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THE NEWS-CHRONICLE CO., INC. : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
T.C.T. ENTERPRISES, INC., : NO. 1332 CIVIL 1992
A PENNSYLVANIA CORPORATION, :
T/D/B/A MINUTEMAN PRESS :
IN RE: ARGUMENT COURT
BEFORE BAYLEY, J., GUIDO, J.
AND NOW, this
ORDER OF COURT
day of MARCH, 1998, after argument it
appears that the issues in this case are identical to those in
the case of Kavalecs v. Boyer, 93-2636 Civil Term [a copy of
Judge Oler's unpublished opinion is attached hereto], therefore,
Defendant's Motion for Entry of Judgment of Non Pros is DENIED.
By the Court,
Edward E. Guido, Judge
David W. Knauer, Esquire
For the Plaintiff
David C. Cleaver, Esquire
Michael E. Carson, Esquire
For the Defendant
:sld
RAYONA C. KAVALECS and
JAMES J. KAVALECS,
Plaintiffs
Vo
RICHARD J. BOYER,
Defendant
IN THE COURT OF COMMON PLE~ OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 93-2636 CIVIL TERM
IN RE: DEFENDANT'S MOTION FOR juDGMENT OF NON PROS
·
BEFORE HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~~day of May, 1997, upon consideration
of
Defendant's motion for judgment of non pros, and for the reasons
stated in the accompanying opinion, the motion is DENIED.
Howard B. Krug, Esq.
1719 North Front Street
Harrisburg, PA 17 !02
Attorney for Plaintiffs
BY THE COURT,
James G. Nealon, III, Esq.
301 Market Street, 9th Fi.
Harrisburg, PA 17101
Attorney for Defendant
: rc
RAYONA C. KAVALECS and
JAMES J. KAVALECS,
Plaintiffs
Vo
RICHARD J. BOYER,
Defendant
: iN THE COURT OF COMMON PLEAS OF
: CUMBE~D COUNTY, PENNSYLVANIA
:
·
: CIVIL ACTION - I.~W
: NO. 93-2636 CIVIL TERM
IN RE: DEFENDANT' $ MOTION FOR JUDGMENT OF NON PROS
BEFOgR HOFFER and OLER, JJ_.
OPINION and ORDER OF COURT
Oler, J.
This is a personal injury case arising out Of an automobile
accident that occurred on August 24, 1991. Presently before the
court is Defendant's motion for judgment of non pros. For the
reasons stated in this opinion, Defendant's motion will be denied.
STATEMENT OF FACTS -
The following facts are alleged in Plaintiffs ' complaint:
Plaintiffs Rayona C. Kavalecs and James J. Kavalecs are adult
individuals living at R.D. ~ 1, Box 533, Landisburg, Perry County,
Pennsylvania.~ Defendant Richard J. Boyer is an adult individual
residing at 21 South Enola ~Drive, Enola, Cumberland County,
Pennsylvania.~
Plaintiffs allege that on August 24, 1991, a collision
occurred between a vehicle driven by Plaintiff Rayona C. Kavalecs
and a vehicle driven by Defendant Richard j. Boyer at the
intersection of Pennsylvania State Routes 34 and 850 in Perry
Plaintiffs' Complaint, paragraph 1.
Plaintiffs' Complaint, paragraph 2.
NO. 93-2636 CIVIL TERM
County, Pennsylvania.3 Plaintiffs claim that Defendant caused the
accident by negligently running a stop sign-4
Plaintiffs aver that as a result of the accident Plaintiff
Rayona C. Kavalecs received injuries to her arm, shoulder, and
neck.5 Plaintiffs request money damages for medical expenses, loss
of earnings, and pain and suffering with respect t.o Plaintiff
Rayona C.' Kavalecs and for loss of consortium with respect to
Plaintiff James J. Kavalecs.
pROCEDURAL HISTORY
Plaintiffs commenced the current action by filing a praecipe
for writ of summons on August 18, 1993. Thereafter, no activity
was noted on the docket for a period of approximately three years
and one month. Therefore, pursuant to Pennsylvania Rule of
Plaintiffs' Complaint, paragraphs 3-8.
· Plaintiffs' Complaint, paragraphs 7-8.
Plaintiffs' Complaint, paragraph 10.
NO. 93-2636 CIVIL TERM
Judicial Administration 1901 and Cumberland County Rule of
·
procedure 228,~ the matter was placed' on the court's list of cases
which were to be dismissed with prejudice due to lack of docket
activity, unless good cause w&s shown why they should be continued,
on or before October 29, 1996.? Notice of this list was given to
attorneys of record and published in the Cumberland Law Journal
dated September 13, 1996.'
Rule 228 provides as follows:
The Prothonotary shall list, for general
call on the last Tuesday of October of each
year, all civil matters which are not at
issue, and in which no proceedings of record
have ~occurred during the two years or more
immediately prior thereto. The Prothonotary
shall, in the manner provided, by Pa. R.J.A.
1901(c), notify counsel of' record and any
parties for whom no appearance has been
entered, that the matter has been so listed.
If no action is taken, and no written
objection is filed in a listed matter prior to
the time set for the general call, the
Prothonotary shall strike the matter from the
list, and enter an order as of course
dismissing the matter for failure to
prosecute. If, at the call of the list, no
good cause is shown why a matter should be
continued, the court shall enter an order
dismissing that matter with prejudice.
? See In Re: Dismissal of Cases Pursuant to Pa. R.J.A. No.
1901, No. 96-5932 Civil Term (October 29, 1996) (Sheely, P-J-)- ;
Id.
· o
NO. 93-2636 CIVIL TERM
Plaintiffs filed written objections to the proposed dismissal
.
of the case with the court.' In consideration of the written
objections filed by Plaintiffs, President Judge Harold E. Sheely of
this court, by order dated November 8, 1996,~° and entered on the
docket, removed the case from the list of cases to be purged at
that time on condition that activity appear on the docket within 90
days. Plaintiffs had in fact already filed a complaint on October
15, 1996.
On November 14, 1996, -Defendant filed an answer to Plaintiffs'
complaint with new matter. The instant motion for judgment of non
pros was filed on November 21, 1996. On December 3, 1996,
Plaintiffs filed a reply to Defendant's new matter and an answer to
Defendant's motion for judgment of non pros. Argument was heard on
Defendant's motion for judgment of non pros on March 5, 1997.
·
STATEMENT OF LAW
_
In Pennsylvania, the decision to enter a judgment of non pros
is clearly within the discretion of the court. Pennridge Eiec.,
Inc. v. Souderton Area Joint School Auth., 419 Pa. Super. 201, 206,
615 A.2d 95, 98 (1992). In Penn Piping, Inc. v. Insurance Co. of
North America, 529 Pa. 350, 354, 603 A.2d 1006, 1008 (1992), the
Pennsylvania Supreme Court formulated a three-prong test to
' See Order of Court, November 8, 1996, No. 96-5932 civil
Term (Cumberland County) (Sheely, P.J.).
~o Id.
NO. 93- 2636 CIVIL TERM
determine when a judgment of non pros is appropriate. Under the
Penn Piping test, a judgment of non pros may be entered when: (1)
a party has displayed a lack of due diligence in 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. Id. at 356, 603 A.2d at 1009. In cases where the delay is
two years or more and the plaintiff fails to offer a compelling
reason for the inactivity, "the delay will be presumed prejudicial
for purRoses of any proceeding to dismiss for. lack of activity on
the docket." Id. It is left to the discretion of the court to
determine whether an explanation for the delay is compelling. Id.
at 356 n.2, 603 A.2d at 1009 n.2.
Pennsylvania Rule of Judicial Administration 1901 directs each
court of common pleas in Pennsylvania to Provide by local rule for
the termination of matters which have been inactive for an
unreasonable period of time. In addition, Pennsylvania Rule of
Civil Procedure 239(f) provides that a civil action may be
dismissed for failure to comply with a local rule promulgated under
Pennsylvania Rule of Judicial Administration 1901.
,
.. This court has adopted a local rule pursuant to Pennsylvania
Rule of Judicial Administration 1901 in the form of Cumberland
County Rule of ProCedure 228. Rule 228 directs that all civil
matters which have been inactive for a period of two years or more
be placed 'on a purge list. The cases on the list are to be
NO . 93- 2636 CIVIL TERM
dismissed with prejudice if no objections are filed or, if
objections are filed, "no good cause is shown why a matter should
be continued" on or before the last Tuesday of October of each
year.
The Supreme Court in Penn Piping noted that Pennsylvania Rule
of Judicial Administration 1901 was not implicated in its decision,
because the county court in which the matter arose had not adopted
a local rule under Pennsylvania Rule of Judicial Administration
1901. Id. at 353, 603 A.2d at 1007-08. The Supreme Court has,
nonetheless, .indicated that the same standards apply to dismissals
pursuant to Rule 1901 and thOse pursuant to motions for judgment of
non pros. Streidl v. Community General Hosp., 529 Pa. 360, 362
n. 2, 603 A. 2d 1011, 1012 n. 2 ( 1992 ). Additionally, the
Pennsylvania Superior Court has noted that "local rules of court
enacted pursuant to Pa. R..J.A. 1901 and a motion for non pros filed
by a private party are alternative 'and equally appropriate means of
obtaining dismissal based upon a lack of docket activity." Dorich
v. DiBacco, 440 Pa. Super. 581, 589, 656 A.2d 522, appeal denied,
542 Pa. 669, 668 A.2d 1132 (1995).
In Pennsylvania, it "has long [been] recognized that judges of
· ·
coordinate jurisdiction sitting in the same case should not
overrule each others' decisions." Commonwealth v. Start, 541 Pa.
564, 573, 664 A.2d 1326, 1331 (1995). The coordinate jurisdiction
rule "embod[ies] the concept that a court involved in the later
NO . 9 3- 2636 CIVIL TERM
phases of a litigated matter should not reopen questions decided by
another judge of that same court or by a higher court in the
earlier phases of the matter." Id. at 574, 664 A.2d at 1331. By
providing for continuity with respect to judicial rulings in a
case, the coordinate jurisdiction rule promotes judicial economy,
protects the settled expectations, of the parties, ensures
uniformity of decisions, and maintains consistency during the
course of a case. Id. Therefore, a judge should depart from the
coordinate jurisdiction rule "only in exceptional circumstances
such as where there has been an intervening change in the
controlling law, a substantial change in the facts or evidence
giving rise to the dispute .in the matter, or where the prior
holding was clearly erroneous and would c.reate a manifest injustice
if followed." Id. at 575-76, 664 A.2d at 1332.
DISCUSSION
Various factors have led the court to conclude that its
discretion in the present case should be exercised to deny
Defendant's motion for judgment of non pros. When Defendant filed
his motion -for judgment of non pros, the issue of whether
Plaintiffs' case should be dismissed due to 'the three-year-and-one-
month lack of docket activity had already been ruled upon in an
~ and entered on the docket.
order of court, dated November 8, 1996, .
~ Order of Court, November 8, 1996, No. 96-5932 Civil Te~n
(Cumberland County) (Sheely, P.J. ) .
7
NO . 93- 2636 CIVIL TERM
That order removed the instant case from the court's list of
matters which merited dismissal with prejudice for lack of docket
activity in excess of two years. Less than one month later,
Defendant filed the instant motion for judgment of non .pros,
asserting that the case merited dismissal due to the aforementioned
lack of activity.
To grant a motion for judgment of non pros under these
circumstances would effectively contravene the sound policy
considerations which inspired the coordinate jurisdiction rule.
First, the interests of judicial economy would be adversely
affected by permitting Defendant to re-litigate an issue already
decided. Second, President Judge Sheely's order of November 8,
1996, authorized Plaintiffs to move their case forward, despite the
three-year-and-one-month period of inactivity which had occurred
previously in the case; in reliance upon the avenue of relief
provided for in the local rule, Plaintiffs, before and after the
order, expended time and presumably money for the preparation and
filing of pleadings. It would be disruptive of the settled and
reasonable expectations of the-parties to dismiss the case for lack
of..activity at this time.
Third, the interests of maintaining uniformity of decisions
and consistency in the same case militate against dismissing the
action at this time. The same standards are applied to dismissals
pursuant to local rules enacted under Pennsylvania Rule of Judicial
NO. 93-2636 CIVIL TERM
Administration 1901 as are applied to motions for judgment of non
pros. ~2 Additionally, these two methods "are alternative and
equally appropriate means of obtaining dismissal based upon a lack
of docket activity."~' In proceeding with a motion for judgment of
non pros after a ruling by the court that dismissal for lack of
docket activity was not appropriate in the case, Defendant would
-have the court make a ruling contrary to the earlier order. There
'are no exceptional circumstances which would warrant the court's
.. entry of such a contrary order. There has been no change in the
law or the facts of this case since the order of court dated
November 8, 1996, was issued.
For the foregoing reasons, the following order will be
entered:
ORDER OF COURT
_
AND NOW, this 14th day of May, 1997', upon consideration of
Defendant's motion for judgment of non pros, and for the reasons
·
stated in the accompanying opinion, the motion is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
j. wesley Oler, Jr., J.
~ Streidl v. Community General Hosp., 529 Pa. 360, 362 n.2,
603 A.2d 1011, 1012 n.2 (1992).
~ Dorich v. DiBacco, 440 Pa. Super. 581, 589, 656 A.2d 522,
526, appeal denied, 542 Pa. 669, 668 A.2d 1132 (1995).
NO. 93- 2636 CIVIL TERM
Howard B. Krug, Esq.
1719 North Front Street
Harrisburg, PA 17102
Attorney for Plaintiffs
James G. Nealon, III, Esq.
301 Market Street, 9th Fi.
Harrisburg, PA 17101
Attorney for Defendant
10