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HomeMy WebLinkAbout90-3591 civilGEORGE S. MILLER and MILDRED E. MILLER, Plaintiffs Ve RIC L. POTTEIGER and K. GELINAS RI CE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 3591 CIVIL 1990 CIVIL ACTION - EQUITY IN RE: DEFENDANTS' MOTION FOR NON-PROS AND PLAINTIFFS' MOTION FOR SUMMARY JUDgmeNT BEFORE HOFFER, P.J., OLER, GUIDO, J.J. day of NOVEMBER, 1998, Defendants' Motion for Non Pros and Plaintiffs' Motion for Summary Judgment are DENIED. Defendants are directed to respond to Plaintiffs' Request for Admissions within thirty (30) days of receipt of this Order. The parties are directed to complete all depositions and any other outstanding discovery within sixty (60) days of today's date. Plaintiffs shall list this matter for trial within seventy-five (75) days of today's date. By th Edwa~ Guido, J. Marla K. Miller, Esquire For the Plaintiffs Frances H. Del Duca, Esquire For the Defendants :sld GEORGE S. MILLER and MILDRED E. MILLER, Plaintiffs V® RIC L. POTTEIGER and K. GELINAS RI CE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 3591 CIVIL 1990 CIVIL ACTION - EQUITY IN RE: DEFENDANTS' MOTION FOR NON-PROS AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, GUIDO, J.J. OPINION AND ORDER OF COURT This case has been pending since October of 1990. Between 1990 and December of 1995 there were at least fifteen (15) petitions or motions filed. In addition, there were no fewer than three (3) sets of preliminary objections to various pleadings. The cannonade of legal paper ceased for a while on December 7, 1995 when Judge Hess denied each party's motion for summary judgment. There was no docket activity from December 7, 1995 until January 9, 1998 when the Plaintiff's filed a "Notice of Service of Discovery." That filing was a spark that started a barrage of motions and counter motions that brings us to today. Currently before us is a Motion for Non Pros filed by Defendants as well as a Motion for Summary Judgement filed by Plaintiffs. Both motions have been briefed and argued by counsel. They are both now ready for disposition. NO. 3591 CIVIL 1990 - CIVIL ACTION - EQUITY DISCUSSION A. Defendants' Motion for Non Pros. On January 21, 1998, the Defendant filed a Motion for Non- Pros. At that time our standard of review in ruling on such motions was controlled by Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992). However, on April 2, 1998, our Supreme Court decided Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998) which abandoned the presumption of prejudice to the Defendant upon a showing of two years of docket~ inactivity. The revised standard of review as articulated by the Supreme Court in Jacobs is as follows: To dismiss a case for inactivity pursuant to a defendant's motion for non pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant. Id. at 1103. In the instanl January 6, 1993 uni activity occurred their Motion for Nc ~The only dock praecipe filed by ~ This cannot be cons v. National Fuel Ga 2On January 9, case there was no docket activity from ~il January 4, 1995. ~ In addition, no docket rom December 7, 1995 until Defendants filed n Pros on January 21, 1998.2 We are satisfied et activity during that time frame was a laintiffs' counsel noting a change of address. idered substantive docket activity. See Chase s Corp., 692 A.2d 155 (Pa. Super. Ct. 1997). 1998, Plaintiffs' counsel filed a "Notice of Service of Discover'y" and on January 13, 1998, Plaintiffs' counsel filed anotker praecipe noting a change of address. Neither of these actions can be considered substantive docket NO. 3591 CIVIL 1990 - CIVIL ACTION - EQUITY that the first two prongs of the three prong test have been met. Clearly the Plaintiff has failed to diligently pursue this action. It has been pending for eight (8) years without any docket activity for more than half of that time. Further, we are particularly unimpressed by the reasons Plaintiffs' counsel has given for the long periods of docket inactivity. In essence we are told that the time was taken up in trial preparation. We cannot imagine even the most complicated of cases requiring over eight (8) years to prepare for trial. However, it is equally clear to us that the Defendants have failed to satisfy the third prong of the test. They have not shown actual prejudice. While they have suffered a lis pendens against their property, and they have had to bear the anxiety and cost of litigation over the past eight (8) years, they do not contend that they have lost the ability to adequately prepare a defense. As our Supreme Court noted: In cases where no activity has occurred for a period of two years, but the defendant has not lost his ability to adequately prepare a defense, it serves no equitable purpose to dismiss the plaintiff's case solely due to the passage of time. Jacobs, 710 A.2d at 1102. Therefore, we must deny Defendants' Motion for Non-Pros. B. Plaintiffs' Motion for Summary Judgment. On December 7, 1995, Judge Hess denied Cross Motions for Summary Judgment filed by both parties. On January 15, 1998, activity. See Chase, supra. 3 NO. 3591 CIVIL 1990 - CIVIL ACTION - EQUITY Plaintiffs served a Request for Admissions upon Defendants' counsel.3 On February 24, 1998, Plaintiffs filed a Motion for Summary Judgment on the basis that Defendants failed to respond to the Request for Admissions within thirty (30) days. As a result, Plaintiffs contend, all matters contained therein are deemed to be admitted. Therefore, they argue, they are entitled to Summary Judgment on the issue of liability. We wholeheartedly disagree with Plaintiffs' position. At the outset, it is not set in stone that the matters dealt with in the request for admissions must be deemed to be admitted. Pa. Rule of Civil Procedure 4014(b) provides in relevant part: "The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the Party requesting the admission a verified answer or an objection addressed to the matter .... " (emphasis added) Pa.R.Civ. P. 4014(b). Therefore, it is within our discretion to give Defendants additional time to respond to the Request for Admissions. Based upon the unique facts of this case, we elect to exercise that discretion. The Request for Admissions was served seven and one half (7 1/2) years after the action was commenced and more than two (2) years after the last docket activity in this case. In addition, it was served almost six (6) years after responses to a similar Request for Admissions had been filed by the Defendants. Defense 3There had been a previous Request for Admissions to which Defendants had responded in March of 1992. NO. 3591 CIVIL 1990 - CIVIL ACTION - EQUITY counsel has argued that she had no legal obligation to respond since the Request was made merely to harass the Defendants. We do not agree with that position. However, neither do we feel that the interests of justice would be served by granting Plaintiffs' Motion for Summary Judgment based upon Defendants' failure to respond to that Request. Pa. Rule of Civil Procedure 126 provides in relevant part that: The rules shall be liberally construed to secure the just ·.. determination of every action .... The court at every stage of any such action may disregard any error or defect of procedure which does not affect the substantive rights of the parties. Pa.R.Civ. P. 126; see also Andrinq v. Arnold, 47 Cumb. 183 (1998). Plaintiffs cannot seriously contend that their substantive rights have been affected by Defendants' failure to promptly respond to their Request for Admissions.4 This is especially true in light of Plaintiffs' failure to diligently pursue this action. Therefore, in order to preserve the substantive rights of the parties and to secure a just determination of this action on the merits, we feel compelled to grant Defendants additional time to answer Plaintiffs' Request for Admissions. This matter has been dragging on for more than eight (8) years. The pleadings have been closed for more than three (3) years as evidenced by the cross motions for summary judgment 4Defendants' response was less than ten (10) days overdue when Plaintiffs filed the Motion for Summary Judgment. NO. 3591 CIVIL 1990 - CIVIL ACTION - EQUITY filed in 1995. There has been more than ample time to complete discovery. It is time to end the pretrial bickering and to proceed expeditiously to trial. Accordingly, we will enter the following order,s ORDER AND NOW, this .gTH day of NOVEMBER, 1998, Defendants' Motion for Non Pros and Plaintiffs' Motion for Summary Judgment are DENIED. Defendants are directed to respond to Plaintiffs' Request for Admissions within thirty (30) days of receipt of this Order. The parties are directed to complete all depositions and any other outstanding discovery within sixty (60) days of today's date. Plaintiffs shall list this matter for trial within seventy-five (75) days of today's date. By the Court, Marla K. Miller, Esquire For the Plaintiffs Frances H. Del Duca, Esquire For the Defendants :sld /s/ Edward E. Guido Edward E. Guido, J. SPa. Rule of Civil Procedure 1035.2 provides that a party may move for summary judgment "after the relevant pleadings are closed, but within such time as not to unreasonably delay trial...". In view of our Order in this matter, any subsequent motion for summary judgment must be deemed to "unreasonably delay trial" and will not be entertained.