Loading...
HomeMy WebLinkAbout91-0461 CivilJOHN C. EHLING, Plaintiff v. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 0461 CIVIL 1991 IN RE: DEFENDANT'S MOTION FOR JUDGMENT OF NON PROS BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this ~ day of February, 1998, upon consideration of Defendant's Motion for Judgment of Non Pros, the motion is denied. Kavalecs v. Boyer, No. 93-2636 Civil Term (Cumberland County) (May 14, 1997) (copy attached). BY THE COURT, J. ' O1 ~r.,~k~j "~' ' ~ J'  esley Joseph V. Restifo, Esq. 1201 Chestnut Street Philadelphia, PA 19107 Attorney for Plaintiff Steven C. Gould, Esq. Deputy Attorney General Commonwealth of Pennsylvania Off{ce of the Attorney General Torts Litigation Section 15th Floor - Strawberry Square Harrisburg, PA 17120 Attorney for Defendant :rc RAYONA C. KAVALECS and JAMES J. KAVALECS, Plaintiffs RICHARD J. BOYER, Defendant IN THE COURT OF COMMON PLEAS 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 17102' Attorney for Plaintiffs BY THE COURT, J~esley 01~ Jr., J. ~ James G. Nealon, III, Esq. 301 Market Street, 9th Fi. Harrisburg, PA 17101 Attorney for Defendant : rc RA¥ONA C. KAVALECS and JAMES J. KAVALECS, Plaintiffs Ve RICHARD J. BOYER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 93-2636 CIVIL TERM IN RE: Oler, J. DEFENDANT'S MOTION FOR JUDGMENT OF NON PRO~ BEFORE HOFFER and OLER, JJ. OPINION and ORDER OF COURT 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.2 Plaintiffs allege that on August 24, 1991, a collision o~curred 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.s Plaintiffs request money damages for medical'expenses, loss of earnings, and pain and suffering with respect to 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. 2 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 was shown why they should be continued, on or before October 29, 1996.7 Notice of this list was given to attorneys of record and published in the Cumberland Law Journal dated September 13, 1996.8 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. 3 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, 19961 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 Elec., 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, Term (Cumberland County) (Sheely, P.J.). Id. 4 1996, No. 96-5932 Civil 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 purposes 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 5 NO. 93-2636 CIVIL TERM dismissed with prejudice if no objections a~e 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. Starr, 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 6 NO. 93-2636 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 create 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 p%gintiffs' case should be dismissed due to the three-year-and-one- month lack of docket activity had already been ruled upon in an order of court, dated November 8, 1996,~ and entered on the docket. ~ Order of Court, November 8, 1996, No. 96-5932 Civil Term (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 o~.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.''~3 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. the foregoing reasons, the following order will be For 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. ~2 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 Fl. Harrisburg, PA 17101 Attorney for Defendant 10