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HomeMy WebLinkAbout2002-4570 Civil DANKO ARLINGTON, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW CALABRESE & SONS, INC., Defendant NO. 02-4570 CIVIL TERM IN RE: PETITION FOR JUDGMENT OF NON PROS BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., November 22,2006. In this case arising out of a contract between Plaintiff as manufacturer/seller and Defendant as buyer, Plaintiff has sued Defendant for $6,591.22, representing the amount Plaintiff claims to be due on the purchase price of certain "castings" delivered to Defendant. 1 Defendant has counterclaimed for losses allegedly incurred due to a delay in Plaintiff s performance? F or disposition at this time is Defendant's petition for judgment of non pros.3 For the reasons stated in this opinion, the petition will be denied. STATEMENT OF FACTS This case was commenced by Plaintiff Danko Arlington, Inc., of Baltimore, Maryland, against Defendant Calabrese & Sons, Inc., of Mechanicsburg, Pennsylvania, at the district justice level.4 At that level, Plaintiff was awarded judgment against Defendant by the Honorable Thomas A. Placey in the amount of I Plaintiffs Complaint, filed October 7,2002. 2 Defendant's Answer with New Matter and Counterclaim, dated April 14, 2003. 3 Defendant's Motion for Rule To Show Cause, filed July 28, 2006. 4 See Notice of Judgment/Transcript, Danko Arlington, Inc. v. Calabrese & Sons, Inc., dated September 9,2002. $6,591.22.5 Defendant filed a notice of appeal to this court from the judgment of the district justice on September 23,2002.6 Plaintiffs complaint in this court was filed on October 7, 2002.7 Defendant's answer with new matter and counterclaim appears in the official file, but for some reason was not time-stamped or entered on the docket by the prothonotary. Plaintiff s reply to Defendant's new matter and counterclaim was filed on April 30, 2003.8 The case proceeded to arbitration, resulting in a second award in favor of Plaintiff in the amount of $6,591.92, on July 24, 2003.9 Defendant filed a notice of appeal from the Award of the Board of Arbitrators on August 22, 2003.10 A certificate of service upon Plaintiff s counsel accompanied the notice of appeal. 11 The docket reveals no further docket activity until June 28, 2006, when Defendant filed a petition for judgment of non pros based upon the extended period of docket inactivity.12 The petition alleged the following: 1. This is a civil action commenced in 2002 which was adjudicated by court annexed arbitration panel on July 24, 2003; timely appealed with compensation of the arbitrators being paid by Defendant on August 22, 2003. 2. Counsel for Plaintiff was duly served. 3. There has been no activity on Plaintiffs behalf since July of 2003 to pursue its action. 4. On or about June 19, 2006, Defendant's counsel has attempted contact by telephone with both counsel for the Plaintiff and directly to Plaintiffs corporate office and no response has to date been received. 5 Judgment, September 9,2002. 6 Notice of Appeal, filed September 23,2002. 7 Plaintiffs Complaint, filed October 7, 2002. 8 Plaintiff Danko Arlington, Incorporated's Answer to Defendant's New Matter and Counterclaim, filed April 30, 2003. 9 Award of Arbitrators, filed July 24,2003. 10 Defendant's Notice of Appeal from Award of Board of Arbitrators, filed August 22,2003. II Defendant's Notice of Appeal from Award of Board of Arbitrators, filed August 22,2003. 12 Defendant's Motion for Rule To Show Cause, filed July 28, 2006. 2 5. Counsel for Defendant has also caused correspondence to be directed to counsel for the Plaintiff. 6. Defendant is requesting the Court will enter a Rule to Show Cause. . . directing Plaintiff to show cause within thirty (30) days why the action should not be dismissed for Non Pros.13 On July 5, 2006, the court issued a rule to show cause in response to the petition, reading as follows: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. RC.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, October 2,2006, at 2:15 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania[;] 6. Briefs shall be submitted at least seven days prior to argument. 14 Plaintiff s answer to the petition for judgment of non pros was filed on August 31, 2006.15 The answer admitted (a) that the action had been commenced in 2002 and had been the subject of an arbitration award, (b) that Plaintiff had undertaken no activity since July of 2003 to pursue the action, (c) that Defendant's counsel had contacted Plaintiff s counsel by telephone, and (d) that Defendant's counsel had sent correspondence to Plaintiff s counsel. 16 The answer denied, however, that Plaintiff s counsel had not responded to Defendant's counsel. 17 It also refused to admit, on grounds of a lack of information, ( a) that Defendant had appealed from the arbitrators' award, (b) that counsel for Plaintiff had been served with notice of the appeal, and (c) that 13 Defendant's Motion for Rule To Show Cause, filed June 28,2006. 14 Order of Court, July 5,2006. 15 Plaintiffs Answer to Defendant's Motion for Rule To Show Cause, filed August 31, 2006. 16 Plaintiffs Answer to Defendant's Motion for Rule To Show Cause, paras. 1, 3-5, filed August 31, 2006. 17 Plaintiffs Answer to Defendant's Motion for Rule To Show Cause, para. 4, filed August 31, 2006. 3 Defendant's counsel had attempted to directly contact Plaintiff s corporate office. 18 N either the petition nor the answer addressed the issue of whether Defendant had incurred any prejudice from the delay. Nor were depositions conducted by either party. The matter was argued, in accordance with the Rule, on October 2,2006. DISCUSSION A judgment of non pros is appropriately entered where (1) a party has shown a lack of due diligence by 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. Jacobs v. Halloran, 551 Pa. 350, 358, 710 A.2d 1098, 1103 (1998). In Jacobs, the Pennsylvania Supreme Court returned to the three-prong test requiring actual prejudice, set forth above, overruling previous precedent that two years of inactivity in a case created a presumption of prejudice. Id Prejudice in this context has been defined as "any substantial diminution of a party's ability to properly present its case at trial." Id at 359, 710 A.2d at 1103 (citations omitted). The burden of proof with respect to prejudice rests with the party seeking the non pros. See Garver v. Bradford/White Corp., 711 A.2d 1063 (Pa. Commw. 1998). Under Pennsylvania Rule of Civil Procedure 206.7, where a rule to show cause of the type issued in this case is involved, the following applies to the court's disposition of the petition that precipitated the rule: (a) If an answer [to the petition] is not filed, all averments of fact in the petition may be deemed admitted. . . and the court shall enter an appropriate order. (b) If an answer is filed raising no disputed issues of material fact, the court on request of the petitioner shall decide the petition on the petition and answer. 18 Plaintiffs Answer to Defendant's Motion for Rule To Show Cause, paras. 1-2,4, filed August 31, 2006. 4 (c) If an answer is filed raising disputed issues of material fact, the petitioner may take depositions on those issues, or such other discovery as the court allows, within the time set forth in the order of the court. If the petitioner does not do so, 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 . . . . (d) The respondent may take depositions, or such other discovery as the court allows. 19 In the present case, where ( a) Defendant did not allege in its petition for judgment of non pros any actual prejudice to it from Plaintiff s docket inactivity, (b) Plaintiff did not concede any prejudice to Defendant in its answer to the petition, and (c) Defendant did not conduct any depositions, on the issue of prejudice or otherwise, the court is not in a position to grant the petition for judgment of non pros. Accordingly, the following order of court will be entered: ORDER AND NOW, this 22nd day of November, 2006, upon consideration of Defendant's petition for judgment of non pros in the form of a Motion for Rule To Show Cause, following oral argument held on October 2, 2006, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. James 1. Woodworth, Esq. 209 West Lackawanna Avenue Olyphant, PA 18447 Attorney for Plaintiff David A. Fitzsimons, Esq. Michael 1. Collins, Esq. 10 East High Street Carlisle, P A 17013 Attorneys for Defendant 19 Pa. RC.P. 206.7. 5 6 DANKO ARLINGTON, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW CALABRESE & SONS, INC., Defendant NO. 02-4570 CIVIL TERM IN RE: PETITION FOR JUDGMENT OF NON PROS BEFORE OLER, J. ORDER OF COURT AND NOW, this 22nd day of November, 2006, upon consideration of Defendant's petition for judgment of non pros in the form of a Motion for Rule To Show Cause, following oral argument held on October 2, 2006, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, 1. Wesley Oler, Jr., 1. James 1. Woodworth, Esq. 209 West Lackawanna Avenue Olyphant, PA 18447 Attorney for Plaintiff David A. Fitzsimons, Esq. Michael 1. Collins, Esq. 10 East High Street Carlisle, P A 17013 Attorneys for Defendant