Marino v. Hackman

710 A.2d 1108, 551 Pa. 369, 1998 Pa. LEXIS 585
CourtSupreme Court of Pennsylvania
DecidedApril 2, 1998
Docket193 M.D. Appeal Dkt. 1996
StatusPublished
Cited by72 cases

This text of 710 A.2d 1108 (Marino v. Hackman) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marino v. Hackman, 710 A.2d 1108, 551 Pa. 369, 1998 Pa. LEXIS 585 (Pa. 1998).

Opinion

OPINION

ZAPPALA, Justice.

We must determine whether non-docket activity may be considered when deciding whether a case should be terminated for inactivity pursuant to local rules implementing Rule of Judicial Administration 1901. 1 For the reasons set forth herein, we hold that non-docket activity may be considered.

On March 4, 1992, Appellants filed a complaint in Berks County seeking damages for injuries allegedly caused by Appellees’ negligence in an automobile accident. The docket reflects activity during 1992, including an answer to the complaint and issues related to discovery. The final docket entry of the year was a discovery-related item on November 30, 1992. No docket entries followed for two years and a day until December 1, 1994, when the prothonotary of Berks County filed a notice of termination pursuant to Rule 1901 and Berks County Rule of Judicial Administration 1901. On January 30, 1995, new counsel for Appellants entered his appearance and two days later filed a motion to prevent termination.

A hearing was held on the motion, where it was established that the following non-docket activity occurred during the period of alleged inactivity. Arthur D. Rabelow, Esquire, was substituted for Appellants’ first attorney, Donald Artzt, Esquire, due to Artzt’s death sometime in 1992. In March, 1993, depositions of all parties were taken. In the ensuing months, Appellants tried to contact Rabelow several times, but he never returned their calls. They last spoke with Rabelow in *372 February, 1994, when he reported settlement negotiations and indicated that he would let them know how the negotiations were proceeding in two or three weeks. Rabelow never contacted Appellants, however, and in August, 1994, Appellants decided to hire another attorney and wrote to Rabelow, discharging him. They received no response from Rabelow. Appellants subsequently retained current counsel, Dennis E. Boyle, Esquire, in October, 1994, and he requested Appellants’ file from Rabelow. After several months, Boyle was obliged to drive more than 200 miles to pick up the file at Rabelow’s office. At the same time, Boyle received Rabelow’s withdrawal of appearance which had been requested months earlier.

In addition to the foregoing activity, at least five letters were exchanged between counsel for Appellants and Appellees during the period August 6, 1993 and March 16, 1994, soliciting and communicating a settlement demand from Appellants. Appellees’ counsel stipulated that there was also a telephone call in June, 1994, in which Rabelow told him he would send a certificate of readiness for trial, although it was never received.

Following the termination hearing, the trial court held that Appellants had failed to establish compelling reasons for the two years of inactivity on the docket, and ordered the case terminated pursuant to Berks County Rule of Judicial Administration 1901, 2 which was enacted pursuant to Pennsylvania Rule of Judicial Administration 1901. 3

*373 The Superior Court affirmed, holding that the reasons advanced by Appellants to explain the delay are not the type of reasons contemplated by our Court in Penn Piping or Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992). 4

We begin our analysis by reviewing our holdings in the companion cases of Jacobs and Shope. In Jacobs, we held that to dismiss a case for inactivity pursuant to a defendant’s motion for non pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant. 551 Pa. at 358, 710 A.2d at 1103.

In Shope, we held that the same standard applies to terminations pursuant to a defendant’s motion for non pros and dismissals pursuant to a local rule implementing Rule 1901. We further held that equitable principles should be considered when dismissing a case pursuant to Rule 1901. 551 Pa. at 366, 710 A.2d at 1107.

This case gives us the opportunity to determine whether the second prong of the test for inactivity, i.e., whether the plaintiff set forth a compelling reason for the delay, should include consideration of activities which are not reflected on the docket. In Penn Piping, we stated that compelling rea *374 sons for delay were set forth in “cases where the delaying party establishes the delay was caused by bankruptcy, liquidation, or other operation of law, or in cases awaiting significant developments in the law.” We noted, however, that “[t]here may, of course, be other compelling reasons which will be determined on a case-by-case basis.” 529 Pa. at 356 n. 2, 603 A.2d at 1009 n. 2. While we adhere to the view that each case must be examined on its merits, we find that non-docket activity can be examined in deciding whether a compelling reason exists. 5

In recent years, many courts of common pleas have developed their own policies regarding which activities are to be recorded on the docket. In some counties, activity that was formerly recorded on the docket is no longer. This leads to a lack of uniformity in the application of Rule 1901 and also in the granting of judgments of non pros. We further recognize that some activities which are beyond the control of the plaintiff can cause delay in prosecution yet are not required to be docketed. This precise problem was anticipated in Streidl, where it was noted that “a case may be active but have no need of reflecting the activity on the docket....” (Opinion in Support of Reversal), 529 Pa. at 364 n. 1, 603 A.2d at 1013 n. 1 (1992).

Although the docket provides an empirical, easily verifiable criterion to trigger review of a case, it is too crude a mechanism to distinguish truly inactive, stale cases from active ones where activity is not reflected on the docket. Dismissal of a case is far too harsh a result when the case is not actually stale but was moving slowly forward.

Applying this standard to the instant case, we find that the lower court abused its discretion in dismissing the case for inactivity as a compelling reason existed for the delay in prosecution. This case had an unusual amount of activity not entered on the docket: the death of Appellants’ first attorney and the substitution of his partner, an attorney not known to *375

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Bluebook (online)
710 A.2d 1108, 551 Pa. 369, 1998 Pa. LEXIS 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marino-v-hackman-pa-1998.