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Home My WebLink About94-6887 CivilRIC~ DELAI~ Plaintiff BLAINE L. PAULUS and MELVIN C. DUNLAP, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW · No. 94-6887 CIVIL TERM _IN RE: DEFENDANTS' PETITION FOR JUDGMENT OF NON PROS BEFORE OLER~ J · ORDER OF COURT AND NOW, this t~ ~day of March, 1998, upon consideration of Defendants' Petition for Judgment of Non Pros, and for the reasons stated in the accompanying opinion, Defendants' petition is granted and Plaintiff's complaint is dismissed. Richard Delai #BU-1813 P.O. Box 200 Camp Hill, PA 17001-0200 Plaintiff, Pro Se BY THE COURT, Steven C. Gould, Esq. Deputy Attorney General Office of Attorney General -Torts 15th Floor -- Strawberry Square Harrisburg, PA 17120 Attorney for Defendants R/CHARD DELAI, Plaintiff BLAINE L. PAULUS and MELVIN C. DUNLAP, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW · No. 94-6887 CIVIL TERM ,IN RE: DEFENDANTS' PETITION .FOR JUDGMENT OF NON PROE .,,BEFORE OLER~ J OPINION and ORDER OF COURT OLER, J., March 16, 1998. In this slip-and-fall case a state prisoner is suing two employees of the Pennsylvania Department of Corrections for $250,000.00 for negligently exposing a hole in a cement ramp. For disposition at this time is a petition for judgment of non pros, based upon lack of docket activity, filed on behalf of the defendants. For the reasons stated in this opinion, the petition for judgment of non pros will be granted. STATEMENT OF FACTS Plaintiff commenced the present action by the filing of a complaint on December 6, 1994· Pursuant to an order issued by the Honorable Kevin A. Hess offltis court, the filing fee was waived in response to Plaintiff's motion to proceed in forma pauperis. Defendants filed an~ ~ags~_wer with new matter to the complaint on January 6, 1995· The pleadings were closed on January 18, 1995, with the filing of PlaintiWs reply to Defendants' new matter.~ I See "Plaintiff's Answers to Defendants Claim of New Matter." On May 12, 1995, Plaintiff filed a motion to compel discovery.2 This motion was denied by order of court on May 15, 1995, because it did not appear that Plaintiff had requested the discovery from Defendants prior to filing the motion. Plaintiff filed a motion on June 22, 1995, requesting appointment of free counsel. This motion was denied by order of cfurt dated June 27, 1995. On September 7, 1995, Plaint/fi, filed answers of the Defendants to a set of interrogatories propounded by Plaintiff. This filing was in contravention of Pennsylvania Rule of Civil Procedure 4002.1.3 With the exception of the filing of two praeciPes for substitution of counsel on behalf of Defendants, no further activity appears on the docket until December 19, 1997. On that date, Defendants filed the petition for jud~cnnent of non pros subjudice. The basis for the petition was the lack of docket activity for a period in excess of two years. In response to Defendants' petition, the court issued a nde upon Plaintiff to show cause why the relief requested should not be granted.4 Plaintiff filed an answer to the petition, asserting that he had sent a letter to the writer of this opinion on December 29, 1995, with a carbon copy to the "clerk of court,' requesting reconsideration of the court's earlier denial ofhis motion for appointment of free counsel. No record of this letter has been found in the court's office. Nor was such a letter apparently received for docketing by the prothonotary.~ ~-- 2 This motion was entitled "Motion for Inspection and Production of Documents and for Inspection and Production of Photographs and Physical Evidence." 3 "Discovery material shall not be filed unless relevant to a motion or other pretrial proceeding, ordered by the court or required by statute." Pa. R.C.P. 4002.1. n Order of CoUrt, December 24, 1997. ~ In this regard, it may be noted that the clerk of courts in Cumberland County maintains criminal case files, whereas the prothonotary's office is the repository for civil cases. It is doubtful, however, that a copy of a letter to a judge would be the proper subject of a docket entry in either office. DISCUSSION "[T]he 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 .... " Gallagherv. JewishHospitalAss'n, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). As stated by the Pe isnnsylvania Supreme Court; a judgment of non pros may properly be entered when a party to the proceeding had shown a want of due diligence in f 'ailing 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). "[I]n 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). In this regard, the proper focus is upon the docket, and it is the obligation of the plaintiff to monitor the docket. The court in Penn Piping was clear that it was referring to a two year time in which there was no activity on the docket. The court specifically stated "if the delay is for two years or more, the case may be dismissed for lack of activity on the docket." The nde set forth in Penn Piping is unambiguous and easy to apply. The trial court must look to the docket to determine if there is any indication of activity. It is the plaJ~ntitFs duty to move the case forward and to monitor the dockej to reflect that movement. If there is no evidence of acfivi_tyalapearing on the docket for a period in excess of two years, under the standard of Penn Piping prejudice can be presumed. State of the ArtMedical Products, Inc. v. Aries Medical, Inc., 456 Pa. Super. 148, 153, 689 A.2d 957, 960 (1997) (emphasis in original) (citations omitted). Activity on the docket which is not of a substantive nature will not suffice to avoid the effect of the Penn Piping nde. See Collura v. L & E Concrete Pumping, Inc., 454 Pa. Super. 572, 577, 686 A.2d 392, 395 (1996). Substitutions of counsel, for example, are not the type of positive docket action which will constitute Penn Piping activity. Id. An application of the foregoing principles to the record in the present case leads to the conclusion that the three-prong test for entry of a judgment of non pros has been met. The Plaintiff has shown a want of due diligence in failing to proceed with reasonable promptitude, there has been no compelling reason for the delay, and prejudice is to be presumed from the more than two-year period of docket inactivity.6 For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 16th day of March, 1998, upon consideration of Defendants' Petition for Judgment of Non Pros, and for the reasons stated in the accompanying opinion, Defendants' petition is granted and Plaintiff's complaint is dismissed. BY THE COURT, Richard Delai #BU- 1813 P.O. Box 200 Camp Hill, PA 17001-0200 Plaintiff, Pro Se Steven C. Gould, Esq. Deputy Attorney General Office of Attorney General --Torts 15/thFloor-- Strawberry Square Harrisburg, PA 17120 /s/J. Wesley Oler, Jr. J. 6 In this regard, the court does not believe that a letter to a judge reiterating a request for appointment of free counsel in a civil case of this type, even were it to have been sent during the two-year period of docket inactivity, would represent the type of substantive action necessary to avoid the application of Penn Piping. 4