The URL can be used to link to this page

Home My WebLink About94-5314 CivilDARRYL BURGESS Plaintiff, Ve PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOSEPH LEHMAN, JEFFREY A. BEARD, KENNETH A. KYLER, CARL HAMBERGER and KATHY MONTAG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-5314 CIVIL TERM IN RE: DEFENDANTS' PETITION FOR JUDGMENT OF NON PROS BEFORE OLER, J. ORDER OF COURT AND NOW, this I~~ day of June, 1997, upon consideration of Defendants' petition for judgment of non pros and Plaintiff's answer to Defendants' petition for judgment of non pros, and for the reasons stated in the accompanying opinion, the petition is GRANTED, and Plaintiff's complaint is DISMISSED. Darryl Burgess #AF-7740 State Correctional Institution P.O. Box 200 Camp Hill, PA 17001-0200 Plaintiff, Pro Se BY THE COURT, Daniel R. Goodemote, Esq. Senior Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Attorney for Defendants : rc DARRYL BURGESS Plaintiff, Ve PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOSEPH LEHMAN, JEFFREY A. BEARD, KENNETH A. KYLER, CARL HAMBERGER and KATHY MONTAG, D~fendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-5314 CIVIL TERM IN RE: DEFENDANTS' PETITION FOR JUDGMENT OF NON PROS BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., Junel~, 1997 In this civil case, Plaintiff, an inmate at the State Correctional Institution at Camp Hill, alleges that he was injured while moving a chair under the direction of prison authorities. Plaintiff asserts that Defendants, the Pennsylvania Department of Corrections, Joseph Lehman, Jeffrey A. Beard, Kenneth Kyler, Carl Hamberger, and Kathy Montag, were negligent in failing to instruct him on how to move heavy objects, failing to provide proper equipment to move heavy objects, and failing to provide proper medical care to Plaintiff after he was allegedly injured. Presently before the court is Defendants' petition for judgment of non pros due to lack of docket activity. For the reasons stated in this opinion, Defendants' petition will be granted. STATEMENT OF FACTS The following facts are averred in Plaintiff's answer to Defendants' petition for judgment of non pros:~ Plaintiff, Darryl See Pa. R.C.P. 206.7(c). NO. 94-5314 CIVIL TERM Burgess, is an inmate at the State Correctional Institution at Camp Hill, Cumberland County, Pennsylvania.2 On September 28, 1992, Plaintiff was directed by prison authorities to assist two other inmates in moving a barber's chair down a flight of stairs.3 The Chair came apart while Plaintiff was moving it, spilling oil onto the stairway.4 Plaintiff slipped on the oil, lost his grip on the chair, and was injured when the barber's chair landed on top of him.5 Plaintiff brought civil suit against Defendants, the Pennsylvania Department of Corrections and five Department of Corrections officials or employees, seeking damages for injuries allegedly caused by his fall. Plaintiff is proceeding pro se in this action. Plaintiff avers additionally in his answer to the petition as follows: Sometime after March 2, 1995, Plaintiff contacted a certain law firm regarding the possibility of hiring the firm to represent him in this matter.6 In a letter dated November 1, 1995, the firm indicated that it would be willing to represent Plaintiff 2 Plaintiff's Answer to Defendants' Petition for Judgment of Non Pros (hereinafter Plaintiff's Answer), paragraph 2. Id. Id. Id. Plaintiff's Answer, paragraphs 7-8. 2 NO. 94-5314 CIVIL TERM and requested that he sign a contingency fee agreement and authorize the release of his medical records to it.7 Plaintiff signed a contingency fee agreement on November 6, 1995, and provided the firm with a letter of authorization for the release of his medical records.8 On March 26, 1997, Plaintiff received a letter from the firm releasing him from the contingency fee agreement.9 The firm never entered an appearance as Plaintiff's counsel in this matter. Nevertheless, Plaintiff avers that, during the period from November 6, 1995 until March 26, 1997, he believed that the firm was actively representing him in the case.~° PROCEDURAL HISTORY The relevant docket activity which occurred in this case is as follows: Plaintiff commenced the action by filing a complaint on September 19, 1994; Defendants filed an answer with new matter on October 26, 1994; Plaintiff filed a reply to the new matter on -December 19, 1994. An amended complaint was filed on January 27, 1995. Defendants filed an answer with new matter on February 13, 1995. Plaintiff's reply to new matter, filed March 2, 1995, was the last docket activity recorded in this case until March 27, Plaintiff's Answer, paragraphs 7-8, Exhibits B-C. Plaintiff's Answer, paragraphs 7-8, Exhibits A-B. Plaintiff's Answer, Exhibit C. Plaintiff's Answer, paragraphs 9-10. NO. 94-5314 CIVIL TERM 1997, when Defendants filed the instant petition for judgment of non pros, based upon a two-year period of docket inactivity. On April 1, 1997, pursuant to Pennsylvania Rule of Civil Procedure 206.7, this court issued a rule upon Plaintiff to show cause why the relief requested should not be granted; the rule provided a schedule for Plaintiff's filing of an answer to the petition, for the completion of depositions, and for the submission of briefs, upon which the issue would be decided. Plaintiff filed his answer to the petition on May 1, 1997. Both sides have submitted briefs. No depositions have been filed. DISCUSSION Pennsylvania Rule of Civil Procedure 206.7 provides the procedure for disposition of a petition after a rule to show cause has been issued. Rule 206.7 provides that, "if an answer raises disputed issues of material fact ... [and the petitioner does not take depositions,] the petition shall be decided on petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted." Pa. R.C.P. 206.7(c). The decision to enter a judgment of non pros for lack of docket activity 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). The Pennsylvania Supreme Court has established a three-prong test which indicates the NO. 94-5314 CIVIL TERM circumstances under which this type of judgment of non pros may be entered. Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992). Under the Penn Piping test, a judgment of non pros is proper when: (1) a party has displayed a lack of due diligence; (2) there is no compelling reason for the delay; and (3) the delay has caused prejudice to the adverse party. Id. at 354, 603 A.2d at 1008. 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. at 356, 603 A.2d at 1008. It is left to the discretion of the court, on a case-by-case basis, to determine whether an explanation for delay is compelling. Id. at 356 n.2, 603 A.2d at 1009 n.2. The Pennsylvania Supreme Court has indicated that "[e]xamples of situations in which there will be a per se determination that there is a compelling reason for delay ... are cases where the delaying party establishes that the delay was caused by bankruptcy, liquidation, or other operation of law, or in cases awaiting significant developments in the law." Id. It has been noted that the "compelling reasons for delay as described by the Supreme Court all involve situations where events beyond the plaintiff's control impede progress." County of Erie v. Peerless Heater Co., 660 A.'2d 238, 241 (Pa. Commw. 1995). Events 5 NO. 94-5314 CIVIL TERM which are not beyond a plaintiff's control are not compelling reasons for delay, because a plaintiff has a "duty to move the case forward and to monitor the docket to reflect that movement." State of the Art Medical Products, Inc. v. Aries Medical, Inc., Pa. Super. , , 689 A.2d 957, 960 (1997). In the present case, there has been a two-year period of docket inactivity from March 2, 1995 to March 27, 1997. Thus, prejudice will be presumed and Plaintiff is obliged to show a compelling reason for this delay. Plaintiff avers that, during the period from November 6, 1995 to March 26, 1995, he believed that he was being represented by a law firm and that the firm was moving his case forward. Plaintiff maintains that the fact that he was unaware that the law firm did not enter an appearance in his case and was not moving his case forward constitutes a compelling reason for the two-year delay. According to Plaintiff, it was the law firm rather than he that caused the delay. Plaintiff contends, therefore, that it would be unfair to penalize him for the two years of inactivity which occurred in this case. Plaintiff's argument, however, is not supported by case law. The Pennsylvania Superior Court has declined to conclude that the fact that a party was unaware that the party's counsel was not moving the case forward constituted a compelling reason for delay. Aimee's Touch, Inc. v. Kramer, 441 Pa. Super. 415, 418, 657 A.2d 992, 993-94 (1995). In this regard, the inaction of a plaintiff's 6 NO. 94-5314 CIVIL TERM attorney is not the type of situation which is considered to be beyond the party's control and, thus, is not considered a compelling reason for delay. In our view, the present case, in which Plaintiff is seeking to excuse a period of inactivity on the ground that he was unaware that a certain law firm was not representing him and moving his case forward, presents a similar situation governed by the same principle. Thus, even if Plaintiff's allegations in his answer to the petition are true, it can not be said that a compelling reason for the delay has been shown. The court concludes that Plaintiff has displayed a lack of due diligence in not monitoring the activity undertaken in his case or moving it forward for a period of two years. There is no compelling reason for this delay. Moreover, since the delay lasted for a period of two years, prejudice is presumed. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 16th day of June, 1997, upon consideration of Defendants' petition for judgment of non pros and Plaintiff's answer to Defendants' petition for judgment of non pros, and for the reasons stated in the accompanying opinion, the petition is NO. 94-5314 CIVIL TERM GRANTED, and Plaintiff's complaint is DISMISSED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Darryl Burgess #Af-7740 State Correctional Institution P.O. Box 200 Camp Hill, PA 17001-0200 Plaintiff, Pro Se Daniel R. Goodemote, Esq. Senior Deputy Attorney General Commonwealth of Pennsylvania Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Attorney for Defendants 8