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Home My WebLink About90-3357 CivilJAMES MATTHEW HOCKER, Plaintiff Im P.C.M. CONSTRUCTION, INC.; DAYS INN AIRPORT; HARRISBURG AIRPORT PARTNERSHIP, HEINZ MATHIS; and WINFORD-LINDSAY ASSOCIATES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3357 CIVIL 1990 IN RE: DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR LACK OF DOCKET ACTIVITY BEFORE SHEELY, P.J., and OLER J ORDER OF COURT AND NOW, this 16 day of April, 1993, after careful consideration of the Motion of Defendant Winford-Lindsay Associates, Inc., To Dismiss Plaintiffs Complaint for Lack of Docket Activity/Non Pros, the Motion is DENIED. BY THE COURT, /' -z' J. Wesley Oler J . J. Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Dennis J. Bonetti, Esq. 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendants P.C.M. Construction, Inc., and Harrisburg Airport Partnership Randy K. Hareza, Esq. BURNS, WHITE & HICKTON 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Attorney for Defendant Winford-Lindsay Associates, Inc. Days Inn Airport 1815 Eisenhower Boulevard Middletown, PA 17057 Heinz Mathis 422 Allegheny Street Hollidaysburg, PA 16648 :rc JAMES MATTHEW HOCKER, Plaintiff V. P.C.M. CONSTRUCTION, INC.; DAYS INN AIRPORT; HARRISBURG AIRPORT PARTNERSHIP, HEINZ MATHIS; and WINFORD-LINDSAY ASSOCIATES, INC., Defendants Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3357 CIVIL 1990 IN RE: DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR LACK OF DOCKET ACTIVITY BEFORE SHEELY, P.J., and OLER, J. OPINION AND ORDER OF COURT For disposition in this case is a motion filed on behalf of Defendant Windord- Lindsay Associates, Inc. (hereinafter Defendant) to dismiss Plaintiff's complaint for lack of docket activity. For the reasons stated in this Opinion, the motion will be denied. Factual Background. The docket and papers filed in the present case reveal the following procedural history. The action was commenced by a praecipe for a writ of summons on September 26, 1990. A sheriff's return was made on October 24, 1990, indicating service of the summons upon defendants by sheriffs in Blair, Dauphin and Cumberland Counties. On May 8, 1992, an appearance was entered on behalf of two defendants.' On December 21, 1992, a praecipe was filed on behalf of those defendants for a rule upon ' P.C.M. Construction, Inc., and Harrisburg Airport Partnership. No. 3357 Civil 1990 plaintiff to file a complaint, and the rule was issued on that date. On December 23, 1992, a certificate of service of the rule upon plaintiff was f:ded. On January 22, 1993, Plaintiffs complaint was filed. On February 11, 1993, preliminary objections raising questions of venue under Pa. R.C.P. 1028(a)(1), and containing a notice to plead, were filed on behalf of the defendants thus appearing. On the same date, these defendants listed the preliminary objections for argument. On February 18, 1993, Defendant (Winford-Lindsay Associates, Inc.) filed an "Answer, New Matter and New Matter Pursuant to Rule 2252(d)['] of Plaintiff's Complaint." On February 25, 1993, counsel for Defendant filed a praecipe for entry of his appearance. On March 1, 1993, Defendant filed a "Motion To Dismiss Plaintiffs Complaint for Lack of Docket Activity/Non Pros." This motion contained a Notice To Plead,3 but the motion was listed for argument by Defendant on the same day.' Argument was held on the motion on March 31, 1993. However, the moving party's brief was not filed until the date of argument. ' Pa. R.C.P. 2252(d) relates to cross-claims. 3 See Pa. R.C.P. 1026, 1361. 4 Another item on the docket at this time is a Praecipe To Substitute Verifications to Preliminary Objections of Defendant, P.C.M. Construction Company, Inc. and Defendant, Harrisburg Airport Partnership, to Plaintiff's Complaint, filed March 9, 1993. This item is not relevant for present purposes, because it postdates Defendant's motion. See also note 8 infra. 2 No. 3357 Civil 1990 Statement of law. "A Court may properly enter a judgment of non pros. when a party to the proceeding has shown a want of due diligence in failing 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 unexplained absence of material witnesses." James Brothers Lumber Co. v. Union Banking and Trust, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). A presumption of prejudice will arise "in cases involving a delay for a period of two years or more....i. "It is well settled law that the question of granting a non pros because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower Court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof." Gallagher v. Jewish Hospital Assn, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). Thus, in Penn Piping, Inc. v. INA, 529 Pa. 350, 603 A.2d 1006 (1992), the Pennsylvania Supreme Court upheld a trial court's dismissal of a six year old case for lack of activity on the docket, where there was an absence of due diligence in prosecut- 6 Penn Piping, Inc. v. INA, 529 Pa. 350, 356, 603 A.2d 1006, 1009 (1992). 3 No. 3357 Civil 1990 ing the case and there was no compelling reason for four years of the delay.' In Penn Piping, the moving party utilized a petition for a rule to show cause to create a record upon which the court could act.' "Judgment of non pros is a severe penalty and should not be lightly entered." Verbalis v. Verbalis, 286 Pa. Super. 209, 211, 428 A.2d 646, 647 (1981). Under Cumberland County Rule of Procedure 210-6, it is provided, in pertinent part, as follows: The party seeking [an] order shall furnish [an original and three copies of its brief] ... twelve days before the date set for argument.... If the party seeking the order has not filed a timely brief in accordance [with] the time limitations of this rule, the court may deny the relief sought on that basis alone. Application of law to facts. In the present case, several factors militate against the granting of Defendant's motion for dismissal of Plaintiffs complaint for lack of docket activity. First, a considerable amount of docket activity has occurred within the ' In Penn Piping, the effect, if any, of a local court's rule establishing a procedure for dismissal of inactive cases, adopted pursuant to Pa. R.J.A. 1901, was not in issue, because no such local rule was in effect. Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 353, 603 A.2d 1006, 1007 (1992). In the present case, such a local rule is in effect, and no dismissal has occurred pursuant thereto. See C.C.R.P. 228. In view of this Court's disposition of the instant motion in favor of Plaintiff, it is unnecessary to consider whether the absence of a dismissal under the local rule lends additional support to Plaintiffs position. ' Penn Piping, Inc. u. INA, 529 Pa. 350, 352, 603 A.2d 1006, 1007 (1992). 4 No. 3357 Civil 1990 two years prior to the filing of Defendant's motion, some quite recently. Second, there has not been a two-year period during the pendency of this case in which some docket entry has not been made. Third, although the Court can not consider the information in Plaintiffs brief which purports to account for any lack of prosecution of the case, the absence of a factual record in this regard is largely attributable to Defendant's failure to employ a rule to show cause with respect to its motion, and its listing of the motion for argument before Plaintiff could respond.' Finally, Defendant's brief was not timely filed. In view of the fact that a ruling on the motion is a matter within the Court's sound discretion, and because of the factors militating in Plaintiffs favor as aforesaid, the motion to dismiss will be denied. ORDER OF COURT AND NOW, thisilly of April, 1993, after careful consideration of the Motion of Defendant Winford-Lindsay Associates, Inc., To Dismiss Plaintiffs Complaint for Lack of Docket Activity/Non Pros, the Motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr. J. ' The Court also has not considered an Answer to Defendant's Petition filed by Plaintiff on April 13, 1993, many days after the argument. 5 No. 3357 Civil 1990 Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Dennis J. Bonetti, Esq. 2931 North Front Street Harrisburg, PA 17HO Attorney for Defendants P.C.M. Construction, Inc., and Harrisburg Airport Partnership Randy K. Hareza, Esq. BURNS, WHITE & HICKTON 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Attorney for Defendant Winford-Lindsay Associates, Inc. Days Inn Airport 1815 Eisenhower Boulevard Middletown, PA 17057 Heinz Mathis 422 Allegheny Street Hollidaysburg, PA 16648 rc C