly UlILc.llL t:.",
r.ti:m\t'::;:; the ';/lse when no tlct\lt'll pre;udlCt; \~US p'i'Or.."bl ; ::ttlr:d sinGe til,:
C.:ISC \~JS ready for trial. 'l'h'~se argllments essenr,i,'lly d1"l!eng~
tlll; propriet.y cd: the concept or presumed [Jl'l~juciice,
1\1: t <:L' ell! exr,.;onaive review of the lUilr,or.ical ratLQnale
undGl'li'ing thp. entry oC t1 judQI11Hnt ':'[ non \,,)1'0;;: a1c1n9 with t,he;,
l:llrn'nc practical di1elrund~1 which hove l'csulL8u from application at
the prI?9\lmption, we conelud~ that, tilt! t\~C1 yl;!i.lL' pre!lumption ot
preJL:dic.< mllsL be abannoned.
';'he '::Ollrl:S l;lf pennsylvania have ]onq recognized the existenr.:1Jl
,)L th", rll)vl~r of tht! court 1:1) ellLl,!r a iudgmcnt of non pros in COllse
I'JlIl?nr."~ of long delay of pl:'OSecllt, ion or c.l l:<lIH$e. War lUll v, The
?C'rIr''''!lvuuia Railroad Comp~ny, 176 Pa, 172, J~ A, 1116 (18!l6). Thiu
pO',",eJt" .,rigiIlLll:l:!d ill common lUw, prinl' to th~ passage oL any
Ztat'.ll:<l. l!:L.. The gran I', of non pro:! ',Ia:; tl."adiLiulltllly bas~d nOL
upon .1 :;tt'll:ute of li.mital:;f.lns. but r,'l~h""I' upon the equitable
principle of lache:; which d,),):; noL inv(,lve the passage .)t c,
sPQciEil: C1mount of time. Manson v, l"ir:or. Notional Rilnk, 366 Pa.
211, 77 A.2d ~199 (l!i~1l. "LacheD Glrises when a defendanr.'s
PC,31:::10n or ),'iuhts lire $() pn'lj:/dlC:f!\'i by length I'll timA (lOd
ino;,:r.usuble delay, plus ,'1ttc~ndanl. flint,., ar.d cit'cwnnt,nn"c.::o, Lhut il;
wnllld be all iniu~ticQ to permit pr~senL~y the assertion at ~ claim
dg,:lir.:;I: him," Bach ESr.o'ltE1, 426 Prt, ):'0, 3~9, 2:\1 A./.d 125, DO
119b'l) , qu,",t,;nlJ, GI'nr", Trust, ,j91) P'I. ~('J, /.lJ!)-J70, 13~ A..~(I :183,
lJ-:!OO 1997) Ii
:J~7 ('19'i7) (cmpha::;b Ilrld~d)."
<:',)nsistent with thi,:;; IllJr.iull, l:<Il'!Y 1::.:1,"'::::; h'illd that if rttil.'.j'!.\
in P~'C):lccuti':>I' ",rc 1:.0 ;) great cxtUlIt. '.lUG! t<:. t,h", rh~fflnollnt'::; "Wr.
procurement. it wuuld be <In inJu!lt:.i ce to aU ow t.he deCendilnt t,r:.
impute 1ache!:. ~lilllIUl.t: v, And"'I'son, ')Oq Pa. 402, 1f;<1 A. 333 (1932).
110re importantly. wr~ <,1$'"' hl'llrl t.hat the plaintiff wi..1l not be
penallzed for laches it hill de.lilY h.:ls nor. resulted in injulY LI) la i ','
lIovflrsary. Hnnr;nn v, First Ntltlona1 Hank, 3GG Pcl. at (,15, 77 11.211
at 401-<102 (ll)!il) , citing Montrrr:>ml:1r.v Brothers. lnc.. v. Mnn~,qOrner",
269 ~a. 33~, 112 h. 474 (1921); RAlmer v. Smith, 205 PII. 67, 70,
131 A. 663. 56!:; (192ti); Ouinn v. American 1jpirill Su1"ino & Manufac-
turinq Co" 293 Pa. 152. 160. 14'11\. 1155, 85B (1928); pC",tt.er'l'ith.
& Trust Co" hrlministrator. v, Fr~nk, 298 ~a. 137. 141. 148 A. 50,
S2 (1929) !jehl,,,,son v. 5htlfp.r, 35.1 l'u. 458. 463. 47 l\.:!d 66~, 66fl
119~6); Lutherland. Inc, v, nnhlp.n, 3~? Pa. 14~. 1!:i7. 53 A~2d 143.
150 (1947); Joseoh Melllick Buildinq & Loan A~l!Ueldl.lcn v. Melni,ck,
3Gl Pa. 328, JJ9, &4 A.2d 773, 778 (1949).
con~id",xin(j \',hftRf! equitable tJI:incipJ.es th,"!t undc:'rUe ~,hf! f!1\t.1.')I
of .1 judgment oF. non, pX'os, we find that, "\lr adoption of 11 l'r(.':/umJ)'
~Black' s !.lict iOnCll')' l'limilarly proviu~:J LhClt. t.he uut.:L dnF.! \"It
Jachf!r. io
based UpOIl th,., milxim t.hat equity llidH the viqilant and
IlU~ Lhose who slumber on theil' d aht.l;l. It io definud as
neglect to assert .:I right or claim which. taklHl Logcl;hel'
with lapse of time ~nd other circum:Jl.'tnce!': causing
px'o)udir:e to auv~L'S'" p,'lrty. operates a:; CI bar in court ot
equitY.
Illack's t,(iW Dir.tionuL"./ B75 (6th ""I. , !l!lO) (F~mnht:lsis ,"ldded).
(J-200'l!)!)" J . "
t_- ' .' , . ,
. . , ' . ,
I
I
,I
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, (
cion ot pI'l~judic~ il\ Penn pioina WQ.S crroneous.' simply lJut, , th,,,
preS~Jmpt.illn ia 111l;ol\:Jiotent with tho weU-l)otuol i !':t\f~(1 I1M.ioll r.lu.r:
I"III;! ildve,l'Slll'Y must :suf.fp.1." h,~l:,m bt:lL'~L'''' .J l:U:1O: i:l dilHniszed for l/1d:
0: prosar:util'::>n.
S\,\I;h h,1'rm 01' pl'ejudice to chI;! <Iuversin:y is th,.
very bu:, i:; upon whir.:h /I c.l ",im of l.:1choo iu foundeu.
\':~ recoYllhe Lhat defendant,:; m,)y Of) r,l'o'lj Ild:.ced by undue dl::l,~ya
ln lll:,i.gLlCio:1 - - memories tade, '"itneS5er. di5<lppeal' nnd dOI:U1nenL:J
i)M:mr,.;, lost or l.lrr;> r1A:::~,rnyp.rl. Artdir.ianully, pending lawsuicz often
ea:,::;!; \Indue SI:reS5 ond onxiet.y. Howevel'. Lh~ I:Ult.5 r,:oncf!rning the
di 5rr,~J5Q.l ot case!; fol' lnact i vi ty reflect /:lolj cy concerns whit.:11
implicate the interests of both plaintitta and rtefendantu. IL is
:mn,:r:cs::;ury t.o preSl.Imp. prejudice becv.u!;e Lhe defendant iu fl'cO 1...)
prmiflllr, evidence of. actual pl'",judice. I:1 casc!) where nn iH:tivH.y
has (h;r;Ul'l'ed (or a period of twa yei:lrs, but tile Utl(tlllu':'llL h~:3 not
lu;l~ hi::! .:lbilil:.y t;o lldequtltely prcp.:lro .:l dC,\fr.ln"l'l.
, .
:Lt. oorvos no
equ1l:,)ble pllrpOSp. 1:0 diomiss the p1ainl;itt' s case solely due to the
!Ja:;:J<I'.J~ ~,I l.ltnt't. There is no J.ogicC\l dist"i.nr.:t, i':m bp.l:ween the h.:lrm
c.:lU$cd to " dt~fen.%nt, hy the plaillti.rr'$ rl~1AY or l",wn yemr::; and Lhe
hd I'm r,.lllAf!d ~,') a def~lldant by c1 delay of two yea,,'s less one day,
/oloreover, liS n result of defining a period after which
prejudice is .:lutorn,'.ltically presumed, the pl'ac;t,ic,~l ilPplico':ltion r,)t
~3 noted in thi~ authn~'R dio3cnt1.ng opinion in Penn Pipina,
tho Etatomont in Shrum providing that thA ~eV~1l Y~dr ld~~~ u( Limp
'10133 "pro:JumptivelY prejudicial to all pi:lrtie::; even \~ithouc. any
s[Jto!dfic showing of preiudice on the rccol'l.l," ld, aL 386-87, 36!l
,;.2d at, 501\, was merely dictum. He concludcd in 5hrurn thaL no
In':il..:.<.)ns for non ptoz wp,rn f i 1 Nt FInd thlJ t che 10'Ner court did not
doc ide the case on thF.\ ground t'Jf delay alone. Shrum thel'efnra did
nor 118C a ne'N At,ilnOi'lt'rl LOJ: the entl'Y of '" judgment nt n,:,!1 pr."'$ .'1ll
,')111" r.ma.t C:Oll:liti~l;''''~\ Llv~ '.'ll'p,-",1 ,;." ;, t,~, rn..,.; r,:;.
[..1-201)-1(1(171 . e
chi:. equi table doct tine ha:l bel;IJI1\e enigmatic. Therc: h,'1:> h'~cn ';1
.
lud< .~f consistency ion the It)Wl::l' l.:Qurt3 ~3 ~() w\)t;d',\H)t' ~.hA l11'Il:lIlIlIP
ti':'\1 i;:\ t't':\lII~,~,''1bl'" I'1l1d, if :;,), what type ,)f ':Vic!Ance io requirod..
'l'hi:; inuicateo to Ull that thp. lIpplicatiQn of the presurnpt ton 11<1:;
proved to be unworkable. Furthermore, it: WQu!li be unfor~,11l1/l.te t()
::J136 Lhosa macters which havp. hAp.n c:lp.~n:ll;t.l from the docket dllp. r.1;)
chI:! t!nLe,dnlJ .:If jurlgment:> ("Jf non pI'O:l reappeal.' ,,;; ~tt.o\'ney
1IIc11pl'cu.:L, j,I;:t;I 1::10 j ml'l.
'l'hQ p.ffAr.r, of our dflc:ision today is to reCurn to thl:! thI'ee
part test of Jame::J lIL'Ochel'!l. 't'o cli.smir-;:; i.I r.nsp. for inactivity
p\lrSUrJll~. to a de(endant' s motion tor non pros there mUllt first. be.'
a lack of due di.l.igence 011 tht:! paL'L. or the pl"inti ff in f,'1iling r.("J
proceed with reasonable promptitude. Second, the plaintjff m\lst
have no compelling reason for the delay. Finally, t,he del ay muse,
1':(HIlW (Jt.:tu;~l pL'(:judl..:~ LO Lh~ dcfc.-ndant.' ^s alwCI:fS, t.hi$ dli'~,,;.,.m;-
"For exampll:!, ill Mudd v. Nosl<er Lumber. lne., 114 '3 Pa. SI.1PF:'l',
463, GG2 A.2d (j(jO (l!l!l~l, t.he Superiol: Court. held that the
presumPtion of prejUdice was rebutted b:f the conduct, I;lf t,lw
defendant seekin(l n jtldQ'll\ent of. non pro::l. 'l'hp ~nllrr, fOllnrl ~,h;;r
where l:he circumst.ances indicllte that the party seeking non Pl".)U
has come to the court of equity with Ullt:lllall hands, the parLy io
estopped from obtaining the equitable remedy of u judgmenL I\CJII
pros.
More ~ecentl:f, a different panel of the !luperior COllrt, held to
the cOl\tra1.)' in State of the Art Medical Products v, Ari(,!~ Hedll.:i:11.
~, _ Pn. Super. _' G6!1 A.?d !1S'/ (199'7). 'l'hl'l .~Olll'r. r.hm'A h'"llrl
thLlt che penn pioinq presumpci.)n mllY he rp.\:lutr.eci only to the c:xten-:.
t.hTlt, /I plnintif f lIU'1y demon:;tr..~t:e that the ul1e:~plained pO!l'ioo;\ e.. (
docket inactivitY is Less than two yaaro. Thin intArprctatiull
precludes L'ebuttal of the presumption because it: the plaintiff c.:llll
63tobli3h thol: the p~riod at delay io 1000 Lhan two ycar~, the
presumption would not apply.
?This t'ulp. shtt11 clpply L,I,O 1111 ~lI~JllU 1I1J 1':1'1,"":' wh~r't;' Lilt:' i :;;:~IIR
hn$ bevn preserv~d.
IJ-20t),199'/! - lj
.
. .
nation is to be made by the td~l r:aurt, wholJC dp.cision will not', hi~
disturbed ~bgent an abuse ot ui~crecion,
In JtlIllH::; Brol:hel."s, we not:.~d LhoiiL p,,~jud.i.ce cO\lld be p.?r,~h-
lished by chI) cioatll '.11' ilhl';Ftnl~A rJf 0 1l\1:\teri,11 wit.nr::lO. The 51.1Pflt'.i.Ot'
Court, ltnH CUl:thel' defined prejudice a:: "any subst"nti.:\l r.\iminllHnn
uC u p~rty'~ ability to properJy prysen~ i~s r.ase at LciDl " MeL~
,C,,)ntractinq, lnc.. '1. Riverwood Builders, Inc" JGO Pa. Snpcl'. 445,
451, 520 A.2d 891, 894 (l~lB'1),' citing Amel'ican Bank & Tru:Jt, C(lInpanv
v. Ritter, TUltlt ,'Inrl Haaven, 274 ['Cl. !::upor, :2BS, ~19 1I..2d AOll
(19BO) ,
A:;; l.he court p1."csumed prejudice in t.he instant Ci:'JSH, we l-em.:lnd
l;he m~tte1.. for a detf.lrmiuaUon of whethF.\r the H<llloraml wflrA
ar.~t nit 11 y pnd udicec1 by the rle1.Il.Y in protlccuLlCln. In
]I. temand i!1 nor, neceSS<lry ~s to FYffe-McF<ldden, hO~lever, i~g WI)
find that it is clear that she came before the court wJch'unclean
hands.
1\ party who !leeks thp. equitable relief provide(l by the
entry or a jmlYlIlI-lIIL u( non pro:s must do :;w w.i.l.h clean hands. Mudd
v. NO!lker Lumber. Till'!., 443 I'o:l. AllnAr. 483. (,(,:! A.2d 660 (lCJ!lS).
The doctrine of UIl(.:lean hClnds is
,
fill' mo~e than a mere bmwH,y,
ordinance tl1i:\L dl~se5 thl!: dout':!
one tainted wir;h inequitableness
It i~ CI self-imposed
of a coure of equity to
or bad fnith l'e1<lt'.ivf! to
l"we need not reach the is!luC oF. wheLher t.ho;! t',I::ial court err~r.l
in refu~ing CO CDnRirler the affidavit of Appullant's prior counsel
which ::tated that the Hi'l!loL'ans' cOllnse 1 agreed c.o' ~ll()w t,hp.
prosecuLion oJ: the case to be uelayed while tht:: unll):;;ured motori ~lt;
claim wus pending. '1'11;$ Il.ffiduvil'. W.!.l:3 fir::t presentp.d i.n
t\ppellant'::; petition to open. AS we find tl1i:\l lh", I,dill t:OU1:t,
employed the incorr~cl s~~nrl~rd in initi~lly entering the nan pros
iud(J111ent", ,)ny uL'gumenc. relating tr;, the ploltlLlon Lo open t,hp.
jlltl\JllIcnL need not, be discuRsed.
HINKE, husband and wife,
710 Sunhaven Circle
Mechanicsburg, PA 17055
Plaintiffs
NO. qS -S7~ CWd T~
v.
I
I
I
I
I
I
I
JAY MICHAEL WAY, I
Road I
PA 17055 I
Defendants I
MMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JAY R. WAY and
247 Ridge Hill
Mechanicsburg,
JURY TRIAL DEMANDED
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY I
Please issue a writ of Summons against the Defendants in the
above-captioned matter.
Please direct service of the Writ upon the Defendants by the
Sheriff of Cumberland County at the Defendants' last known precise
residence as followsl 247 Ridge Hill Road, Silver Spring Township,
MeChanicsburg, Cumberland County, pennsylvania, 17055.
Please request the Sheriff's Office to forward to me its
Affidavit of Proof of Service upon completion of the same.
LAW OFFICES OF JOSEPH A. KLEIN, P.C.
BYI
'~Ji_
Mark S. Silver, Esquire
I.D. No. 09825
100 Chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for plaintiffs
Datel February 3, 1995
".
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Commonwealth of Pennsylvania
County of Cumberland
Jerry E" Hinke and
Peggy L. Hinke. husband
and wife
VI.
Court 01 Common Plea"
Jay R" Way and Jay Michael Way
247 Ridge Hill Road
Hechanicsburg, PA 17055
No, --?!?:~7!_f.!Y..lL!_~!!I!_._.m._. 19._..
In ._____ . f.! Y.! J.. .t\_q!:Ac.?!!..::. .k'!~__.____.____
To -!l!!y.-R.....Jl~~_.llQ1LJJJy_.W.cJ1ejll__WAY
You are hereby nolilied that
,.-~~~~~-~~.-~~-~~~_~~~__~_~9JlY__~:._!!!!!~~_____._____.__._____..__...______.__......___..
the Plain tills have commenced an action in ..------.--.-!::.!y.!J._.l\.<<<!=_:!:!?lL::.!t<!!!7.___._._____..___
agalnst you which )'Ou Are required 10 delend or a delaull judgment may be entered against you,
(SEAL)
Lawrence E. Welker
,...-....----.-..--p~th;~;t;;y.-.--...-...-------
Date _____K~!!l,O!I_<!!".x.__~_,.________ 19___~5
By --.fjp~til~tI.~.tl~_)f~________
i! Deputy
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COMMONWEALTH OF PENNSYLVANIA
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and . No. 95-576 civil Term
.
PEGGY L. HINKE, .
.
Plaintiffs .
.
v. CIVIL ACTION - LAW
.
.
JAY R. WAY and :
JAY MICHAEL WAY, .
.
Defendants JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, 1998, upon
eonsideration of the Motion of Defendants for jUdgment non pros, it
is hereby ORDERED and DECREED that Defendants' Motion is GRANTED.
BY THE COURT:
, J.
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COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and
PEGGY L. HINKE,
Plaintiffs
No. 95-576 civil Term
v.
CIVIL ACTION - LAW
JAY R. WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
MOTION OF DEFENDANTS,
JAY R. WAY and JAY MICHAEL WAY,
FOR JUDGMENT OF NON PROS
1. This case arises out of a motor vehiele accident
which occurred on or about February 10, 1993.
2. On or about February 3, 1995, Plaintiffs, Jerry E.
Hinke and Peggy L. Hinke ("Plaintiffs"), filed a Praecipe for writ
of Summons against Defendants, Jay R. Way and Jay Michael way
("Defendants") .
3. Thereafter, plaintiffs filed praecipes to reissue
the writ of Summons on March 3, 1995, and March 27, 1995.
4. On April 18, 1995, the Sheriff's return was filed in
this matter indicating service upon Defendants.
5. Since April 18, 1995, there has been no substantive
docket activity in this case. A certified copy of the docket
entries in this case is attached hereto, incorporated herein by
reference and marked as Exhibit "A".
6. Moreover, Plaintiffs have failed to pursue this case
in any significant manner.
7. The Pennsylvania supreme Court has held that a court
may enter judgment of non pros where: 1) the party has shown a lack
of due diligencs by failing to proceed with reasonable promptitude;
2) there is no compelling reason for the delay; and 3) the delay
has caused prejudice to the adverse party. James Brothers Y.umber
Co. v. Union Banking and Trust Co. Of DuBois, 432 Pa. 129, 247 A.2d
587 (1968).
8. For approximately two years and ten months,
Plaintiffs have not filed any documents of record. The last docket
entry in this case was April 18, 1995, when a return of service was
filed by the Sheriff's office.
9. Since the commencement of this action approximatelY
two years and ten months ago, Plaintiff A have exhibited as a matter
of law, a lack of due diligence by failing to proceed.
10. There is no compelling reason for Plaintiffs' delay
in this case.
11. With respect to element three listed above, the
Pennsylvania Supreme Court has held that in cases involving a delay
for a period of two years or more, the delay will be presumed to be
prejudicial for purposes of any proceeding to dismiss for lack of
activity on the docket. Penn pipinq, Inc. v. Insurance Co. of
North America, 529 Pa. 350, 603 A.2d 1006 (1992); streidl v.
community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992).
Accordingly, there is a presumption of prejUdice against Defendants
in the instant case.
- 2 -
REYNOLDS & HAVAS
A professional corporation
12. ~herefore, in light of the above, Defendants are
entitled to a jUdgment of non pros.
WHEREFORE, Defendants, Jay R. ~ay and Jay Michael way,
."y tbis .onorahls court sntar on ordar gronting a .otion 0'
judgment non pros against Plaintiffs.
Date: '/-Z-I.P Jo.. '0
BY:
t/~~44: ~1fd:t
Attorney I.0:~46
Michele J. ~horp
Attorney 1.0. '1111'1
101 pine street
HarrisDurg, PA 1'1108-0932
(717) 236-3200
counsel for Defendants,
Jay R. WaY and Jay Michael way
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PYS510 cumberland County Prothonotary's Office Page
Civil case Inquiry
1995-00576 HINKE JERRY E ET AL (VSl WAY JAY R ET AL
. . . .
Reference No..: Filed..."...: 2/03/1995
Case Type,..,.: WRIT OF SUMMONS Time.........: / /9:02
Judgment. . . . . . : .00 Execution Date 0 00 0000
Judge Assigned: sat/Dis/Gntd.. 0/00/0000
Jur~ Trial. . . .
Hig er Court 1
Hia er Court 2
...*...****.*.*.*.*.*.*....*.**..*......*.....*.*.*.*..f...*...*.*..*******.*.*.
General Index Attorney Info
HINKE JERRY E PLAINTIFF SILVER MARK 5
710 SUNHAVEN CIRCLE
MECHANICSBURG PA 17055
HINKE PEGGY L
710 SUNHAVEN CIRCLE
MECHANICSBURG PA 17055
WAY JAY R
247 RIDGE HILL ROAD
MECHANICSBURG PA 17055
WAY JAY MICHAEL
247 RIDGE HILL ROAD
MECHANICSBURG PA 17055
1
. '
PLAINTIFF
SILVER MARK 5
DEFENDANT
DEFENDANT
****...***...**...***.*...***..***.*.*.*....*.*...*.*.*.**.**..*.*.*******.*****
. Date Entries *
**.....***....**......*...****.*.*.*...*....*.....*.*.*...****.*.*.***.*.*..****
02/03/95 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION
WRIT OF SUMMONS ISSUED
03/03/95 PRAECIPE TO REISSUE WRIT OF SUMMONS BY MARK S SILVER ES8
03/27/95 PRAECIPE TO REISSUE WRIT OF SUMMONS BY MARK S SILVER ES
04/1B/95 SHERIFF'S RETURN tSERVED DEFTS: JAY MICHAEL WAY 2/23/95-
JAY R WAY 3/31/95 SHERIFF'S COSTS 92.6B PD ATTY 4/10/95
****.*****...*.*..........* *...**.....*......!...*.*...*..**....*.*****.*.**.**
* Escrow Information *
. Fees & Debits Bea Bal pvmts/Ad1 End Bal *
*......***.*..**..*.....*.*.*...f......*........,.*.*.....*...**.*.***.*.***.*.*
35.00 35.00 .00
,50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
*.*....*****.*.*.**..**.*.***.*.*..*.***...*....*.*.*.*.*.**.*******************
* End of case Information *
****.*.*****..**.*****....***.******..**...***..***.*.*.*.*.**.*.***************
WRIT OF SUMMONS
TAX ON WRIT
SETTLEMENT
JCP FEE
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CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct
copy of the foregoing document on all counsel of record by placing
the same in the united States Mail at Harrisburg, Pennsylvania,
first-class postage prepaid, on the ~'~day of January, 1998,
addressed as follows:
Mark S. silver, Esquire
Law Offices of Joseph A. Klein
100 Chestnut street, suite 210
Post Office Box 1152
Harrisburg, Pennsylvania 17108-11152
(Counsel for plaintiffs)
REYNOLDS & HAVAS
A Professional Corporation
By:
~~~
Sharon De1l-Ga1xagher
Secretary
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ATTORNI5VS AND COUNSELORS AT LAw
101 PINB STRI!IIT
P.O. Box 932
HAARII!IBURQ, PeNNBvLvANI" 17108.0932
Michele J. Thorp, Esquire
Reynolds & Havas
Post Office Box 932
Harrisburg, PA 1710B-0932
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COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and
PEGGY L. HINKE,
Plaintiffs
No. 95-576 civil Term
v.
CIVIL ACTION - LAW
JAY R. WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, 1998, upon
consideration of the Motion of Defendants for judgment non pros, it
is hereby ORDERED and DECREED that Defendants' Motion is GRANTED.
BY THE COURT:
, J.
, " .. . - -- _.- ~-.
. _.. .~..... ._ ....H'___ .tv.,'<< " , __ - - - '".----tj -" .
COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and
PEGGY L. HINKE,
plaintiffs
No. 95-576 civil Term
v.
CIVIL ACTION - LAW
JAY R. WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, 1998, upon
consideration of the Motion of Defendants for judgment non pros, it
is hereby ORDERED and DECREED that Defendants' Motion is GRANTED.
BY THE COURT:
I J.
(
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A p"OI'...lotIAL CORr>ORATlON
ATTORNeY8. AND CouNalLOAS AT LAw
101 PIN!! STRI!BT
P,O, Box 932
-HARRI8BURa, PeNNSYLVANIA 17106-0932
Mark s. Silver, Esquire
Law Offices of Joseph A. Klein
100 Chestnut street, suite 210
Post Office Box 1152
Harrisburg, PA 17108-11152
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JERRY E. HINKE and PEGGY L.
HINKE, husband and wife,
710 Sunhaven Circle
Mechaniesburg, PA 17055
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-576 CIVIL TERM
v.
JAY R. WAY and JAY MICHAEL WAY,
247 Ridge Hill Road
Mechanicsburg, PA 17055
Defendants
JURY TRIAL DEMANDED
PRAECIPE TO REISSUE WRIT OF SUMMONS
TO THE PROTHONOTARY I
Please reissue the Writ of Summons in the above-captioned
matter, the original of which was issued February 3, 1995.
Service of the Writ upon Defendant Jay Michael Way was
effected by the Sheriff of Cumberland County. Service upon
Defendant Jay R. Way has not yet been effected for lack of a
serviceable address.
As soon as a serviceable address for Defendant Jay R. Way is
located, notification thereof will be made to the Sheriff's office
to enable service of the Writ.
Please request the Sheriff's Office to forward to me its
Affidavit of Proof of Service upon completion of the same.
LAW OFFICES OF JOSEPH A. KLEIN, P.C.
BYI
~tctlL
Date I March 3, 1995
Mark S. Silver, Esquire
I.D. No. 09825
100 Chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for Plaintiffs
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JERRY E. HINKE and PEGGY L. I
HINKE, husband and wife, I
Plaintiffs I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
I
I NO. 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY, I
Defendants I JURY TRIAL DEMANDED
PRAECIPE TO REISSUE WRIT OF SUMMONS
TO THE PROTHONOTARY I
Please reissue the Writ of Summons in the above-captioned
matter, the original of which was issued February 3, 1995i the same
reissued March 3, 1995.
Service of the Writ against Defendant Jay Michael Way was
effected by the Sheriff of Cumberland County, '
Please direct service of the Writ of Summons upon Defendant
Jay R;' Way by the Sheriff of Cumberland County, Pennsylvania, and
the deputized Sheriff of Bucks County at the Defendant's last known
precise'residence as follows I
Jay R. Way
3455 Street Road, No. 9
Bensa1em, Bucks County, PA 19020-1547
Please request the Sheriff's Offices to provide an Affidavit
of Proof of Service upon completion of the same.
LAW OFFICES OF JOSEPH A. KLEIN, P.C.
BYI
~~
Mark S. Sirver, Esquire
1.0. No. 09825
100 Chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for Plaintiffs
Datel March 27, 1995
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SHERIFF'S RETURN
CASE NO: 1995-00576 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HINKE JERRY E ET AL
VS.
WAY JAY R ET AL
TIMOTHY REITZ . Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly aworn according
to law, says, that he served the within WRIT OF SUMMONS
upon WAY JAY MICHAEL the
defendant, at 1515:00 HOURS, on the 23rd day of February
1995 at 247 RIDGE HILL ROAD
MECHANICSBURG, PA 17055 ,CUMBERLAND
County, Pennsylvania, by handing to MICHAEL WHITEHEAD
a true and attested copy of the WRIT OF SUMMONS
and at the same time directing ~ attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So answers :", ,-;.," '-,..:0
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6.00
4.48
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2.00
$J,2.48 MARK S. SILVER
04/10/1995
by
Sworn and subscribed to before me
this Jr~ day of Qh..:Y
19 q~ A. D. I
Q~-J'~ ~r~~~to~
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SHERIFF'S RETURN
CASE NOr 1995-00576 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HINKE JERRY E ET AL
VS.
WAY JAY R ET AL
R, Thomas Kline
to law, says, that he made
named defendant, to wit:
. Sheriff, who being duly sworn according
diligent search and inquiry for the within
WAY JAY R
but was unable to locate
deputized the sheriff of
to serve the within
Him
in his bailiwick. He therefore
BUCKS
WRIT OF SUMMONS
County, Pennsylvania.
On April
10th, 1995
"
. this office was in receipt of
BUCKS County, Pennsylvania,
the attached return from
Sheriff's Costs:
Docketing
Out of County
Surcharge
BUCKS COUNTY
So answers,~
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R. Thomas Kline, ~herJ.1.t
18,00
9,00
2.00
51. 20
$80,20 MARK SILVER
04/10/l995
Sworn and subscribed to before me
this 1'I1f:- day of ~...:J'
19 qo)' A. D.
~u..- ~, ~ ~"t).
rot onotary .
'in rn!!l Court or C::mmOr\ Plec:s of C:"I';::"-:::H'!:nd c:Ju,;;o,'y, ?snnsyl'lc:nio
Jerry E, Er Peggy L, Hinke, II/W
VS.
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95-576 Civil 'rB;fm
---"" .--
Jay R, Way (, Jay Michac.l way
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March 27,
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II. JA/dU UVNOIJlI,JII.
JOIm I lAVAS
MICIIAlLM.IIADOWSKI .
5TIPI11NJ.. BA1'QCO,JR.6
ROil L XIl0U.
DAIlRV to. XIl0l'iTlIAL
IAIJRAUI B. BAXIR
MIClISLU, nlORP
REYNOLDS & HA VAS
A ~CCJDOaA,1nt
A1TORMtVS AIID COUl'iSlLORIAT lAw
101 Pull SlRIIT
PosrOmcl Box 931
ILulRllBl1Ro, PUlNSVLVAMA 17108-0931
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January 23, 1998
curtis R, Long, Prothonotary
Cumberland county Courthouse
One Courthouse Square
carlisle, Pennsylvania 17013-3387
'\\,\\ ~ ('(\uS\ cp
-\{J IY"JU'fH0 \-
Ccur:\- - el ("ISe
n \-c.. .
Rei Rinke v. way
Docket No. 95-576
our Pile No, 3857-1
Dear Mr, Long:
Enclosed for filing please find the original and one
copy of Motion of Defendants, Jay R, Way and Jay Michael Way, for
Judgment of non pros, with proposed Order, Also enclosed is a
copy of the Order and a pre-addressed and stamped envelope
addressed to counsel for Plaintiffs and Defendants, Please clock
in the copy and return it to me in the stamped, self-addressed
envelope provided for that purpose,
Additionally, by copy of this letter, the original and
two copies of Defendants' Brief in Support of their Motion is
being filed with the Court Administrator's office,
In accordance with the certificates of service, copies
of each of these documents are being served on counsel for
Plaintiffs, Thank you for your assistance in this matter and,
should you have any questions please feel free to contact me,
v~ tr~ly yours"
tlf/tclxd ,~/11~t1f
MicJ:1e'J, Thorp
MJT:sdg
Enclosures
cc w/enc: Richard J, pierce, Court Administrator
(Motion and Brief)
Mark S, silver, Esquire (Motion and Brief)
.(',rtJllI<l.., ChiJ ToW.w-... b7lhf N,lloouIlloonI,lT"oJ Ad""'l'
A ,.."""'.11 .......... C.... _IUd AI...,.
~~ 27. 1998
COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E, HINKE and
PEGGY L, HINKE,
plaintiffs
: No, 95-576 civil Term
,
,
.
,
v,
CIVIL ACTION - LAW
JAY R, WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, 1998, upon
consideration of the Motion of Defendants for judgment non pros, it
is hereby ORDERED and DECREED that Defendants' Motion is GRANTED,
BY THE COURT:
, J,
COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E, HINKE and
PEGGY L, HINKE,
plaintiffs
No, 95-576 civil Term
v,
CIVIL ACTION - LAW
JAY R, WAY and
JAY MICHAEL WAY,
Defendants
: JURY TRIAL DEMANDED
MOTION OF DEFENDANTS,
JAY R. WAY and JAY MICHAEL WAY,
FOR JUDGMENT OF NON PROS
1, This case arises out of a motor vehicle accident
which occurred on or about February 10, 1993,
2, On or about February 3, 1995, Plaintiffs, Jerry E,
Hinke and peggy L, Hinke ("plaintiffs"), filed a praecipe for Writ
of Summons against Defendants, Jay R, Way and Jay Michael Way
("Defendantll") ,
3, Thereafter, plaintiffs f Hed praecipes to reissue
the Writ of summons on March 3, 1995, and March 27, 1995,
4, On April 1B, 1995, the Sheriff's return was filed in
this matter indicating service upon Defendants,
5, since April 1B, 1995, there has been no substantive
docket activity in this case, A certified copy of the docket
entries in this case is attached hereto, incorporated herein by
reference and marked as Exhibit "A",
6. Moreover, plaintiffs have failed to pursue this case
in any significant manner,
7, The Pennsylvania Supreme Court has held that a court
may enter judgment of non pros where: 1) the party has shown a lack
of dus diligsnce by failing to prcceed with reasonable prcmptitudei
2) there is no compelling reason for the de1aYi and 3) the delay
has caused prejudice to the adverse party, James Brothers Tdlmher
Co. v. Union Banking and Trust co. Of DUBois, 432 Pa, 129, 247 A,2d
587 (1968),
8, For approximately two years and ten months,
Plaintiffs have not filed any documents of record, The last docket
entry in this case was April 18, 1995, when a return of service was
filed by the Sheriff's office,
9, since the commencement of this action approximately
two years and ten months ago, Plaintiffs have exhibited as a matter
of law, a lack of due diligence by failing to proceed,
10, There is no compelling reason for Plaintiffs' delay
in this case,
11. With respect to element three listed above, the
Pennsylvania supreme Court has held that in cases involving a delay
for a periOd of two years or more, the delay will be presumed to be
prejUdicial for purposes of any proceeding to dismiss for lack of
activity on the docket. Penn pi'Qing. Inc, v. Insurance co. of
North America, 529 Pa, 350, 603 A.2d 1006 (1992) i streidl v,
community General Hospital, 529 Pa. 360, 603 A,2d 1011 (1992),
Accordingly, there is a presumption of prejudice against Defendants
in the instant case,
- 2 -
12, Therefore, in light of the above, Defendants are
entitled to a judgment of non pros,
WHEREFORE, Defendants, Jay R, Way and Jay Michael Way,
pray this Honorable Court enter an Order granting a motion of
judgment non pros against Plaintiffs,
REYNOLDS & HAVAS
A professional Corporation
Date: I /z.G:> /9 CO By:
Michele J, Thorp
Attorney I,D, 71117
101 pine Street
Harrisburg, PA 17108-0932
(717) 236-3200
Counsel for Defendants,
Jay R, Way and Jay Michael Way
- 3 -
\
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..........1_
PYS510
1995-00576
.
R.'.'.'" RO..' F".d......:., 210311995
Case TYpe...,,1 WRIT OF SUMMONS Time..i......: 9102
Judgment.i.'..: .00 Execut cn Date 0/00/0000
Judg' A" g..d. s..lol.,G..d.. 01001000'
Jur~ Trial. . . .
lug er court 1
Hia er court 2
.......................................................,........................
General Index Attorney Info
HINKE JERRY E PLAINTIFF SILVER MARK S
710 SUNHAVEN CIRCLE
MECHANICSBURG PA 17055
HINKE PEGGY L PLAINTIFF SILVER MARK S
710 sUNHAVEN CIRCLE
MECHANICSBURG PA 17055
WAY JAY R DEFENDANT
247 RIDGE HILL ROAD
MECHANICSBURG PA 17055
WAY JAY MICHAEL DEFENDANT
247 RIDGE RILL ROAD
MECHANICSBURG PA 17055
cumberland county prothonotary'S office
Civil case Inqu1ry
JERRY E ET AL ,VS) ~AY JAY R ET AL
Page
1
RINKE
................................................................................
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................................................................................
02/03/95 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION
WRIT OF SUMMONS ISSUED
03/03//95 PRAECIPE TO REISSUE WRIT OF SUMMONS BY MARK S SILVER ES8
03/27 95 PRAECIPE TO REISSUE WRIT OF SUMMONS BY MARK S SILVER ES
04/18195 SHERIFF'S RETURN ~SERVED DEFTS: JAY MICHAEL WAY 2/23/95-
JAY R WAY 3/31/95 SHERIFF'S COSTS S92.68 PO ATTY 4/10/95
........................... ..................*.................................
. Escrow Information ·
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................................,........~......~...............................
35,00 35.00 .00
.50 .50 .00
5.00 5,00 .00
5,00' 5.00 .00
------------------------ ------------
45.50 45.50 .00
................................................................................
. End of Case Information ·
................................................................................
WRIT OF SUMMONS
TAX ON WRIT
SETTLEMENT
JCP FEE
TRUE coPy fROM RECORD
In Testimony whef8Ol, 'hef8 untO lit IT1/ hind
and IIle seal 01 sa at Cartltle. Pl.r
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CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct
copy of the foregoing document on all counsel of reccrd by placing
the same in the united states Mail at Harrisburg, pennsylvania,
first-class postage prepaid, on the '~b~day of January, 1998,
addressed as fo1lcws:
Mark S. silver, Esquire
Law offices of Joseph A, Klein
100 chestnut street, suite 210
Post Office Box 1152
Harrisburg, Pennsylvania 17108-11152
(Counsel for Plaintiffs)
REYNOLDS & HAVAS
A Professional corporation
By:
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sharon Dell-Gallagher,
Secretary
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VERIFICATION
.
The undersigned, peggy L. Hinke, hereby verifies and states that I'
1. She is one of the named plaintiffs herein,
2. The facts set forth in the foregoing COMPLAINT are true and
correct to the best of her knowledge, information and belief; and
3, She is nware that false statements herein are made subject to
the penalties of 18 pa.C.S.A. 54904, relating to unsworn falsification
to authorities.
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peggy L. ()'Itl:\}Ke
Datel February 13 , 1998
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CERTIPICATE OP SERVICE
I, MARK S, SILVER, ESQUIRE, of the law firm of JOSEPH A. KLEIN,
P.C., attorneys for Plaintiffs, do hereby certify that on this date I
served the foregoing RESPONSE OP PLAINTIPPS JERRY E, HINltE AND PBGGY L,
HINltE TO DEPENDANTS' HOTION POR JUDGMENT OP NON PROS by placing a true
and correct copy of same in the United States Mail, postage prepaid,
deposited at Harrisburg, pennsylvania, addressed to counsel for the
Defendants as follows:
Michael M. Badowski, Esquire
Reynolds & Havas
101 pine Street
Post Office BOX 932
Harrisburg, PA 17108-0932
LAW OFFICES OF JOSEPH A.
~~lL
KLEIN, P,C,
By:
Mark S. Silver, Esquire
1.0. No. 09B25
100 Chestnut Street, suite 210
post Office Box 1152
Harrisburg, PA 17106-1152
(717) 233-0132
Attorneys for Plaintiffs
Date: February 17, 1998
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JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-576 CIVIL TERM
v.
JAY R. WAY and JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
199B, upon
consideration of the Motion of Defendants and the plaintiffs' Response
thereto, it is hereby ORDERED and DECREED that Defendants' Motion is
DENIED and Plaintiffs are directed to file their Complaint,
BY THE COURT:
J.
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JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 95-576 CIVIL TERM
JURY TRIAL DEMANDED
, I
I
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v.
JAY R, WAY and JAY MICHAEL WAY,
Defendants
RESPONSE OF PLAXNTIFFS JERRY E, HINKE AND PEGGY L, HtNKE
TO DEFENDANTS' MOTION FOR JUDGMENT OF NON PROS
1. It is admitted that this case arises out of an automobile
collision which occurred on February 10, 1993.
2. It is admitted that on February 3, 1995, Plaintiffs filed a
Praecipe for Writ of Summons in the Court of Common Pleas of Cumberland
County, pennsylvania, naming as Defendants therein the within
Defendants Jay R. Way and Jay Michael Way.
3. It is admitted that with respect to Defendant Jay R. Way,
Plaintiffs did file a praecipe to Reissue Writ of summons on March 3,
1995, as service of the Writ had not yet been effected on said
Defendant. Service of the Writ had been effected upon Defendant Jay
Michael Way on February 23, 1995.
4, It is admitted that on or about April 18, 1995, Sheriffs'
Returns were filed in this matter I one confirming service of the Writ
upon Defendant Jay Michael Way by the Sheriff of Cumberland County on
February 23, 1995, and the second confirming service of the Writ upon
Defendant Jay R. Way on March 31, 1995, by the deputized Sheriff of
Bucks County, pennsylvania.
5. It is admitted, in accordance with Exhibit "A" attached to
r
1
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.
Defendants' Motion, that the last docket activity in the within case
was entered April 1B, 1995.
6. It is denied Plaintiffs have failed to pursue this case in any
significant manner. To the contrary, Plaintiffs have secured, inter
alia, the following:
(1) medical records and medical reports with regard to
both Plaintiff-Husband and Plaintiff-Wife (whose course of
medical treatment as a result of the injuries sustained in
the within collision is extensive) which are not filed of
record;
(2) criminal history with regard to the several charges
prosecuted against Defendant Jay Michael Way as a result of
the cOllision involved in the instant case, including but not
limited to his pleas of guilty to the charges of:
(a) Driving Under the Influence;
(b) Unlawful Possession of Drug Paraphernalia;
(c) Accidents Involving Death or Personal Injury
(leaving scene of accident);
(d) Driving Under Suspension, and sentencing for
the same (See Criminal Docket - Cumberland county, No.
311 Criminal 1993).
As well, Plaintiff peggy L. Hinke has only recently reached a plateau
in her recovery, albeit not a full and complete recovery from the
multiple injuries sustained in the instant collision, and has ceased
further scheduled treatments for the same notwithstanding her
continuing to suffer from the results of those injuries, returning to
her treating physicians on an as-needed basis. As a result, it was
unknown which prior medical reports are complete with regard to her
condition, state of recuperation, and prognosis.
7. It is admitted that the James Brothers Lumber Co. v. Union
Bankinq and Trust Co. of DUBois, 432 Pa. 129, 247 A.2d 5B7 (196B), case
2
..
..
J
holds in part, what is set forth in Paragraph 7 of Defendants' Motion.
However, and to be complete, the Supreme Court further provided in
James Brothers, Bupra, specific examples of what may be claimed to
amount to "prejudice", which incidents are non-existent in the instant
case, as follows:
A Court may properly enter a judgment of non pros, when
a party to the proceeding has shown a want of due diligence
in failing to proceed with reasonably promptitude, and there
has been no compelling reason for the delay, and the delay
has caused some prejudice to the adverse party, such as the
death of or unexplained absence of material witnesses.
Id., 247 A.2d at 589 (emphasis added).
8. It is admitted that the last prior docket entry prior to the
filing of this Response of Plaintiffs to Defendants' Motion was April
18, 1995.
9, It is denied that since the commencement of this action
approximately two years and ten months ago, plaintiffs have exhibited
as a matter of law a lack of due diligence or that they have failed to
proceed. To the contrary, the Plaintiffs have undertaken the securing
of medical records, medical reports, and relevant criminal history
relating to Defendant Jay Michael Way as set forth above in Paragraph
6 of this Response, incorporated herein by reference, and further,
plaintiffs have had various discussions with claims representatives of
Defendants' underlying insurance carrier (not of record on docket) ,
in receivership.
10. It is denied there is no compelling reason for Plaintiffs'
delay in this case. To the contrary, Plaintiff Peggy L. Hinke suffered
multiple serious and severe injuries, including but not limited to:
3
..
(a) injuries and damages in and about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of the
head, neck, back, chest, shoulders, arms, legs, knees and
hands; ,
(b) inferiorly displaced comminuted transverse fracture
of mid-shaft of left clavicle;
hematoma to the left (oblique) muscles of the
(c)
abdomen;
(d) fractures of maxillary right central incisor and of
the maxillary right lateral incisor requiring for the repair
thereof permanent placement of dental crowns;
(e) cerebral concussion with mild retrograde amnesia;
(f) carpal tunnel syndrome to left wrist;
(g) laceration to left anterior part of tongue;
(h) multiple lacerations, abrasions, bruises, contu-
sions and cuts resulting from impact within the interior of
plaintiffs' vehicle and glass fragments;
(j) pain and discomfort in the left arm, left upper
trapezius and scapular areas;
(k) muscle strains in the neck, left shoulder, and
thoracic areas with development of complications with
sustained muscle tightness, tendonitis, myofascia1 pain
localized in left neck, left shoulder and arm, with 1eft-
sided thoracic outlet syndrome due to sustained muscle spasms
and left shoulder rotator cuff syndrome (tendonitis of left
shoulder tendon), with bilateral scapular syndrome which
includes muscle tightness and deconditioning at the thoracic/
scapula muscle which is inflamed;
(1) post-traumatic stress disorder/syndrome; and
(m) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, hospitalization required, surgical and
repair procedures accomplished, physical therapy attended,
and recuperative periods following thereafter,
as set forth in paragraph 23 of plaintiffs' Complaint proposed to be
filed, attached hereto as Exhibit "A", which Complaint sets forth the
meritorious cause of action on behalf of plaintiffs.
4
..
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11. It is denied the pennsylvania Supreme Court in either Penn
pioinq, Inc. v. Insurance Com~anY of North America, 529 Pa. 350, 603
A.2d 1006 (1992), or Streid1 v. Community General Hospital, 529 Pa.
360, 603 A.2d 1011 (1992), held that a delay for a period of two (2)
years or more will be presumed to be prejudicial for purposes of any
proceeding to dismiss for lack of activity on the docket.
Rather, and to the contrary, in penn pioinq, supra, in its
Explanatory Footnote 2, the Court states:
2, Examples of situations in which there will bea per se
determination that there is a compelling reason for the
delay, thus, defeating dismissal, are cases where the
delaying party establishes that the delay was caused by
bankruptcy, liquidation, or other operation of law, or in
cases awaiting significant developments in the law. There
may, of course, be other compelling reasons which will be
determined on a case-by-case basis.
"
Id" 603 A.2d at 1009.
Further, in Streid1, supra, the Supreme Court included in its
prime opinion (non-footnote):
Other compelling reasons may be determined on a case-by-case
basis.
Id., 603 A.2d at 1012.
In the instant case, given the criminal acts of Defendant
Michael Way in causing the collision and resultant injuries suffered
both plaintiff Jerry E. Hinke and plaintiff Peggy L, Hinke, and his
having plead guilty and having been sentenced in the same, there is no
question as to the liability of Defendant Jay Michael way in causing
the collision and, thus, there is no concern over the presence or
absence of any material witnesses to the collision or their ability or
inability to have a clear recollection of the same or, further, whether
5
.
any of those witnesses mayor may not any longer be available. Thus,
the expressed concern by the superior Court in James Brothers Lumber
Co., supra, cited by Defendants in their Motion, in its suggestion of
possible prejudice to the adverse party, and that Court's suggestion
that the same may result from "
the death of or unexplained absence
" .
of material witnesses" (603 A.2d at 1007), is inapplicable in the
instant case.
The significant factors to be considered in the instant case
will be those relating to description of the injuries sustained by both
plaintiffs, required treatment, care, and recuperative therapy
thereafter, degree of healing, and any and all residual disabilities
and limitations on the pursuit of ordinary daily activities thereafter.
That information and those facts will be testified to by the plaintiffs
themselves and, as well, by any and all treating physicians,
therapists, nurses, and other persons having knowledge of the same,
whose records and/or reports are already reduced to writing. AS a
result, those factors, all being within the purview of Plaintiffs' , c';'
presentation of their cases and witnesses to be produced on their
behalf, has nothing to do with, nor will it serve to the detriment or
prejudice to the adverse party, Defendants herein. The Defendants were'
not witnesses to the injuries, medical treatments required, or
recuperative courses experienced by plaintiffs; rather, the only
involvement on the part of Defendants was in causing the collision and,
thus, the resultant injuries to the plaintiffs, which collision clearly
resulted from criminal activity of Defendant Jay Michael Way which, in
all 1ike1ihocd, would be a factor in this case to be stipulated by
6
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Defendant. Therefore, no prejudice has or will result to the adverse
party, Defendants herein, when this case proceeds on the merits.
The Defendants' bald assertion and claim of a presumption of
prejudice against them is inapplicable and unsupportable by the facts
of this case which, as held by the Pennsylvania Supreme Court in Penn
pipinq, supra, and streidl, supra, are clear factors to be taken into
consideration by the Court in its discretionary determination whether
to enter a judgment of non pros. It is clear the Trial court has full
discretion to make such determination, see, Penn pipinq, supra, and
Streidl, supra, as well as James Brothers Lumber Co" supra, and such
discretion should be exercised in favor of plaintiffs in the instant
case.
It is further denied there is or has been any prejudice or
should be any presumption of prejudice against Defendants in the
instant case for the reasons set forth above.
12. It is denied, in light of the foregoing explanations, that
Defendants are entitled to a judgment of non pros. Rather, and to the
contrary, in accordance with penn pipinq, supra, Streidl, supra, and
James Brothers Lumber Co., supra, the Trial Court must exercise its
discretion and take into consideration whether or not there is, in
fact, prejudice to the adverse party, Defendants herein, which
Plaintiffs submit does not exist in this case given the clear liability
of Defendants as a result of the criminal activity of Defendant Jay
Michael Way in causing the instant collision and the absence of any
other facts upon which Defendants may claim prejudice to them.
13. Prior to Defendants' filing their Motion to Dismiss, no
7
.
appearance of counsel had been filed with the prothonotary or served
upon Plaintiffs' counsel (see, Docket entries attached as Exhibit "A"
to Defendants' Motion).
14. Attached hereto and incorporated herein by reference is a
verified copy of complaint to be filed on behalf of Plaintiffs Jerry E.
Hinke and peggy L. Hinke, and against Defendants Jay R. way and Jay
Michael way, upon the direction of the court to do so or immediately
upon this Honorable court's dismissal of Defendant's Motion. said
complaint sets forth the meritorious cause of action on behalf of
Plaintiffs.
WHEREFORE, plaintiffs Jerry E. Hinke and peggy L. Rinke
respectfully pray this Honorable Court to enter an order denying
Defendants' Motion for Judgment of Non pros and directing that
Plaintiffs file the attached complaint and proceed on the merits of the
case,
RespectfullY submitted,
LAW OFFICES OF JOSEPH A. KLEIN, P.C.
By, IlkJ'.
Mark S. ~ver, Esquire
1.0. NO, 09B25
100 Chestnut street, suite 210
Post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for plaintiffs
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Date: February 17, 199B
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JERRY El. HINKEl and PEGGY L. HINKEl,
husband and wife,
plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO, 95-576 CIVIL TERM
JAY R, WAY and JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
NOT ICE
YOU HAVE BEEN SUED IN COURT, If you wish to defend against the
claims set forth in the following pages, you must take action within
twenty (20) days after this Complaint is served, by entering a written
appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without
you and judgment may be entered against you by the Court without
further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or
property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 249-6200
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JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
IN TilE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
plaintiffs
v.
NO. 95-576 CIVIL TERM
JAY R, WAY <lnd JAY MICIIAEL WAY,
Defendants
JURY TRIAL DEMANDED
NOT I C I A
LE RAN DEMANDADO A USTED EN LA CORTE. si usted quiere deEenderse
de estas demandas expuestas en 1as paginas siguientes, usted tiene
viente (20) dias de p1azo a1 partir de 1a Eecha de 1a demanda Y 1a
notificacion. Usted debe presentar una apariencia escrita or en
persona 0 por abogado y archivar en 1a corte en forma escrita sus
defensas 0 sus objeciones alas demandas en contra de su persona. Sea
avisado que si usted no se defiende, 1a corte tomara medidas y puede
entrar una orden contra usted sin previo aviso 0 notificacion Y por
cua1quier queja 0 a1ivio que es pedido en 1a peticion de demanda,
usted puede perder dinero 0 sus propiedades 0 otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATEMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR
ASISTENCIA LEGAL.
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 249-6200
JERRY E. IIINKE <lnd PEGGY L. JlINKE,
husband and wife,
plaintiffs
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
.
.
v.
NO. 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
COMPr.AINT
AND NOW, come the Plaintiffs, Jerry E. Rinke and peggy L. Hinke,
husband nnd wife, by their attorneys, Joseph A. Klein, P.C., and Mark
S. silver, Esquire, and file this Complaint against Jay R. Way and Jay
Mi~hae1 Way, Defendants, upon a cause of action more fully set forth as
follows:
1. plaintiff Jerry E. Hinke is and was at all times relevant
hereto an adult American citizen of the Commonwealth of pennsylvania,
residing together with his wife, plaintiff peggy L. Hinke, at 710
Sunhaven circle, Mechanicsburg, Cumberland County, pennsylvania, 17055,
and is the husband of plaintiff peggy L. Hinke.
2. plaintiff Peggy L. Hinke' is and was at all times relevant
hereto an adult American citizen of the commonwealth of pennsylvania,
residing together with her husband, plaintiff Jerry E. Hinke, at 710
Sun haven Circle, Mechanicsburg, Cumberland county, Pennsylvania, 17055,
and is the wife of plaintiff Jerry E. Hinke.
3. Defendant Jay R. Way was at all times relevant hereto an adult
American citizen of the Commonwealth of Pennsylvania, initially
residing nt 2,17 Ridge Hill Rond, :Mechanicsburg, Cumber1<1nd County,
1
.
,
.
pennsylvania, 17055, subsequently residing at 3'155 Street Road, No.9,
Bensa1em, Bucks County, pennsylvania, 19020-1547.
4. Defendant Jay Michael Way was at all times relevant hereto an.
adult American citizen of the Commonwealth of Pennsylvania, residing at
247 'Ridge Hill Road, Mechanicsburg, cumberland county, pennsylvania,
,
!
17055.
5. The within civil action was commenced by praecipe for writ of
Summons, the same filed with the Office of the prothonotary of
Cumberland County, pennsylvania, on February 3, 1995, docketed to No.
95-576 Civil Term. Service of the writ of Summons issued by the Office
of the prothonotary of Cumberland County, pennsylvania, was effected
upon Defendant Jay Michael Way, by the Sheriff of cumberland County,
Pennsylvania, on February 23, 1995.
Service of the writ of Summons was not effected upon
Defendant Jay R. Way within the thirty (30) days following February 3,
1995/ thus, a praecipe to Reissue Writ of Su~nons was filed with the
prothonotary of cumberland County, Pennsylvania, on March 3, 1995, and
on March 31, 1995, service of the reissued writ of Summons was effected
upon Defendant Jay R. way by the Sherif f of Bucks County , Pennsylvania.
6. The events giving rise to the instant cause of action occurred
Wednesday, pebruary 10, 1993, at approximately 9:25 p.m, on Wilson
Lane, near its point of intersection with Lancaster Boulevard, situate
in upper Allen Township, Cumberland County, pennsylvania.
7. At all times relevant and material hereto and at the location
herein involved. Wilson Lane was a two lane paved roadway, extending at
2
.
the location herein involved generally in on east-west direction,
providing one lane fOJ;" travel in the eastbound direction and one lane
for travel in the westbound direction. The westbound lane of the.
aforesaid I~ilson Lane is intersected from the north by Lancaster
Boulevard, which Boulevard is controlled by a stop sign on Lancaster
Boulevard at its point of intersection with the westbound lane of
Wilson Lane. Wilson Lane is the through roadway having the right-of-
way at said intersection.
8. At the aforesaid time and place, plaintiff Jerry B. Hinke was
lawfully operating a 1990 Chrysler LeBaron automobile bearing
Pennsylvania Registration Plate WRU1G2, with his wife and the owner of
said automobile, Plaintiff Peggy L. Hinke riding together with him as
a right front seat passenger in a westerly direction on Wilson Lane and
in the westbound lane thereof.
9. At the aforesaid time and place, both plaintiff Jerry B. Hinke
and Plaintiff Peggy L. Hinke had previously engaged and were wearing
the factory equipped seat belts in the aforesaid automobile.
10. At the aforesaid time and place, Defendant Jay Michael Way
was operating a 1979 Dodge Tradesman 200 truck, VIN 30912394504,
bearing Pennsylvania Registration Plate YVG7928, owned by his father,
Defendant Jay R. Way, and with his knowledge, consent and permission,
in a southerly direction along Lancaster Boulevard and toward its stop
sign controlled intersection with Wilson Lane,
11. At the aforesaid time and place, as plaintiff Jerry B. Hinke
was proceeding west in the westbound lane of tr.avel on Wilson Lane, the
3
through rondwny hnving tho right-of-wDY, und Dt or neDr its
intersection from the north with Lancaster Boulevard, Defendunt Jay
Michael wny Culled to come to a stop at the stop sign controlling.
southbound trafCic on Lancaster Boulevard nt its intersection with
wilson Lane, thereby causing the vehicle he WDS then Dnd there
operating to proceed directly through said stop sign Dnd directly into
the intersection Dnd to collide suddenly, violently, and without
warning directly into the right (passenger) side of the vehicle
operated by Plaintiff Jerry E, Hinke, such that plaintiff Jerry E,
Hinke hDd no opportunity to slow, stop, or chDnge direction of said
vehicle,
12. 'l'he aforesaid collision between the vehicle operated by
plaint if f Jerry E. llinke and that operated by Defendant Jay Michael Way
was cDused solely by, and was the direct, proximate, sole and exclusive
result of the negligence, carelessness, and recklessness of the said
Defendant Jay Michael way, as aforesaid, and was not caused in manner
whatsoever by any act or failure to act on the part of Plaintiff Jerry
E. Hinke, or on the part of Plaintiff peggy L. Hinke,
13. The negligence, carelessness, Dnd recklessness of Defendant
Jay MichDel way in cDusing the aforesDid collision consisted of his:
(a) failure to operata and control the vehicle he was
operating with due care;
(b) failure to have his vehicle under udequate and
proper control so uS to avoid striking plaintiffs' vehicle;
(c) fuilure to stop and yield the right-of -wuy to
Pluintif fs' vehicle which was either u1reCldy in the
intersection or approaching said intersection on the through
roadwClY hnving the right-of-way so closely as to constitute
4
a hazard at the time the Defendant operated his vehicle
across or within the intersection or junction of rOlldways in
violation of the Pennsylvania Motor Vehicle Code, 75
Pa.C.S.A. 93323(a) and (b);
(d) failure to operate the brakes in such a manner so
that Defendant's vehicle could be stopped in time to avoid
colliding with plaintiffs' vehicle;
(e) operating and being in actual physical control of
the movement of the vehicle he was operating while under the
influence of alcohol to a degree which rendered Defendant Jay
Michael Way incapable of safe driving in violation of the
pennsylvania Motor vehicle Code, 75 Pa.C.S.A. ~3731(a) (1);
(() failure to avoid a collision with the vehicle
operated by Plaintiff Jerry E. Hinke when Defendant Jay
Michael Way saw, or in the exercise of due care, should have
seen Plaintiffs' vehicle was on the through roadway and
approaching the intersection from which Defendant's vehicle
was about to exit, ahead and in full, unobstructed view of
Defendant Jay Michael Way;
(g) failure to operate Defendant's vehicle at a speed
which was reasonable or prudent under the conditions, giving
due regard to the actual and potential hazards then existing,
in violation of the Pennsylvania Motor Vehicle Code, 75
Pa.C.S.A. ~3361;
(h) operating a vehicle at a rate of speed which
rendered Defendant incapable of controlling its movements in
violation of the Pennsylvania Motor Vehicle Code, 75
pa,C.S.A. g3361;
(i) operating Defendant's vehicle with careless
disregard for the safety of the property and person of the
Plaintiffs, in violation of the Pennsylvania Motor Vehicle
Code, 75 pa.C.S.A. g3714;
(j) failing to stop, change direction of, or otherwise
avoid impact with the vehicle p1ainti,ff Jerry E. Hinke was
operating within the assured clear distance ahead, in
violation of the Pennsylvania Motor Vehicle Code, 75
Pa.C.S.A. g3361;
(k) continuing to operate Defendant's vehicle in a
direction toward the vehicle plaintiff Jerry E. Hinke was
operating when Defendant Jay Michael Way saw, or in the
exercise of reasonable dilig,ence, should have seen that
further operation in that direct.ion would result in a
5
collision with Plaintiff's vehicle,
(1) failure to sound a horn or to give other warning of
the approach of Defendant's vehicle,
(01) failure to exercise that degree of care for the
rights and safety of plaintiffs as required of Defendant
under the law,
(n) failing to operate Defendant's vehicle in an
attentive manner and failure to maintain a sharp look-out on
the road ahead for surrounding traffic conditions,
(0) continuing to operate Defendant's vehicle out from
the stop sign which was to control southbound traffic on
Lancaster Boulevard without first having brought Defendant's
vehicle to a full and complete stop at said stop sign, and in
continuing to operate said vehicle directly out and into the
intersection comprised of Lancaster Boulevard and the
westbound lane of Wilson Lane, the through roadway having the
right-of-way, and directly toward and into plaintiffs'
westbound vehicle when Defendant saw, or in the exercise of
reasonable diligence, should have seen that further operation
in that direction would result in a collision with
Plaintiffs' vehicle; and
(p) such other acts of negligence as discovery may
reveal and plaintiffs plead by amendment.
FIRST CLAIM
JERRY E, HINKE, PLAINTIFF v,
~AY R. WAY and JAY MICHAEL WAY, DEFENDAN'l'S
14. Paragraphs 1 through and including 13 of this Complaint are
incorporated herein by reference thereto.
15. AS a direct, proximate, sole, and exclusive resu1 t of the
negligence of Defendant Jay Michael way in causing the aforesaid
collision, set forth as aforesaid in Paragraph 13 of this Complaint,
Plaint if f Jerry E. Hinke was thrown violently about the interior of the
vehicle he was operating and sustained the following multiple, serious,
severe, and painful injuries, some of which are of a permanent nature,
G
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and include but are not limited to:
(a) injuries and damages in and about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of the
head, neck, back, chest, shoulders, arms, legs, knees and
hands;
(b)
contusions
left shin;
multiple lacerations, abrasions, bruises and
to head, forehead, scalp, left temple area, and
(c)
multiple cuts from broken glass;
(d) strain and sprain about the entire body, including
but not limited to strain and sprain to the cervical spine,
lumbar spine and thoracic spine, with multiple levels of
cervical, thoracic, lunmar, and sacral spinal pain; and
(e) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, medical procedures accomplished and
recuperative periods following thereafter,
16. 1\s a direct and proximate result of the negligence of
Defendant Jay Michael way in causing the aforesaid collision and
plaintiff Jerry E. Hinke to sustain the injuries set forth as aforesaid
in Paragraph 15 of this Complaint, plaintiff Jerry E. Hinke has
incurred in the past and may in the future continue to incur costs and
expenses for medical care and treatment, some portion of which may
exceed the sums recoverable under the limitations as set, forth in the
Motor Vehicle Financial Responsibility Law, Act of February 12, 1984
(P.L. 26, No. 11), as amended, 75 Pa.C.B.A. ~1711, and claim is made
therefor.
17. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff Jerry E, !linke to sustain the injuries as set
forth in paragruph 15 of the Conlp1aint as aforesaid, said plaintiff has"
7
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undergone mentn1 nnd physicnl pain and suf fering, nnguish, humiliation,
and loss of life's pleasures, with limitat.ions on his pursuit of
ordinary daily act.ivit.ies, all to his great. loss and det.riment., and,
claim is made therefor.
18. 1\S a further direct and proximate result of t.he sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff Jerry E. Rinke t.o sustain the injuries as set
forth in Paragraph 15 of t.he Complaint as aforesaid, said plaintiff
does present.1y and may in t.he fut.ure undergo mental and physical pain
and suffering, anguish, humiliation, loss of life's pleasures, with
limitation on his pursuit of ordinary daily activities, all to his
great loss and detriment, and claim is made therefor.
19. 1\s a further direct and proximate result of t.he sole
negligence of Defendant Jay Michael Way in causing the collision as
aforesaid at. paragraph 13 and Plaintiff Jerry E. Hinke to sustain the
injuries as set. forth in Paragraph 15 of the Complaint as aforesaid,
and Plaintiff peggy L. Hinke to sustain the injuries as set forth
hereinafter in paragraph 23, incorporated herein by reference, the said
aut.omobile of the within p1aint.iffs was damaged in and around the body,
frame, fender, doors, windows, and other parts of the motor vehicle.
Said plaint.iffs were obliged to have said motor vehicle repaired, were
deprived of its use for some time, and said motor vehicle depreciated
in substant.inl amount in value, and claim is made therefor.
20. 1\t all times relevant and material hereto, the 1990 Chrysler
LeBaron aut.omobile described in gr~ater det.ail in Paragraph 8, supra,
8
incorporated herein by reference, owned (by title) by plaintiff peggy
L. Hinke and operated at all times relevant and material hereto by
P1aintif f Jerry E. lIinke, was insured by Allstate Insurance company.
pursuant to its policy of insurance, policy number 000775104, which
policy provided, inter alia, "full tort" insurance coverage to its
insureds, plaintiff Jerry E. Hinke and Plaintiff peggy L. Hinke.
21. As a direct and proximate result of those injuries sustained
by plaintiff peggy L. Hinke set forth in detail hereinafter at
paragraph 23, incorporated herein by reference, all of which were
caused solely, directly, and proximately by the negligence of Defendant
Jay R, Way and Defendant Jay Michael Way as previously set forth,
plaintiff Jerry E. Hinke has in the past and will continue in the
future to be deprived of the society,
services, assistance,
companionship, comfort and affection of his spouse, plaintiff Peggy L.
Hinke, all to his great damage and loss, and claim is hereby made by
plaintiff Jerry E. Hinke for such loss of consortium.
WHEREFORE, plaintiff Jerry E. Hinke makes claim for and demands
judgment against Defendant Jay R. Way and Defendant Jay Michael Way in
an amount in excess of Twenty-Five Thousand and NO/100 ($25,000.00)
Dollars, excluding and costs as further claimed, an amount in excess of
any jurisdictional amount requiring compulsory arbitration.
SECOND CLAIM
PEGGY L. HINKE, PLAINTIFF v,
JAY R. WAY and JAY MICHAEL WAY. DEFENDANTS
22. paragraphs 1 through and ~nc1uding 13, and Paragraphs 19 and
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20 of this Complaint are incorporated herein by reference thereto,
23. A!I n direct, proximate, sole nnd exclusive result of the
negligence of Defendant Jay Michael Way in causing the aforesaid
collision, set forth as aforesaid in Paragraph 13 of this complaint,
plaintiff Peggy L. Hinke was thrown violently about the interior of the
vehicle she was occupying as a right front sent passenger and sustained
the following multiple, serious, severe, and painful injuries, some of
which are of a permanent nature, and include but are not limited to:
(al injuries and damages in nnd about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of the
head, neck, back, chest, shoulders, arms, legs, knees and
hands;
(bl inferiorly displaced comminuted transverse fracture
of mid-shaft of left clavicle;
(c)
abdomen;
hematoma to the left (oblique) muscles of the
(d) frnctures of maxillary right central incisor and of
the maxillary right lateral incisor requiring for the repair
thereof permanent placement of dental crowns;
(e) cerebral concussion with mild retrograde amnesia;
(fl carpal tunnel syndrome to left wrist;
(g) laceration to left anterior part of tongue;
(h) multiple lacerations, abrasions, bruises, contu-
sions and cuts resulting from impact within the interior of
plaintiffs' vehicle and glass fragments;
(jl pain and discomfort in the left arm, left upper
trapezius and scapular areas;
(k) muscle strains in the neck, left shoulder, and
thoracic areas with development of complications with
sustained muscle tightness, tendonitis, myofascia1 pain
localized in left neck, left shoulder and arm, with 1eft-
sided thoracic outlet syndrome due to sustained muscle spasms
and left shoulder rotator cuff syndrome (tendonitiS of left
10
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shoulder tendon), with bilateral scapular syndrome which
includes muscle tightness and deconditioning at the thorncic/
scapula muscle which is inflamed;
(1) post-traumatic stress disorder/syndrome; and
(m) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, hospitalization required, surgical and
repair procedures accomplished, physical therapy attended,
and recuperative periodS fOllowing thereafter.
24, As a direct and proximate result of the negligence of
Defendant .Jay Michael Way in causing the aforesaid collision and
p1aintif f peggy L. Hinke to sustain in the inj uries set forth as
aforesaid in paragraph 23 of this complaint, plaintiff Peggy L. Hinke
has incurred in the past and may in the future continue to incur costs
and expenses for medical care and treatment, some portion of which may
exceed the sums recoverable under the limitations as set forth in the
Motor Vehicle Financial Responsibility LaW, Act of February 12, 1904
(P.L. 26, No. 11), as amended, 75 Pa.C.S.A. ~1711, and claim is ~~de
therefor,
25. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff Peggy L. Hinke to sustain the injuries as set
forth in paragraph 23 of the Complaint as aforesaid, said Plaintiff has
suffered impairment of her earning capacity:and loss of past and future
earnings, which sums may not be recoverable by Plaintiff peggy L. Binke
under the provisions of the Motor Vehicle Financial Responsibility Law,
Act of February 12, 1904 (P.L. 26, No. 11), as amended, and claim is
made therefor.
11
". ^'. 'u".er d,r,c, ,nd .rOX''''''' r"ule of ,.e eOle
oegl,geO" 0' De'e.dOO' Jay M'C.'" Way" ceu"ng ",0 "oreea'd
coll"'on .od pl.'nt'" "ggy L. U,.M to ,u,en" ,M ,.jud" en '"
'or'. ,. ,.r.gr... 23 0' ,.e com."'" ., afore,.'d. ,.'d pl.,.,'f' ..,
,uflered ., ,,,,.'rme" of .er .aot ond fu,ure e.m'''' ,.d on
,,,,.'rOO" of .', ..r.,.g "pac"Y ,.d ,.' 10" 0' 'u,.re e,r.,.g',
w.". 'u'" are '0' recover.." .y pla'."" peggy L. U,..e u,d,r ,.e
'prov"'o,' of ,., MO,or v,.'cle F,.a.c'al ne'."".""Y Law, 'c, 0'
Fe.ruary 12, ,9" tp.L. 26, NO. "\, a' amended, and cla,m " mede
therefor.
2' . ^' a ,ur,ber d're" a.d .rox''''''' re,ule 0' ,.e eOle
n091,gence .f Defendan' JaY M'C.a.' way" cau,'ng ,M afore,,'d
coll"'on and pla'n,'ff "ggy L. N,..e to ,u,en,n ,.e Mud" a' ,ot
for,. 'n par.gra.. " of ,M c"".la'n, " afore,a'd, sa'd pla'n,'ff bas
und''''on. me.tal and ..ys,cal .a,n and ,u"edng. angu".' .umil,ation,
and '''' of life" .,e..ur... wit. li",ta"o", on ber pur.uit of
ord,nary da"Y ac,'v"'s', ,11 '0 .er grea' 10" and de,r,men,. and
claim is made therefor.
" ' ., a 'ur,ber d'r'c' and prow,me'. r.sule of ,be '01'
n.gligenc, 0' D.,.ndan' JaY M'C.'" way" caon'ng ,.. a'ore,,'d
coll"'on and Pl".,'ff "ggy L, \I"" ,0 \lUSt.,n ,be ,njud" .. ,e'
for,. 'n F,ragr,p. 23 of ,.. compla'.' a' ,fOr.,a'd, ",d pla'n,"f
dO" .r...n"Y ond will ,. ,.. futoro undergo mental and .bY"cel p"n
and ,uff.r'ng. ,ngu".' .umilia"o,. 10" of lif" s .,ea,ur'" w".
lim'tation .n ..r .or.uit 0' ordin"'" dnilY .ctivit'''' all to ..r
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great loss and detriment, and claim is made therefor.
29. ]\S a direct and proximate result of those injuries sustained
by Plaintiff Jerry E. Hinke set forth in detail hereinbefore at.
Paragraph 15, incorporated herein by reference, all of which were
caused solely, directly, and proximately by the negligence of Defendant
Jay R. Way and Defendant Jay Michael Way as previously set forth,
Plaintiff Peggy L. Hinke has in the past and will continue in the
future to be deprived of the society, services, assistance,
companionship, comfort and affection of her spouse, Plaintiff Jerry E.
Hinke, all to her great damage and loss, and claim is hereby made by
Plaintiff Peggy L. Hinke for such loss of consortium.
WHEREFORE, plaintiff peggy L. Hinke makes claim for and demands
judgment against Defendant Jay R. Way and Defendant Jay Michael way in
an amount in excess of Twenty-Five Thousand and NO/l00 ($25,000.00)
Dollars, excluding and costs as further claimed, an amount in excess of
any jurisdictional amount requiring compulsory arbitration.
Respectfully submitted,
Date: February\" , 1998
::~ OI~):~OSEP"
Mark S, Silver, Esquire
I.D, No, 09825
100 chestnut Street, Suite 210
Post Office Box 1152
Harrisburg, pJ\ 17108-1152
(717) 233-0132
Attorneys for Jerry E, Hinke and peggy
L. Hinke, husband and wife, Plaintiffs
J\, KLEIN, P,C,
13
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VERIFICATION
The undersigned, Jerry E. Hinke, hereby verifies and states that::
1, He is one of the named plaintiffs herein;
2. The facts set forth in the foregoing COMPLAINT are true and
correct to the best of his knowledge, information and belief; and
3. He is aware that false statements herein are made subject to
the penalties of 10 Pa.C,S.A. ~4904, relating to unsworn falsification
to authorities.
Date: February 13 , 1990
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U.W OFFICES
Of'
JOSEPH A. KLEIN
A PRoP'E55101lAl. CoJ1l'OMnoN
POST OFFICE' Box 1152
HA/lR!SIIURO, PA 17108
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Law Offices of Joseph,A X1ein PC
post office BOX 1152
Harrisburg PA 17108-1152
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JOSEPH A, KLEIN
A PRoFESSIONAL CORl'OMTION
Posr OFfICE Box 1152
HAllRJSUUllO, PA 17108
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Michael M Badows~i Esquire
Reynolds & Havas
101 pine street
Post Office Box 0932
narrisburg PA 17108-0932
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PRAECIPE FOR LISTING CASE FOR ARGmlENT
(~Iust be typewrillcn and ~ubmltted In duplicate)
TO THE PROTHONOTARYiOF CUMBERLAND COUNTY:
Ple:lSe Ust the wllhln matter for the next:
o Pre.Trl:1l Argument Court
lY Argument Court
....': It
----------------------------------------------------------------------
CAPTION OFCASE
(entire caption musl be staled In full)
JERRY E. HINKE'and
PEGGY L: HINKE,
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(pl3lnllfl)
vs.
JAY R. WAY and,
JAY MICHAEL WAY,
(~fendanl)
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'No. 95-576 Civil Action - Law 19...22..
1, State matter to be argued (I. c., pl:1lntlCrs moUon Cor new Irl:1l,
deCend:mt's demurrer to complaint, etc.): Defendan ts' Motion for
Judgment of Non Pros
2. IdenUfy counsel who wUlalgue C:lSe:
(a) Cor pl:1lnUfC: Mark S, 811 ver, Esquire
(b) for deCend:mt: Michael M ,Badowski, :Esquire
Michele J. Thorp, ,Esquire
3. I will noUf)' all parties In writing within tIVO da)'s lhatlhls case has b~cn
IISled fOI algumenl._
t!l41~
Michele J. Thorp, Atty #71117 (All 0 cy for dant)
Reynolds & Havas -- (717) 236-3200
Post Office Box 932, Harrisburg, PA 17109-0932
Dated: 1'<'1 f1
. ... ~
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CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct
copy of the foregoing document on all counsel of record by placing
the same in the United states Mail at Harrisburg, pennsylvania,
first-class postage prepaid, on the ..IJ/,4a.ay of February, 1998,
addressed as follows:
Mark S, silver, Esquire
Law Offices of Joseph A, Rlein
100 Chestnut street, suite 210
Post Office Box 1152
Harrisburg, Pennsylvania 17108-11152
(Counsel for Plaintiffs)
REYNOLDS & HAVAS
A Professional corporaticn
By:
ti.J.d'!~ ~~: ,~~/~ ~
Sharon Dell-Gal agher, :2
Secretary
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JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
v.
NO. 95-576 CIVIL TERM
JAY R. WAY and JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT, If you wish to defend against the
claims set forth in the fOllowing pages, you must take action within
twenty (20) days after this Complaint is served, by entering a written
appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without
you and judgment may be entered against you by the Court without
further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or
property or other rights important to you,
YOU SHOULD TAItE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
Court Administrator
cumberland County Courthouse
CarliSle, PA 17013
(717) 249-6200
'-~i~
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JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-576 CIVIL TERM
JURY TRIAL DEMANDED
v.
JAY R. WAY and JAY MICHAEL WAY,
Defendants
NOT I C I A
LE JlI\N DBMANDADO A USTBD EN LA CORTB. Si usted qui ere defenderse
de estas demandas expuestas en las paginas siguientes, usted tiene
viente (20) dias de p1azo al partir de la fecha de la demanda y 1a
notificacion. Usted debe presentar una apariencia escrita or en
persona 0 por abogado y archivar en 1a corte en forma escrita sus
defensas 0 sus objeciones alas demandas en contra de su persona, Sea
avisado que si usted no se defiende, 1a corte tomara medidas y puede
entrar una orden contra usted sin previo aviso 0 notificacion y por
cua1quier queja 0 alivio que es pedido en 1a peticion de demanda.
Usted puede perder dinero 0 sus propiedades 0 otros derechos
importantes para usted.
LLBVB BSTA DEMANDA A UN ABODAGO INHBDIATBMBNTB, SI NO TIBNB
ABOGAnO 0 SI NO TIBNE EL DINERO SUPICIENTE DB PAGAR TAL SBRVICIO, VAYA
EN PERSONA 0 LLAMB POR TBLEFONO A LA OPICINA CUYA DIRBCCION SB
ENCUBNTRA BSCRITA ABAJO PARA AVERIGUAR DONDB BE PUEDE CONSBQUIR
ASISTENCIA LEGAL,
Court Administrator
cumberland County Courthouse
Carlisle, PA 17013
(717) 249-6200
.
.
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JERRY E. HINKE and PEGGY L. HINKE,
husband and wife,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-576 CIVIL TERM
JURY TRIAL DEMANDED
plaintiffs
v.
JAY R. WAY and JAY MICHAEL WAY,
Defendants
COMPLAINT
AND NOW, come the Plaintiffs, Jerry E. Hinke and Peggy L. Hinke,
husband and wife, by their attorneys, Joseph A. Klein, P.C" and Mark
S. Silver, Esquire, and file this Complaint against Jay R. Way and Jay
Michael way, Defendants, upon a cause of action more fully set forth as
follows:
1. Plaintiff Jerry E. Hinke is and was at all times relevant
hereto an adult American citizen of the Commonwealth of Pennsylvania,
residing together with his wife, Plaintiff Peggy L. Hinke, at 710
Sun haven Circle, Mechanicsburg, Cumberland County, pennsylvania, 17055,
and is the husband of Plaintiff peggy L. Hinke.
2. Plaintiff Peggy L. Hinke is and was at all times relevant
hereto an adult American citizen of the Commonwealth of Pennsylvania,
residing together with her husband, plaintiff Jerry E. Hinke, at 710
Sunhaven Circle, Mechanicsburg, Cumberland county, Pennsylvania, 17055,
and is the wife of Plaintiff Jerry E. Hinke,
3. Defendant Jay R, Way was at all times relevant hereto an adult
American citizen of the commonwealth of Pennsylvania, initially
residing at 247 Ridge Hill Road, Mechanicsburg, Cumberland County,
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pennsylvania, 17055, subsequently residing at 3455 Street Road, No.9,
Bensa1ern, Bucks County, pennsylvania, 19020-1547.
4. Defendant Jay Michael way was at all times relevant hereto an
adult American citizen of the commonwealth of pennsylvania, residing at
247 Ridge Hill Road, Mechanicsburg, cumberland County, pennsylvania,
17055.
5. The within civil action was commenced by praecipe for writ of
summons, the same filed with the Office of the prothonotary of
cumberland county, pennsylvania, on February 3, 1995, docketed to No.
95-576 Civil Term. service of the writ of summons issued by the Office
of the prothonotary of cumberland county, pennsylvania, was effected
upon Defendant Jay Michael way, by the Sheriff of cumberland county,
pennsylvania, on February 23, 1995.
Service of the writ of summons was not effected upon
Defendant Jay R. way within the thirty (30) days following February 3,
19951 thus, a praecipe to Reissue writ of summons was filed with the
prothonotary of cumberland county, pennsylvania, on March 3, 1995, and
on March 31, 1995, service of the reissued writ of summons was effected
upon Defendant Jay R, way by the Sheriff of BuckS county, pennsylvania.
6, The events giving rise to the instant cause of action occurred
wednesday, February 10, 1993, at approximately 9;25 p,m, on wilson
Lane, near its point of intersection with Lancaster Boulevard, situate
in upper Allen Township, cumberland County, pennsylvania.
7. At all times relevant and material hereto and at the location
herein involved, Wilson Lane was a two lane paved roadway, extending at
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the location herein involved generally in an east-west direction,
providing one lane fo~ travel in the eastbound direction and one lane
for travel in the westbound direction.
The westbound lane of the
aforesaid wilson Lane is intersected from the north by Lancaster
Boulevard, which Boulevard is controlled by a stop sign on Lancaster
Boulevard at its point of intersection with the westbound lane of
Wilson Lane. Wilson Lane is the through roadway having the right-of-
way at said intersection.
B. At the aforesaid time and place, plaintiff Jerry E. Hinke was
lawfully operating a 1990 Chrysler LeBaron automobile bearing
pennsylvania Registration plate WRU162, with his wife and the owner of
said automobile, Plaintiff Peggy L. Hinke riding together with him as
a right front seat passenger in a westerly direction on wilson Lane and
in the westbound lane thereof.
9. At the aforesaid time and place, both plaintiff Jerry E. Hinke
and plaintiff Peggy L. Hinke had previously engaged and were wearing
the factory equipped seat belts in the aforesaid automobile.
10. At the aforesaid time and place, Defendant Jay Michael Way
was operating a 1979 Dodge Tradesman 200 truck, VIN 30912394504,
bearing Pennsylvania Registration plate YV6792B, owned by his father,
Defendant Jay R, Way, and with his knowledge, consent and permission,
in a southerly direction along Lancaster Boulevard and toward its stop
sign controlled intersection with wilson Lane.
11. At the aforesaid time and place, as plaintiff Jerry E. Hinke
was proceeding west in the westbound lane of travel on Wilson Lane, the
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through roadway having thn right-of-way, and at or near it'
inter,ection froo the north vith L.nc.,ter ,oulevard, Defendant J'y
Michael WeY falled to come to e ,tOP .t the ",op aign controlling
enut_und frOffic on Lanc""r Boulevard at ita intereection with
wll,on ...ne, chere.y ceu,ing che vehlcle he wa' then ond there
op,rating to proceed dlrectly through ,.id ,top ,ign .nd directly into
the intero..tlon ond to collide .uddenly, vinlently, and without
v"ning dlrectly lntO the right (pa"enge" ,ide of the vehlcle
operated by Plalntiff Jerry B. winke, ,uch chat Plaintiff Jerry B.
.inke had no opportunity to ,low, ,top, or change directlon of ,aid
vehicle.
1.2. The aforesaid collision between the vehicle operated by
Plalntlff Jerry E. .inke and that operated .y Defendant Jay Michael way
va' cau,ed ,01elY .y, and va' the direct, proximate, ,ole ond exclu,ive
re,ult of the negllgence, carele"ne," and reckle"ne,' of the ,aid
oefend.nt Jay Michaei Way, a' afore,aid, and wa' not cau,ed in roanner
vhat,oever by any act or failure to act on the part of Plaintiff Jerry
E. Rinke, or on the part of plaintiff peggy L. Hinke.
13. The negligence, carelessness, and recklessness of Defendant
Jay Michael Way in cau,ing the afore,aid cOlli,ion con,i,ted of hi"
(al failure to operate and control the vehicle he waS
operating with due carel
(bl failure to have his vehicle under adequate and
proper control so as to avoid striking Plaintiffs' vehicle I
(cl failure to stop and yield the right-Of-way to
PlaintiffS' vehicle which was either already in the
intersection or approaching said intersection on the through
roadway having the right-of-way so closely as to constitute
<\
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. ....'d .t tbe ti"" tbe pefend.nt n,etated bia vebicl'
.c,oaa 0' w'th'n the ,nte,aect'on 0' junct,onioi ro~d~aYS ;~
v,o,.t,on of tbe .ennay,v.ni' ""to' veb t e 0 e,
pa,c,s.A. ~3323ta) and tb) I
Id' f.,'u,e to o,e,ate tbe b,..ea 'n aUch · manne' t~
ch.t pafendant'a vebic,e cou'd be atO"ed 'n t,me to .vc
colliding with PlaintiffS' vehicle I
Ie' o,e,.t'n. .nd being in .ctua' ,bya'C~, con;i~t~~
the "",e""nt of the vehiC,e he w.a o,a,.t,n. wb e un e
influence of alCohol to a degree dWht~ ,e~~e;,1~~:S.:':~i ~~~
",c..e' ..y inc.,.b'e of a.fe 'v n. I , I"
.ennay,v.n" ""co, vehic,e code, " .a.c.s." ."" · '
If! ,.nu,e CO .void . co,,,aion with the ""hin,e
opetated bY .,.intiff Je"y S. .in.e wben pefe:'~~ h~~~
"'ch.e' ..y a'w, 0' 'n tbe ese,ciae of due c.,e, a oU d
aean .,.inti"a' vehic,e w.a on the th,ou.b ,0~d"Yhi'1e
,pp,o.cbin. the inte"ection f'om wbich pefendan~ ~ ~~..cof
w.a .bOut to esit, .be.d .nd in fU", unobat"c e
pefendant Jay Michael waYI
I I fai,u,e to ope,.ta ne,endsnt'a vehic,e .t · a,eed
Wb'Cb~.a ,eaaon.b,e 0' ,,,dent unde' the cnnditinna'i.i\,n.
due ,ag"d to the .ctu.' .nd ,otentia' ..,a'ds ~h~n e~o~; n~5
in vio,.tiOn of the .ennay,v.ni' ""to' veh c e '
pa,c,s.A, ~33611
IhI o,etatin.' vehicle .t . tate of a,eed whicb
,ende,ed nefend.nt inc.,.b,e of coot,o,'in. iitSlmov~m~ntS ;~
vio,.tion of tbe .ennay,v.ni' ""to' veb ceo e,
pa,c.s.A. ~33611
IiI o,e,.tin. nefendant'a vebic'e witb c.,e,eaa
i ,d fO' tbe a.'etY of tbe "ope,ty .nd ,e,aoP of the
~,~~itffa, in vio,etiOP of the .ennay,v.ni' MOtO' vebic,e
Code, 7S pa,c.S.A. ~37141
Ij' f.i'in. to atOP' cb.p.e di,ection of, 0' otbe<<iae
evoid imO.ct with tbe veb'C,e .,.intiff Je'ry S. .in'~ w.,
ope,.tiP, within tba eaan,ed c,e" diatapce a~~~e', in
v,o,atiOP of the .eppay,v.pi' ""to' vebic,e '5
pa.c.s.A, ~33611
l<l coptinuin. to ope"te pefepd.nt' a vehic'e in ·
di,ection tOw.,d tbe vebic,e .,.iPtiff Je"y S. .in~e w~
fu~~~~n,; !.1~~~~~5::d!l.~~~:::;~~0~~Lr~;e:~1~n i~~
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collision with plaintiff'S vehicle I
(1) failure to sound a horn or to give other warning of
the approach of Defendant'S vehicle I
(m) failure to exercise that degree of care for the
rights and safety of PlaintiffS as required of Defendant
under the lawl
(n) failing to operate Defendant' s vehicle in an
attentive manner and failure to maintain a sharp look-out on
the road ahead for surrounding traffic conditions I
(0) continuing to operate Defendant'S vehicle out from
the stop sign which was to control southbound traffic on
Lancaster BOulevard without first having brought Defendant'S
vehicle to a full and complete stop at said stOp sign, and in
continuing to operate said vehicle directly out and into the
intersection comprised of Lancaster BOulevard and the
westbound lane of Wilson Lane, the through roadway having the
right-Of-Way, and directly toward and into Plaintiffs'
westbound vehicle when Defendant saw, or in the exercise of
reasonable diligenCe, should have seen that further operation
in that direction would result in a collision with
Plaintiffs' vehicle; and
(p) such other acts of negligenCe as discovery may
reveal and Plaintiffs plead by amendment.
PIRST CLAIM
JERRY E, BIN1tE, PLAIN'rIPP v,
JAY R, WAY and JAY MIC~L WAY. PEPsmlAmS
14. paragraphs 1 through and including 13 of this complaint are
incorporated herein by reference theretO.
15. AS a direct, proximate, sole, and exclusive result of the
n,glig~c' of D'f,ndant Jay Michael way in cau,ing the afor"aid
cOlli,ion, "t forth a' afor"aid in paragraph " of thi' cooplaint,
Plaintiff J,rry E. Hink' wa' thrown wiol,ntlY about th' interior of the
v,hicle he va. operating and ,uetained th' following ""Hiple, "dou',
.ev.r' , and painful injurie', .ome of which ar' of a perman'nt nature,
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and include but are not limited to:
(a) injuries and damages in and about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of the
head, neck, back, chest, shoulders, arms, legs, knees and
hands;
(b)
contusions
left shin;
multiple lacerations, abrasions, bruises and
to head, forehead, scalp, left temple area, and
(c)
multiple cuts from broken glass;
(d) strain and sprain about the entire body, including
but not limited to strain and sprain to the cervical spine,
lumbar spine and thoracic spine, with multiple levels of
cervical, thoracic, lumbar, and sacral spinal pain; and
(e) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, medical procedures accomplished and
recuperative periods following thereafter.
16. As a direct and proximate result of the negligence of
Defendant Jay Michael way in causing the aforesaid collision and
Plaintiff Jerry E, Hinke to sustain the injuries set forth as aforesaid
in paragraph 15 of this Complaint, plaintiff Jerry E. Hinke has
incurred in the past and may in the future continue to incur costs and
expenses for medical care and treatment, some portion of which may
exceed the sums recoverable under the limitations as set forth in the
Motor Vehicle Financial Responsibility Law, Act of February 12, 1984
(P.L. 26, No, 11), as amended, 75 Pa.C.S.A, ~1711, and claim is made
therefor.
17. AS a further direct and proximate result of the sole
negligence of Defendant Jay Michael way in causing the aforesaid
collision and plaintiff Jerry E. Hinke to sustain the injuries as set
forth in Paragraph 15 of the complaint as aforesaid, said Plaintiff has
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undergone mental and physical pain and sUffering, anguish, humiliation,
and loss of life's pleasures, with limitations on his pursuit of
ordinary daily activities, all to his great loss and detriment, and
claim is made therefor.
18. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and plaintiff Jerry E. Hinke to sustain the injuries as set
forth in paragraph 15 of the Complaint as aforesaid, said Plaintiff
does presently and may in the future undergo mental and physical pain
and suffering, anguish, humiliation, loss of life's pleasures, with
limitation on his pursuit of ordinary daily activities, all to his
great loss and detriment, and claim is made therefor.
19. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the collision as
aforesaid at Paragraph 13 and Plaintiff Jerry E. Hinke to sustain the
injuries as set forth in paragraph 15 of the Complaint as aforesaid,
and Plaintiff peggy L. Hinke to sustain the injuries as set forth
hereinafter in paragraph 23, incorporated herein by reference, the said
automobile of the within plaintiffs was damaged in and around the body,
frame, fender, doors, windows, and other parts of the motor vehicle.
Said plaintiffs were obliged to have said motor vehicle repaired, were
deprived of its use for some time, and said motor vehicle depreciated
in substantial amount in value, and claim is made therefor.
20. At all times relevant and material hereto, the 1990 Chrysler
LeBaron automobile described in greater detail in Paragraph 8, Bupra,
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incorporated herein by reference, owned (by title) by Plaintiff peggy
L. Hinke and operated at all times relevant and material hereto by
plaintiff Jerry E. Hinke, was insured by Allstate Insurance company
pursuant to its policy of insurance, policy number 008775104, which
policy provided, inter alia, "full tort" insurance coverage to its
insureds, plaintiff Jerry E. Hinke and Plaintiff Peggy L. Hinke.
21, AS a direct and proximate result of those injuries sustained
by plaintiff Peggy L. Hinke set forth in detail hereinafter at
Paragraph 23, incorporated herein by reference, all of which were
caused solely, directly, and proximately by the negligence of Defendant
Jay R. Way and Defendant Jay Michael Way as previously set forth,
Plaintiff Jerry E, Rinke has in the past and will continue in the
future to be deprived of the society, services, assistance,
companionship, comfort and affection of his spouse, Plaintiff peggy L.
Hinke, all to his great damage and loss, and claim is hereby made by
Plaintiff Jerry E. Hinke for such loss of consortium.
WHEREFORE, plaintiff Jerry E. Hinke makes claim for and demands
judgment against Defendant Jay R. Way and Defendant Jay Michael way in
an amount in excess of Twenty-Five Thousand and NO/l00 ($25,000.00)
Dollars, excluding and costs as further claimed, an amount in excess of
any juriSdictional amount requiring compulsory arbitration.
SECOND CLAIM
PEGGY L, HINKE, PLAINTIFF v,
JAY R. WAY and JAY MICHAEL WAY. DEFENDANTS
22. paragraphs 1 through and including 13, and paragraphs 19 and
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20 of this Complaint are incorporated herein by reference thereto.
23. As a direct, proximate, sole and exclusive result of the
negligence of Defendant Jay Michael Way in causing the aforesaid
collision, set forth as aforesaid in paragraph 13 of this Complaint,
Plaintiff peggy L. Hinke was thrown violently about the interior of the
vehicle she was occupying as a right front seat passenger and sustained
the following multiple, serious, severe, and painful injuries, some of
which are of a permanent nature, and include but are not limited to:
\
(a) injuries and damages in and about the muscles,
ligaments, tissues, vessels, nerves, disks, and bones of the
head, neck, back, chest, shoulders, arms, legs, knees and
hands;
(b) inferiorly displaced comminuted transverse fracture
of mid-shaft of left clavicle;
(c)
abdomen;
hematoma to the left (oblique) muscles of the
(d) fractures of maxillary right central incisor and of
the maxillary right lateral incisor requiring for the repair
thereof permanent placement of dental crowns;
(e) cerebral concussion with mild retrograde amnesia;
(f) carpal tunnel syndrome to left wrist;
(g) laceration to left anterior part of tongue;
(h) multiple lacerations, abrasions, bruises, contu-
sions and cuts resulting from impact within the interior of
plaintiffs' vehicle and glass fragments;
(j) pain and discomfort in the left arm, left upper
trapezius and scapular areas;
(k) muscle strains in the neck, left shoulder, and
thoracic areas with development of complications with
sustained muscle tightness, tendonitis, myofascia1 pain
localized in left neck, left shoulder and arm, with 1eft-
sided thoracic outlet syndrome due to sustained muscle spasms
and left shoulder rotator cuff syndrome (tendonitis of left
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shoulder tendon), with bilateral scapular syndrome which
includes muscle tightness and deconditioning at the thoracic/
scapula muscle which is inflamed;
(1) post-traumatic stress disorder/syndrome, and
(m) such other general pain and discomfort resulting
from the injuries sustained, treatments, diagnostic studies
and tests performed, hospitalization required, surgical and
repair procedures accomplished, physical therapy attended,
and recuperative periods following thereafter.
24, As a direct and proximate result of the negligence of
Defendant Jay Michael Way in causing the aforesaid collision and
Plaintiff Peggy L. Hinke to sustain in the injuries set forth as
aforesaid in Paragraph 23 of this Complaint, plaintiff peggy L. Hinke
has incurred in the past and may in the future continue to incur costs
and expenses for medical care and treatment, some portion of which may
exceed the sums recoverable under the limitations as set forth in the
Motor Vehicle Financial Responsibility Law, Act of February 12, 1984
(P.L. 26, No. 11), as amended, 75 Pa,C.S.A. ~1711, and claim is made
therefor.
25. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff Peggy L. Hinke to sustain the injuries as set
forth in Paragraph 23 of the Complaint as aforesaid, said Plaintiff has
suffered impairment of her earning capacity and loss of past and future
earnings, which sums may not be recoverable by plaintiff peggy L. Hinke
under the provisions of the Motor Vehicle Financial Responsibility Law,
Act of February 12, 1984 (P.L. 26, No. 11), as amended, and claim is
made therefor.
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26. AS a further direct and proximate result of the sole
negligence of Defendant Jay Michael way in causing the aforesaid
collision and Plaintiff peggy L. Hinke to sustain the injuries as set
forth in paragraph 23 of the Complaint as aforesaid, ~aid plaintiff has
suffered an impairment of her past and future earnings and an
impairment of her earning capacity and the loss of future earnings,
which sums are not recoverable by plaintiff Peggy L. Hinke under the
provisions of the Motor Vehicle Financial Responsibility Law, Act of'
February 12, 1984 (P.L. 26, No. 11), as amended, and claim is made
therefor.
27. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael way in causing the aforesaid
collision and Plaintiff Peggy L. Hinke to sustain the injuries as set
forth in Paragraph 23 of the Complaint as aforesaid, said plaintiff has
undergone mental and physical pain and suffering, anguish, humiliation,
and loss of life's pleasures, with limitations on her pursuit of
ordinary daily activities, all to her great loss and detriment, and
claim is made therefor.
28. As a further direct and proximate result of the sole
negligence of Defendant Jay Michael Way in causing the aforesaid
collision and Plaintiff peggy L. Hinke to sustain the injuries as set
forth in paragraph 23 of the Complaint as aforesaid, said plaintiff
does presently and will in the future undergo mental and physical pain
and sUffering, anguish, humiliation, loss of life's pleasures, with
limitation on her pursuit of ordinary daily activities, all to her
>
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great loss and detriment, and claim is made therefor.
29. As a direct and proximate result of those injuries sustained
by plaintiff Jerry E. Hinke set forth in detail hereinbefore at
paragraph 15, incorporated herein by reference, all of which were
caused solely, directly, and proximately by the negligence of Defendant
Jay R. Way and Defendant Jay Michael Way as previously set forth,
Plaintiff peggy L. Hinke has in the past and will continue in the
future to be deprived of the society, services, assistance,
companionship, comfort and affection of her spouse, Plaintiff Jerry E.
Hinke, all to her great damage and loss, and claim is hereby made by
Plaintiff Peggy L. Hinke for such loss of consortium.
WHEREFORE, Plaintiff Peggy L. Hinke makes claim for and demands
judgment against Defendant Jay R. Way and Defendant Jay Michael Way in
an amount in excess of Twenty-Five Thousand and NO/100 ($25,000.00)
. .."
DOllars, excluding and costs as further claimed. an amount in excess of
any jurisdictional amount requiring compulsory arbitration.
Respectfully submitted,
A. KLEIN, P.C.
:~ O~\::{L~OSBPH
Mark S. silver, Esquire
I.D, No. 09825
100 Chestnut Street, suite 210
Post Office BOX 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for Jerry E. Hinke and peggy
L. Hinke, husband and wife, Plaintiffs
Date: February\1 , 1998
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VERIPICA'l'ION
The undersigned, Jerry E. Hinke, hereby verifies and states that:
~, He is one of the named PlaintiffS herein;
2. The facts set forth in the foregoing COMPLAINT are true and
eor,.e' to ,he b.,t of hi' knowi.d9" informa'ion ,nd .'ii.f, .nd
3. He is aware that false statements herein are made subject to
ehe .,nai'i" of '8 .a.C.S.A. ,.90'. ,.,.ting '0 un,wam fa"ifie.tian
to authorities.
Date: February 13 , ~99B
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VERIFICATION
The undersigned, peggy L. Hinke, hereby verifies and states that:
1. She is one of the named Plaintiffs herein;
2. The facts Bet forth in the foregoing COMPLAINT are true and
correct to the best of her knowledge, information and belief; and
3. She is aware that false statements herein are made subject to
the penalties of 18 Pa.C.S.A. ~4904, relating to unsworn falsification
to authorities.
f~~~ l 'fi~,),_
Peggy L. e
Date: February \3 , 1998
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CERTIFICATE OF SERVICE
I, MARK S. SILVER, ESQUIRE, of the law firm of JOSEPH A.
KLEIN, P.C., attorneys for Plaintiffs, do hereby certify that on
this date I served the foregoing COMPLAINT by placing a true and
correct copy of same in the United States Mail, sent certified
mail, return receipt requested, postage prepaid, deposited at
Harrisburg, Pennsylvania, addressed to counsel for the Defendants
as follows:
Michael M. Badowski, Esquire
Reynolds & Havas
101 Pine Street
Post Office BOx 932
Harrisburg, PA 17108-0932
"
LAW OFJ1lrEJS 0: JOSEPH A. KLEIN, P.C.
By: I'}\ ,t...",
Mark S. 811 ver, Esquire
1.0. No. 09825
100 Chestnut Street, suite 210
post Office Box 1152
Harrisburg, PA 17108-1152
(717) 233-0132
Attorneys for plaintiffs
Date: April 15, 1998
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COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E, HINKE and
PEGGY L. HINKE,
Plaintiffs
No, 95-576 civil Term
v,
CIVIL ACTION - LAW
JAY R, WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
PRAECIPE
To the prothonotary of Cumberland county:
Please withdraw Defendants' Motion for Judgment non pros
filed with the Court on January 27, 1998,
REYNOLDS & HAVAS
^ professional Corporation
Date: S/I'C./9b By:
Michele J, Thorp
Attorney I,D, 71117
101 pine Street
Harrisburg, PA 17108-0932
(717) 236-3200
Counsel for Defendants,
Jay R, Way and Jay Michael Way
I hereby certify that I have served a true and correct
copY of the fore.oing document on eil coun.el 0' record by pl.cin.
the ..me in the united stete. ..il .t H.rri.hur., penn.ylV.ni.,
fir.t-cl... po.t..e prep.id, on the Liltd.y of ..y, "'"
addressed as followS:
~FRTTFTChTF. OF SFRVTCE
Mar~ S, Silver, Esquire
LaW Offices of Joseph A, Klein
100 Chestnut street, suite 210
post office Bo~ 1152
Harrisburg, pennsylvania 17108-11152
(Counsel for Plaintiffs)
REYNOLDS & HAVAS
A professional corporation
BY:
S aron De11-Ga
secretary
COMMONWEALTH OF PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
JERRY E. HINKE and
PEGGY L, HINKE,
Plaintiffs
No, 95-576 civil Term
v,
CIVIL ACTION - LAW
JAY R, WAY and
JAY MICHAEL WAY,
Defendants
JURY TRIAL DEMANDED
ORDF.R
AND NOW, this
day of
, 199B, upon
consideration of the Motion of Defendants for judgment non pros, it
is hereby ORDERED and DECREED that Defendants' Motion is GRANTED,
BY THE COURT:
, J,
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REYNOLDS & HAVAS
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ATTOANIIY8 AND COUNIIIILDRS AT LAw
101 PINI STRIIIT
p,o, BOM 932
HARRISBURG. PeNNBYLVANIA 17108-0932
Mark S, Silver, Esquire
Law Offices of Joseph A, Klein
100 Chestnut street, Suite 210
Post Office Box 1152
Harrisburg, PA 17108-11152
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No, 95~516 ci~il ~erm
COMMON\'!EI\'L~R of PENNS'lLVl\NIl\
10 .EE c<""" or co""oo ?LE". or """.......0 co"",,
consideration of the Motion of Defendants for ju....nt non ,,"So it
ia here" 0...... and OECOEEO that oefendante' Motion is .....EO.
JERR'l E, RINKE and
PEGG'l 1., RINKE,
PlaintiffS
v'
JI\'l R, \,!I\'l and
Jl\'l MICAAE'L \,!l\'l,
Defendants
~ CIVIL l\C~ION ~ LA\'!
,
,
,
,
,
,
JuR'l TRIl\L oEMJ>.NOED
gtloEB.
_, 1998, upon
I\ND NO\'! , this _ - daY of -
B'l TRE COUR~~
.1-:
-
B,
JERRY E, HINKE AND IN THE COURT OF COMMON PLEAS OF
PEGGY L, HINKE, husband , CUMBERLAND COUNTY, PENNSYLVANIA
,
and wife, ,
,
Plaintiffs ,
,
,
,
V, ,
,
,
,
JAY R, WAY & JAY MICHAEL WAY NO, 95-0576 CIVIL TERM
Defendants
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, CIVIL ACTION - LAW
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AND NOW, this
IN RE: DEFENDANTS' MOTION FOR NON-PROS
BEFORE HOFFER. P,J" OLER. J" GUIDO, J,
ORDER OF COURT
Jq~ day of JUNE, 199B, it appears to the
Court that a factual record must be established in order for us
to rule on Defendants Motion for Non-Pros, Therefore, a hearing
in this matter is scheduled for Monday, the 24th day of AUGUST,
199B, at 1:30 p,m, in Ccurtroom # 5 cf the Cumberland County
Courthouse, Carlisle, Pa,
Edward E, Guido, J,
Mark S, Silver, Esquire
For the Plaintiffs
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Michael M. Badowski, Esquire
For the Defendants
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ATTORNEVS AND COUNBe:LOAB AT LAw
101 PIN I! STREET
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HARRISBURO, PeNNsvLvANIA 17106-0932
Michele J. Thorp, Esquire
Reynolds & HavaB
Post Office Box 932
Harrisburg, PA 17108-0932
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August 18, 1998
The Honorable Edward Guido
Judge, Ninth Judicial District
Cumberland County Courthouse
One Courthouse Square
Carlisle, pennsylvania 17013-3387
Re: Rinke v, Way
Dooket No. 95-576
Our File No, 3857-1
Dear Judge Guido:
This is to confirm my telephone conversation with your
secretary regarding the above referenced matter, The hearing
scheduled for Monday, August 24, 1998, at 1:30 p.m, before Your
Honor is no longer necessary as the issue has been rendered moot,
Thank you for your consideration and should you have any
questions please feel free to contact me,
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CCI Mark S, Silver, Esquire
.Ccr1l11td .. Ch'll trial Ad."., b7 IhI 1'1.1..... _d "Trial Ad."I<)'
A '_hoonla SUI".... CtUIl A,...dUI<! Aatn<7
JERRY E, HINKE and PEGGY L.
HINKE, husband and wife,
Plaintiffs,
v.
J
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-576 CIVIL TERM
JAY R, WAY and JAY MICHAEL WAY,:
Defendants. JURY TRIAL DEMANDED
TO THE PROTHONOTARY:
PRAECIPE TO SETTLE AND DISCONTINUE
Please mark the above-captioned case settled and discontinued
on the docket and issue a certificate therefor.
Dated:
q.~~~
LAW 0 F CES OF JOSEPH A, KLEIN, P,C,
By:
. S lver, Esquire
1.0, # 09825
100 Chestnut street, Ste, 210
P.O. Box 1152
Harrisburg, PA 17108
Phone (717) 233-0132
Attorneys for Plaintiffs
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