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Home My WebLink About95-1207 CivilCONSOLIDATED PROPERTIES, Plaintiff PETER BOOKHOLT, JACK BARTON, and GARY GRISSINGER, individually and trading as Larson/D.R.M., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-1207 CIVIL TERM IN RE: DEFENDANTS' JOINT MOTION FOR JUDGMENT OF NON PROS BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this/~ay of February, 1998, upon consideration of Defendants' Joint Motion for Judgment of Non Pros, and for the reasons stated in the accompanying opinion, the motion for judgment of non pros is denied. This matter may proceed to a hearing before the Board of Arbitrators previously appointed by the Honorable Harold E. Sheely. Stephen C. Nudel, Esq. 219 Pine Street Harrisburg, PA 17101 Attorney for Plaintiff Sco~t D. Moore, Esq. 26 West High Street Carlisle, PA 17013 Attorney for Defendants Peter Bookholt and Gary Grissinger BY THE COURT, 4~ley Ole~/~., J. ~/ ' William C. Kollas, Esq. Suite 104 1104 Fernwood Avenue Camp Hill, PA 17011 Attorney for Defendant Jack Barton :rc CONSOLIDATED PROPERTIES, Plaintiff Ve PETER BOOKHOLT, JACK BARTON, and GARY GRISSINGER, individually and trading as Larson/D.R.M., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND ~OUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-1207 CIVIL TERM IN RE: DEFENDANTS' JOINT MOTION FOR JUDGMENT OF NON PROS BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT Oter, J., February 13, 1998. For disposition in this case arising out of an alleged breach of a lease by Defendants is Defendants' Joint Motion for Judgment of Non Pros. The motion is based upon a lack of docket activity for a period exceeding two years. For the reasons as stated in this opinion, Defendants' motion will be denied. PROCEDURAL HISTORY; STATEMENT OF FACTS On March 7, 1995, Defendant Jack Barton filed an appeal from a district justice's judgment entered in favor of Plaintiff Consolidated Properties in the above-captioned matter. Plaintiff filed a complaint against Defendants on March 24, 1995. An answer to'the complaint was filed by Defendant Barton on April 12, 1995, and an answer with new matter and counterclaim was filed by Defendants Peter Bookholt and Gary Grissinger on April 13, 1995. Plaintiff filed a reply to the new matter and counterclaim on May 3, 1995. NO. 95-1207 CIVIL TERM No further activity appears on the docket until October 21, 1997, when Defendants filed the motion for judgment of non pros sub judice. On November 6, 1997, Defendants listed the motion for argument, and on November 12, 1997, Plaintiff filed an extensive answer with new matter to the motion for judgment of non pros, citing the occurrence of discovery activity during the period of docket inactivity. On November 13, 1997, Plaintiff filed a petition for appointment of arbitrators, notwithstanding Defendants' outstanding motion for judgment of non pros. President Judge Sheely appointed a board of arbitrators on December 12, 1997. The board of arbitrators has not convened to hear the case, because of the pending motion for judgment of non pros. With respect to discovery activity occurring during the period between May 3, 1995, and October 21, 1997, when no activity appears on the docket, Plaintiff asserts, without apparent dispute by Defendants, as follows: that on December 8, 1995, Plaintiff forwarded a set of forty-four interrogatories and a request for production of documents intended to be produced at trial to Defendant. Barton; that on the same date Plaintiff forwarded a similar set of interrogatories and request for production of documents to Defendants Bookholt and Grissinger; that on December 15, 1995, Defendant Barton forwarded responses to Plaintiff's interrogatories and request for production of documents to 2 NO. 95-1207 CIVIL TERM Plaintiff; that on January 29, 1996, Defendants Bookholt and Grissinger forwarded responses to Plaintiff's interrogatories and request for production of documents to Plaintiff; that on March 27, 1996, Defendants Bookholt and Grissinger forwarded a set of seventeen interrogatories and a request for production of documents to Plaintiff; that on June 18, 1996, Plaintiff forwarded responses to Defendants' interrogatories and request for production of documents to Defendants Bookholt and Grissinger; that on July 10, 1996, Defendants Bookholt and Grissinger forwarded a subpoena and notice of records deposition to one Richard Moore, an employee of a realty company involved in the case; and that on February 21, 1997, Defendants Bookholt and Grissinger forwarded to Plaintiff copies of the records produced by Mr. Moore. According to Plaintiff, "[s]ince the time of the [docket entry on May 3, 1995], Plaintiff ha[d] been conducting discovery, evaluating its claim against Defendants and attempting to settle the matter." DISCUSSION "It is well settled law that the question of granting a non pros because of the failure of the plaintiff to prosecute his action within a reasonable time rests with the discretion of the [trial c]ourt .... " Gallagher v. Jewish Hospital Ass'n, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). As the Pennsylvania Supreme Court has stated, a judgment of non pros may properly be entered 3 NO. 95-1207 CIVIL TERM when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable 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 an explained absence of material witnesses. James Brothers Lumber Co. v. Union Banking and Trust, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). The three conditions referred to by the Pennsylvania Supreme Court are prerequisites to the proper entry of a judgment of non pros in the present context. See Shughart, Pennsylvania Civil Practice, ~8.4, at 124 (2d ed. 1993). However, "in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket." Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 356, 603 A.2d 1006, 1009 (1992). "[D]ue diligence in prosecuting one's cause of action may be demonstrated by activity not reflected on the docket, even where the period of docket inactivity exceeds two years." Gohel v. Montgomery Hospital, Pa. Super. , , 698 A.2d 653, 655 (1997); see, e.g., Davis v. Lexeen, Inc., 117 Dauphin Co. 138 (1997). (defendants' motion for judgment of non pros denied where non-docket activity by plaintiffs, including discovery, indicated due diligence). In the present case, there was, in the court's view, significant discovery engaged in during the period of docket 4 NO. 95-1207 CIVIL TERM inactivity relied upon by Defendants in support of their motion for judgment of non pros. Cf. State of the Art Medical Products, Inc. v. Aries Medical, Inc., 456 Pa. Super. 148, 689 A.2d 957 (1997). The record does not demonstrate a failure on the part of Plaintiff to proceed diligently which would lead this court to exercise its discretion in favor of the entry of a judgment of non pros on behalf of Defendants. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 13th day of February, 1998, upon consideration of Defendants' Joint Motion for Judgment of Non Pros, and for the reasons stated in the accompanying opinion, the motion for judgment of non pros is denied. This matter may proceed to a hearing before the Board of Arbitrators previously appointed by the Honorable Harold E. Sheely. BY THE COURT, Stephen C. Nudel, Esq. 219 Pine Street Harrisburg, PA 17101 Attorney for Plaintiff Scott D. Moore, Esq. 26 West High Street Carlisle, PA 17013 Attorney for Defendants Peter Bookholt and Gary Grissinger s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 5 NO. 95-1207 CIVIL TERM William C. Kollas, Esq. Suite 104 1104 Fernwood Avenue Camp Hill, PA 17011 Attorney for Defendant Jack Barton :rc