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HomeMy WebLinkAbout2005-4943 NED KERSTETTER and : IN THE COURT OF COMMON PLEAS OF THE COMPUTER BARN, INC., : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : ROGER HOOPER AND : RANDY HOWARD, : DEFENDANTS : 05-4943 CIVIL TERM MEMORANDUM OPINION AND ORDER OF COURT Masland, J., July 13, 2011:-- Before the court is Plaintiffs’ petition to reinstate a terminated case that was filed on February 25, 2011. Although the court issued an order on March 26, 2011, reinstating that case, the order was vacated after receiving a motion for reconsideration from Defendants. A hearing was held on the petition on June 17, 2011. At that hearing, testimony was received from David B. Buell, the Prothonotary for Cumberland County, counsel for the Plaintiffs, the Plaintiffs and the Defendants. For the following reasons, we grant Plaintiffs’ petition and reinstate this case. Initially, we note that the Rules of Civil Procedure in general and Pa.R.C.P No. 230.2 in particular disfavor termination of otherwise viable cases based on mere lack of docket activity. See Kane v. Vigunas, 967 A.2d 987, 990 (Pa. Super. Ct. 2009). The testimony adduced at the hearing clearly demonstrated that Plaintiffs have a viable case, which barring termination, should proceed. Secondly, Plaintiff’s counsel testified to and argued convincingly that Plaintiffs did not proceed with the case after Defendants filed their answer on 05-4943 CIVIL TERM October 11, 2005 because they chose instead to allow a separate but related criminal proceeding to unfold. Such a course of action is eminently reasonable, especially in light of the Plaintiffs’ loss of substantial funds, which resulted in the criminal charges against Defendant Hooper. In short, Plaintiffs were not in a financial position to proceed with the civil case. Thirdly, Rule 230.2(3) states: “[i]f the petition is filed more than thirty days after the entry of the order of termination on the docket, the court shall grant the petition and reinstate the action upon a showing that the petition was timely filed following the entry of the order for termination.” Pa. R. C. P. 230.2(3)(i). Here, the petition was not filed within the thirty-day time period after the order of termination was entered. While both Mr. Hooper and Mr. Howard testified to receiving the intent to purge, there is no indication that any of the parties or their counsel received the order terminating the case. Although the petition to reinstate was not filed within the thirty-day time period, it was filed promptly after Plaintiffs and their counsel first became aware of the termination order. Rule 230.2(3) also allows reinstatement of a case where the petition was not timely filed where “there is a reasonable explanation or a legitimate excuse for the failure to file both (A) the statement of intention to proceed prior to the entry of the order of termination on the docket and, (B) the petition to reinstate the action within thirty days after the entry of the order of termination on the docket”. Pa. R. C. P. 230.2(3)(ii). Here, the fact that neither the Plaintiff nor -2- 05-4943 CIVIL TERM counsel received the order terminating the case serves as a “legitimate excuse for the failure to file.” Further, nothing exists on the record to indicate that the termination notice was ever served on Plaintiffs. Finally, the immediate action by Plaintiffs in petitioning to reinstate after receiving actual notice of the termination not only demonstrates the likelihood that neither he nor his counsel received the termination order, but also strengthens the fact that if they had received such notice they would have promptly filed the statement of intention to proceed. See Regrut v. Sheraton Inn-Shenango, 10 Pa. D. & C. 4th 58, 64 (1990). Although not raised by the Defendants, the court notes the decision of our sister county, Berks, in Panosian v. Hampton, 76 Pa.D.&C.4th 410 (2005). In Panosian, plaintiff’s case was terminated after two years of non-activity. Id. at 412. Plaintiff petitioned to reinstate the case claiming that notice of intent to purge was never received. Id. at 413. Although the plaintiff claims to never have received notice, the Prothonotary presented evidence that notice was sent to all counsel and parties by ordinary mail. Id. The court denied plaintiff’s petition to reinstate finding that proper service of the notice was documented. Id. at 414. Furthermore, the court denied reinstatement finding that to allow it would unfairly prejudice the defendant who would be ask to reconvene more than twenty-three months after the claim has been dismissed. Id. at 416. The court finds the present case to be distinguishable from our sister court’s decision in Panosian. In Panosian there was evidence that both the -3- 05-4943 CIVIL TERM notice of intent to purge and the notice of actual termination was sent by ordinary mail and thus properly served on all parties. Here, the record indicates that notice of intent to purge was never sent to Defendants’ counsel, raising the possibility that it was never sent to Plaintiffs or Plaintiffs’ counsel either. Furthermore, there is no record in the Prothonotary’s office of mailing the actual termination order to any of the parties or counsel involved. In addition, the main concern of denying plaintiff’s petition to reinstate in Panosian was to prevent the unfairness to defendants of having to reconvene after the case was put to rest. Here, the case was never put to rest. After the Defendants’ answer was filed, the District Attorney’s Office began an investigation that culminated in criminal charges filed on May 22, 2008. As noted at the hearing, Defendant Hooper was sentenced on these charges on January 4, 2011. As such, the underlying matter was never truly closed and to allowed reinstatement of the instant case is clearly proper. Finally, although prejudice is not an element of Pa.R.C.P. No. 2302, our action reinstating this matter causes no prejudice to Defendants. In conclusion, we find that Plaintiffs filed his petition promptly upon discovery of the order terminating the case. Further, Plaintiffs provided a reasonable explanation for the failure to file a statement of intention to proceed and a petition to reinstate the action within 30 days of the order terminating the case. Accordingly, we enter the following order. -4- 05-4943 CIVIL TERM ORDER OF COURT AND NOW, this ___________ day of July, 2011, upon consideration of Plaintiffs’ petition to reinstate a terminated case, the Defendants’ response thereto and the evidence presented at a hearing on this matter held on June 17, REOPENED 2011, this case is . By the Court, _________________________ Albert H. Masland, J. David A. Fitzsimons, Esquire For Plaintiffs Joseph J. Dixon, Esquire For Defendants :saa -5- NED KERSTETTER and : IN THE COURT OF COMMON PLEAS OF THE COMPUTER BARN, INC., : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : ROGER HOOPER AND : RANDY HOWARD, : DEFENDANTS : 05-4943 CIVIL TERM ORDER OF COURT AND NOW, this ___________ day of July, 2011, upon consideration of Plaintiffs’ petition to reinstate a terminated case, the Defendants’ response thereto and the evidence presented at a hearing on this matter held on June 17, REOPENED 2011, this case is . By the Court, _________________________ Albert H. Masland, J. David A. Fitzsimons, Esquire For Plaintiffs Joseph J. Dixon, Esquire For Defendants :saa