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HomeMy WebLinkAbout96-5641 CivilROBERT BEAUDRY, Plaintiff ROSE STONER, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 96-5641 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR JUDGMENT OF NON PROS HOFFER, P.J.: OPINION History of the Case The plaintiff, Dr. Robert J. Beaudry, Jr., commenced this action on October 14, 1996, by filing a Praecipe for Writ of Summons. This Writ of Summons was issued and then served on defendant, Rose Stoner, on October 21, 1996, and service was docketed on November 4, 1996. activity occurred in the case until October For a period of three (3) years, no 18, 1999, when plaintiff filed an objection to the purge of the case and a Complaint.1 The Complaint contains two (2) counts alleging defamation and invasion of privacy. Plaintiff contends that on various occasions in February, March, and April of 1996, and perhaps on other dates, defendant made the following statements about plaintiff: 1. That plaintiff had been convicted or "found guilty" of twenty-eight (28) counts of "embezzlement" from his present or past employer. 1 A copy of the Complaint was left at defendant's Florida residence on May 6, 2000. This copy did not have a Notice to Plead attached to it as required by Rule 1026 of the Pennsylvania Rules of Civil Procedure. 2. That plaintiff was having an improper sexual and romantic affair with one of his assistance [sic] and that such improper affair had continued for "a long time." 3. That plaintiff had physically assaulted a pregnant female when he was in a "rage" and was in the process of being criminally prosecuted for that assault.2 Allegedly, these events occurred when plaintiff was a principle in Miller Oral Surgery, Inc. and defendant was an employee of the corporation. At a hearing, in front of this Court, on August 7, 2000, Rose Stoner testified that she was a receptionist for Miller Oral Surgery, Inc. and worked in this capacity from the Fall of 1995 through February 1999. In February 1999, she gave the company her resignation. Defendant testified that she wanted to leave Pennsylvania because of an abusive marriage situation, where her husband had physically abused her. Prior to moving, she left a forwarding Post Office Box number in Orlando, Florida with the United States Post Office. Defendant subsequently found employment in Orlando, where she works as a house mother at a home for distressed children known as the "House of Hope." She earns a net salary, after taxes, of approximately $590.00 every other week. Additionally, there is an extensive history of litigation involving Miller Oral Surgery, Inc. and the two principles therein, plaintiff and Dr. Michael T. Reedy, in 2 See Plaintiff's Complaint, filed October 18, 1999. 2 the Court of Common Pleas of Dauphin County and in the Court of Common Pleas of Cumberland County.3 With respect to the issue of non pros in this case, defendant must meet the standard set forth in James Brothers Co. v. Union Bankinq and Trust Co. of DuBois and consistently reiterated and applied in subsequent cases. 432 Pa. 129, 247 A.2d 587 (1968); see also Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998). The Standard for Non Pros A motion for a judgment of non pros is the channel by which a litigant asserts his or her common law right to a reasonably prompt conclusion to a case. Courts have found that a motion for non pros rests on public policy which implicates both the plaintiff and the defendant. If a case is dismissed due to the negligence of counsel, the plaintiff is left without a meaningful remedy. Conversely, a defendant may have problems defending a case where an inordinate amount of time has passed. Penn Piping, Inc. v. Insurance Co. of 3 See Motion of the defendant, Rose Stoner, for Judgment of Non Pros, exhibits E through I. These exhibits contain an Order of the Court of Common Pleas of Cumberland County; Beaudry v. Miller Oral Surqery, Inc., docketed at4230-S- 1993 in the Court of Common Pleas of Dauphin County; In Re: Miller Oral Surgery, Inc., docketed at 5233 EQUITY in the Court of Common Pleas of Dauphin County; In Re: Application for Removal of Robert J. Beaudry, Jr., D.M.D., from the Office of Director of Miller Oral Surgery, Inc., docketed at 3968 S 1993 in the Court of Common Pleas of Dauphin County; and Beaudry v. Reedy, 113 Dauph. 1 (1993). North America, 529 Pa. 350, 354, 603 A.2d 1006, 1008 (1992) (overruled on other grounds). To dismiss a case for inactivity following a defendant's motion for non pros, a three (3) prong test must be satisfied. According to James Brothers Co. and Jacobs, the test states that there must be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude, the plaintiff must have no compelling reason for the delay, and the delay must cause actual prejudice to the defendant. James Brothers Co, 432 Pa. 129, 247 A.2d 587 (1968); Jacobs, 551 Pa. 350, 710 A.2d 1098 (1998).'~ Diligence Element According to Pennsylvania law, it is the plaintiff and not the defendant who bears the risk of failing to act within a reasonable time to move a case along. Pennridqe Electric v. Souderton School, 419 Pa. Super. 201, 209, 615 A.2d 95, 99 (1992). The law does not state with precision how long a delay by the plaintiff in proceeding with litigation amounts to the absence of due diligence. Manson v. First National Bank, 366 Pa. 211, 77 A.2d 399 (1951). However, a delay as long '~ Jacobs is the leading case regarding the standard that must be met to show non pros. The standard, as originally stated in James Bros. Co. was modified in 1992 in Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992), when the Court held that the the element of prejudice could be presumed when there had been a delay of activity by the plaintiff for over two years. Id. at 1009. However, the Court in Jacobs overruled this presumption of prejudice, and reenacted the James Bros. Co. test as the applicable standard, requiring a case by case showing of prejudice to the defendant. Jacobs, 551 Pa 350, 356, 710 A.2d 1098, 1101 (1998). 4 or longer than the applicable period of limitations is generally considered sufficient to warrant a judgment of non pros if the other prongs of the test are met. Kennedy v. Bulletin Co., 237 Pa. Super. 66, 346 A.2d 343, 345 (1975) (where a delay of five and one-half years in bringing a tort action justified a judgment of non pros). It is clear that plaintiff has shown a lack of due diligence by failing to proceed with reasonable promptitude. On March 1, 1996, Judge Clark in Dauphin County entered a consent decree aimed at sorting out and resolving the numerous matters raised involving Dr. Reedy, plaintiff, and Miller Oral Surgery, Inc. Pursuant to the terms of this consent decree, in April of 1996, plaintiff initiated a proceeding in Dauphin County seeking injunctive relief based on the allegation that defendant defamed him. Ultimately, it was agreed between the parties that these grievances would be treated as reserve claims under Judge Clark's previously entered consent decree. Correspondence was exchanged among the parties and abruptly ended in August 1996. From August 1996 until October 18, 1999, this reserve claim had not been raised nor pursued. During this time, plaintiff had the ability to resolve the issues in front of Judge Clark in Dauphin County and failed to do so. Each case must be examined on its merits and non-docket activity may be considered when deciding whether the case should be terminated for inactivity. Marino v. Hackman, 551 Pa. 369, 371, 710 A.2d 1108, 1109 (1998). However, due diligence and precluding the entry of non pros requires more than merely filing a certificate of active status and paying the nominal filing fee. Hughes v. Fink, Fink and Associates, 718 A.2d 316, 319 (Pa. Super. 1998). In the present case, this is essentially what plaintiff did when filing the Objection to Purge Case on October 18, 1999. Plaintiff has been given several opportunities to pursue this claim; however, he has not taken advantage of these opportunities and has allowed the docket to become inactive. Plaintiff's lack of due diligence is clearly represented in the lack of docket activity in this case.5 Reason for the Delay Element The question of granting non pros due to the failure of the plaintiff to prosecute his or her action within a reasonable time rests within the discretion of the trial court. Galla.qher v. Jewish Hospital Association, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). See also, Carroll v. Kimmel, 362 Pa. Super. 432, 524 A.2d 954 (1987) (holding that the trial court did not abuse its discretion in granting an entry of non pros). In determining what constitutes a compelling reason for delay, a trial court should focus on whether the events that allegedly impeded 5 In a recent decision, the Pennsylvania Supreme Court held that a plaintiff did show due diligence when the plaintiff filed a Notice of Appeal from an arbitrator's non-binding decision. Romstead v. Elf Atochem North America, Inc. 777 A.2d 1160 (Pa. Super. 2001). The Court held that in jurisdictions where the court automatically lists cases for trial, neither party has any responsibility to take additional action to bring the case to trial, and that the delay in activity is in actuality, the fault of the Court. Id. at 1162-1163. This is different from the present case, because in this case, the plaintiff failed to further pursue the action by serving the defendant with a complaint until October of 1999, more than three (3) years after the Writ of Summons was issued. Thus, the delay was brought on by the plaintiff, for the Court was never in control of the progress of the case. progress were beyond the plaintiff's control. Chase v. National Fuel Gas Corp., 692 A.2d 155, 156 (Pa. Super. 1997) (overruled on other grounds) (citing MacKintosh-Hemphill International Inc. v. Gulf & Western Inc., 451 Pa. Super. 385, 394-396, 679 A.2d 1275, 1280 (1996), appeal denied, 548 Pa. 637, 694 A.2d 622 (1997)). In the case subjudice, the only reason plaintiff gives is as follows: "Plaintiff has not proceeded with the case earlier because he was involved in litigation with the Defendant's employer which he hopes [sic] would resolve the issues raised in this case. The litigation between Plaintiff and Defendant's employer, Miller Oral Surgery, Inc., has not yet been resolved but it is now clear that litigation will not resolve or determine the claims between Plaintiff and Defendant.''6 This statement is inaccurate because defendant had left the employ of Miller Oral Surgery, Inc. several months prior to the plaintiff's Objection to Purge Case being filed. Moreover, [at the hearing of August 7, 2002] the testimony of Andrew H. Cline, Esquire, as well as defendant's exhibits admitted into the record, reflect that plaintiff had the ability to proceed with the case, and did not. And although the courts have stated that significant non-docket activity might be enough to show a compelling reason for delay, plaintiff in this case did not have a sufficient amount of non-docket activity to justify such an inactive docket.7 See Plaintiff's Objection to Purge Case, filed October 18, 1999. 7 "According to Marino, the combination of activities and circumstances may justify a delay in docket inactivity, though an activity or circumstance alone would be insufficient to salvage a case from dismissal for non pros. In Marino, there was significant non-docket activity: the death of the appellants' first attorney; '7 We conclude that plaintiff lacked due diligence in failing to proceed with reasonable promptitude and that no compelling reason existed for the delay. We must next determine whether defendant was prejudiced by events which occurred during the delay in prosecuting the case. Prejudice Element Prejudice can be established by the death or absence of a material witness. Jacobs, 551 Pa. 350, 359, 710 A.2d 1098, 1103 (1998). Prejudice also includes any substantial diminution of a party's ability to properly present its case at trial brought about by the plaintiff's delay. American Bank and Trust Co. of Pennsylvania v. Ritter, Todd and Haayen, 274 Pa. Super. 285, 289, 418 A.2d 408,410 (1980). It is well-settled that witnesses' memories can dim over time and cause prejudice to a defendant. Talbot v. Delaware Trust Co., 384 Pa. 85, 89, 119 A.2d 518 (1956), Jacobs, 551 Pa. at 357, 710 A.2d at 1102 (recognizing that defendants could also be prejudiced by the loss of memories, the disappearance of witnesses, and the loss or destruction of documents). In the present case, a review of the record depicts that memories were becoming dim at the time of the substitution of his partner; deposition of all the parties; replacement of the second attorney; delay in the release of the file; various letters soliciting and communicating a settlement demand; and a telephone discussion of certifying the case ready for trial." Gohel v. Montgomery Township, 40 Pa. D. & C.4th 449 (Pa. Comm. PI. 1999) (citing Marino v. Hackman, 551 Pa. at 375, 710 A.2d at 1110.) In the present case, plaintiff only cites to one non-docket activity, the pending litigation, which, even were it a legitimate non-docket activity, is not sufficient to show a compelling reason to delay. hearing in August 2000. It is evident that defendant has been prejudiced because her memory concerning events occurring in 1995 and 1996 has understandably dimmed due to the passage of time. See, e.g., American Bank and Trust Co. of Pennsylvania v. Ritter, Todd and Haayen, 274 Pa. Super. 285, 418 A.2d 408 (1980) (upholding entry of non pros on ground that memories of available witnesses were dimmed and perhaps extinct), Gohel v. Montgomery County, 40 Pa. D. & C.4th at 455 (holding that defendant's memory loss due to the appellant's delay goes to show actual prejudice to the defendant). Witnesses may be difficult or impossible to locate. We know that at least one witness, Jim Thomas, who was a former Miller Oral Surgery Office Manager, has disappeared and his whereabouts are unknown. See, e.g. Id. (holding that because defendant relied on more than just memory loss, including the unavailability or death of witnesses, there was actual prejudice to defendant), Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998) (affirming the trial court's finding that defendant was prejudiced by the death of a witness). Because this case is all about words, and the memory of the defendant and her ability to recall the alleged statements, memory loss is a significant issue and must hold great weight when looking to see if there is prejudice. Because such memory loss does exist, and because there are other circumstances that will cause prejudice to the defendant, such as an inability to locate or retrieve witnesses, defendant has shown actual prejudice.8 Conculsion The granting of non pros is based on the equitable principle of laches. See Jacobs, 551 Pa. 350, 710 A.2d 1098, (1998); see also James Brothers Co. v. Union Bankinq and Trust Co. of DuBois, 423 Pa. 129, 247 A.2d 587 (1968). Laches arises when a defendant's position or rights are so prejudiced by the length of time and inexcusable delay, plus attendant facts and circumstances, that an injustice would occur if a plaintiff was permitted to assert a claim against the defendant. See Bach's Estate, 426 Pa. 350, 359, 231 A.2d 125, 130 (1967), quoting, Grote Trust, 390 Pa. 261, 269-270, 135 A.2d 383, 387 (1957), (cited in Jacobs, 551 Pa. 350, 355, 710 A.2d 1098, 1102 (1998)). Such harm or prejudice to the adversary is the very basis upon which a claim of laches is founded. Jacobs, 551 Pa. 350, 357, 710 A.2d 1102 (1998). A party who seeks the relief provided by the entry of a judgment of non pros must do so with clean hands. 8 Defendant has also been prejudiced because she no longer has access to the financial resources to pursue the defense of this matter. Prior to her resignation at Miller Oral Surgery, Inc., the company had paid for her legal expenses. She is now separated from her husband, working at Iow wages for a charitable organization, and subsisting in Florida by liquidating her IRA's and borrowing money from her father who is a minister at a church in Chambersburg. Because of her income level, she cannot afford to travel to Pennsylvania from Florida to defend this lawsuit. She has started a new job in Florida and taking time off to participate in this litigation threatens her ability to hold that position. Furthermore, defendant is terrified to be in Pennsylvania because of her estranged husband's threats to kill her. ]0 Muddv. Nosker Lumber, Inc., 443 Pa. Super. 483, 662 A.2d 660 (1995) (cited in Jacobs, 551 Pa. 350, 358, 710 A.2d 1103 (1998). In the case sub judice, defendant has not given this Court any therefore able to seek non pros. indication of unclean hands, and is Because plaintiff has shown a lack of due diligence in failing to proceed with reasonable promptitude, with no compelling reason for the delay, and the delay has caused actual prejudice to defendant, this Court deems it necessary to dismiss this case. ROBERT BEAUDRY, Plaintiff ROSE STONER, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA :CIVIL ACTION - LAW :NO. 96-5641 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR JUDGMENT OF NON PROS ORDER OF THE COURT AND NOW, ,2002, upon careful consideration of defendant's Motion For Judgment of Non Pros and plaintiff's response thereto, it is hereby ordered that the Motion is granted. By the Court, George E. Hoffer, P.d. Samuel L. Andes, Esquire 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 James J. West, Esquire 105 North Front Street Suite 210 Harrisburg, PA 17101 ]2