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Home My WebLink About93-1237 CivilROBERT C. KOZAK, Plaintiff Ve LOBAR, INC., and FIDELITY & DEPOSIT CO. OF MARYLAND, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 93-1237 CIVIL TERM IN RE: DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE BEFORE HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this~day of October, 1996, upon consideration of Defendants' motion to dismiss for failure to prosecute, and for the reasons stated in the accompanying opinion, the motion is DENIED. Eugene R. Campbell, Esquire First Floor 11 East Market Street York, PA 17401 Attorney for Plaintiff BY THE COURT, Harry R. Harmon, Esquire John H. Frymyer, Jr., Esquire Harmon & Davies, P.C. 2306 Columbia Avenue Lancaster, PA 17603 Attorneys for Defendants :mi ROBERT C. KOZD~K, Plaintiff V® LOBAR, INC., and FIDELITY : & DEPOSIT C0. OF : MARYLAND, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 93-1237 CIVIL TERM IN RE: DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE BEFORE HOFFER and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This case involves a breach of contract claim arising from excavation work allegedly performed by Plaintiff, Robert C. Kozak, while serving as a subcontractor for Defendant Lobar, Inc. Defendant Fidelity & Deposit Co. of Maryland allegedly served as surety for Defendant Lobar, Inc. Presently before the court is Defendants' motion to dismiss the complaint for failure to prosecute. For the reasons stated in this opinion, Defendants' motion will be denied. STATEMENT OF FACTS; PROCEDURAL HISTORY The following facts are alleged in Plaintiff's Complaint: Plaintiff, Robert C. Kozak, is a building and excavating contractor with offices located at 140 Sachs Road, Gettysburg, Adams County, Pennsylvania.~ Defendant, Lobar, Inc. (hereinafter Defendant Lobar), is a Pennsylvania corporation with offices located at One Old Mill Road, Dillsburg, York County, Pennsylvania.2 Defendant ~ Plaintiff's Complaint, paragraph 1. 2 Plaintiff's Complaint, paragraph 2. NO. 93-1237 CIVIL TERM Fidelity & Deposit Co. of Maryland (hereinafter Defendant Fidelity) is a corporation with its principal place of business in Pennsylvania located at Suite 201, 200 Berwyn Parks, Berwyn, Chester County, Pennsylvania.3 A public works contract was let by the Cumberland County Housing Authority to Defendant Lobar on September 12, 1991.4 Under the contract, Defendant Lobar was to perform general construction work for a project known as Two West Penn Street; this project involved construction of 50 Units of Elderly Housing in Carlisle, Cumberland County, Pennsylvania.5 Defendant Fidelity served as surety for Defendant Lobar on the project.6 Defendant Lobar engaged Plaintiff as a subcontractor to perform work on the project for $105,879.80.7 Defendant Lobar terminated the contract with Plaintiff on October 7, 1992.8 At the time of termination, Defendant Lobar had paid Plaintiff a total of $93,771.72.9 Plaintiff's Complaint, paragraph 3. Plaintiff's Complaint, paragraph 6. Id. Plaintiff's Complaint, paragraph 7. Plaintiff's Complaint, paragraphs 8-9; Exhibit B. Plaintiff's Complaint, paragraph 17. Plaintiff's Complaint, paragraph 19. 2 NO. 93-1237 CIVIL TERM Oh April 16, 1993, Plaintiff commenced the current action by filing a complaint, claiming that Defendant Lobar had breached its contract with Plaintiff (a) by failing to make payment in accordance with the provisions of the contract (b) by requiring Plaintiff to perform work beyond the scope of the contract and/or in a manner that was not anticipated, and (c) by terminating the contract without just cause.~° Plaintiff seeks damages in the amount of $30,951.69, plus costs and interest.~ Preliminary objections were filed by Defendants Lobar and Fidelity on May 17, 1993. Defendants requested a more specific pleading or, in the alternative, a striking of Plaintiff's complaint for failure to conform to Pennsylvania Rule of Civil Procedure 1019~h). Defendants' preliminary objections were denied by order of court dated August 2, 1993 (Hoffer, J.). Plaintiff's Complaint, paragraphs 18-21. ~ Plaintiff alleges that the contract was terminated without proper cause, and that Plaintiff is therefore entitled to $12,772.39, representing the unpaid balance on the contract. Plaintiff's Complaint, paragraphs 18-21. In addition, Plaintiff alleges that unreimbursed costs of $13,657.80 were incurred due to unforeseen conditions encountered while performing the contract and unexpected changes made by Defendant Lobar in the construction plans and schedules. Plaintiff's Complaint, paragraphs 12-15. Plaintiff further alleges that he was required to perform work which went beyond the scope of the contract, at an additional cost of $4,521.50. Plaintiff's Complaint, paragraph 16. In reciting the facts alleged by Plaintiff, the court does not, of course, express an opinion as to their accuracy. 3 NO. 93-1237 CIVIL TERM An answer to the complaint, with new matter and a counterclaim, was filed on August 20, 1993. It alleged, inter alia, that Plaintiff had failed to perform his work in accordance with the requirements of the contract,~2 and that Defendant Lobar was entitled to damages from Plaintiff in the amount of $11,963.43, plus costs, interest, and attorney's fees. Plaintiff filed a reply to the new matter and counterclaim on September 13, 1993. It appears that shortly thereafter, on October 28, 1993, Plaintiff filed for bankruptcy.~3 Plaintiff's original counsel, Reager & Adler, P.C., and Theodore A. Adler, Esquire, filed a motion to withdraw from the case on March 9, 1994. Plaintiff's counsel was granted leave to withdraw by order of court dated April 4, 1994 (Hoffer, J.). As Plaintiff was a debtor in a bankruptcy, it appears that Plaintiff was required to obtain permission from the bankruptcy court for new ~2 Defendants' Answer with New Matter and Counterclaim to Plaintiff's Complaint paragraph 50. Defendant Lobar alleges that it was required to pay an out-of-pocket expense of $3,100.26 to complete Plaintiff's unfinished work. Id. In addition, Defendant Lobar claims that, as a result of Plaintiff's alleged failure to perform his work in accordance with project schedules, Defendant Lobar incurred $8,963.17 in additional overhead costs. Id., paragraphs 52-53. See Motion To Withdraw as Counsel, paragraph 3. NO. 93-1237 CIVIL TERM counsel to represent him.TM Plaintiff's present counsel entered his appearance on May 17, 1996.~s The order of court dated April 4, 1994, granting Plaintiff's original counsel leave to withdraw, was the last recorded docket activity in this case, until May 7, 1996. On that date, Defendants filed the motion to dismiss for failure to prosecute which is presently under consideration. Defendants assert that "Plaintiff has failed to show proper diligence and has failed to proceed with reasonable promptitude."~6 Plaintiff responds that the ~delay in pursuing his claim was caused by a delay in the transfer of files from his original counsel to his current counsel and by his bankruptcy proceeding.~? DISCUSSION In Pennsylvania, the decision to enter a judgment of non pros is clearly within the discretion of the court. Penn Piping, Inc. ~4 Plaintiff's Response to [Defendants'] Motion To Dismiss for Failure To Prosecute, paragraph 10; see Plaintiff's Response to [Defendants'] Motion To Dismiss for Failure To Prosecute, Exhibits C ("Motion To Approve Contingent Fee Agreement and Employment of Attorney") and D (Order of the United States Bankruptcy Court for the Middle District of Pennsylvania, dated March 29, 1995). ~s Praecipe for Entry of Appearance, filed May 17, 1996. ~6 Defendants' Motion To Dismiss for Failure To Prosecute, paragraph 6. ~7 Plaintiff's Response to [Defendants'] Motion To Dismiss for Failure To Prosecute, paragraphs 8-10. 5 NO. 93-1237 CIVIL TERM v. Insurance Co. of North America, 529 Pa. 350, 354, 603 A.2d 1006, 1008 (1992). A judgment of non pros may be entered when: (1) a party has displayed a lack of due diligence in failing to proceed with reasonable promptitude, (2) there is no compelling reason for the delay, and (3) the delay has caused prejudice to the adverse party. Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 356, 603 A.2d 1006, 1009 (1992). 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. Generally, it is left to the discretion of the court to determine whether an explanation for delay is compelling or not. County of Erie v. Peerless Heater Co., Pa. Commw. __, , 660 A.2d 238, 241 (1995). However, "where the delay was caused by bankruptcy ... there will be an automatic determination that a compelling reason for the delay has occurred." Dorich v. DiBacco, 440 Pa. Super. 581, 586, 656 A.2d 522, 524 (1995), citing Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 356 n.2, 603 A.2d 1006, 1009 n.2 (1992). A plaintiff, however, cannot simply assert that he or she was in bankruptcy during the time at issue; instead, bankruptcy must be implicated in the delay in the 6 NO. 93-1237 CIVIL TERM case. Mackintosh-Hemphill v. Gulf & Western, 679 A.2d 1275 (1996). In the present case, there has been Pa. Super. , a period of docket inactivity from April 4, 1994, when Plaintiff's original counsel was given leave to withdraw, until May 7, 1996, when Defendants filed the motion presently before the court. The period of docket inactivity, thus, has exceeded, by about one month, the two-year period necessary to establish presumed prejudice. Nevertheless, the record tends to show further that there was an explanation for Plaintiff's delay in the form of bankruptcy, the necessity for bankruptcy court approval of new counsel, and the transfer of responsibility for the case to new counsel. Under these circumstances, the court is not at this time willing, in the exercise of its discretion, to dismiss Plaintiff's complaint for lack of docket activity.~8 ORDER OF COURT AND NOW, this~ day of October, 1996, upon consideration of Defendants' motion to dismiss for failure to prosecute, and for the ~8 Defendants argue that docket activity involving a counsel's motion to withdraw can not be considered substantive in nature and therefore can not constitute activity for purposes of a motion to .dismiss for failure to prosecute. Nevertheless, even if the last docket activity is deemed to have occurred when Plaintiff's reply to new matter and counterclaim was filed on September 13, 1993, one month prior to Plaintiff's filing for bankruptcy, the conclusion that unexplained periods of docket inactivity do not exceed two years remains the same. 7 NO. 93-1237 CIVIL TERM reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Eugene R. Campbell, Esquire First Floor 11 East Market Street York, PA 17401 · Attorney for Plaintiff Harry R. Harmon, Esquire John H. Frymyer, Jr., Esquire Harmon & Davies, P.C. 2306 Columbia Avenue Lancaster, PA 17603 Attorneys for Defendants :ml 8