Matusow v. Zieger

702 A.2d 1126, 1997 Pa. Commw. LEXIS 805, 1997 WL 713537
CourtCommonwealth Court of Pennsylvania
DecidedNovember 10, 1997
DocketNo. 2531 C.D. 1996
StatusPublished
Cited by8 cases

This text of 702 A.2d 1126 (Matusow v. Zieger) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matusow v. Zieger, 702 A.2d 1126, 1997 Pa. Commw. LEXIS 805, 1997 WL 713537 (Pa. Ct. App. 1997).

Opinion

PELLEGRINI, Judge.

Andrew and Sharon Matusow (Plaintiffs) appeal from an order of the Court of Common Pleas of Montgomery County (trial court) terminating their case pursuant to Pa. R.J.A. No.1901 (Rule 1901) and Montgomery County Local Rule 406 (Local Rule 406) for lack of docket activity.

The Plaintiffs were passengers in a vehicle driven by Defendant Marvin Zieger traveling on a state highway when their vehicle hit a patch of ice and skidded into the oncoming car owned by Defendant Karen Luff and driven by Defendant Gerald Luff. On March 18, 1982, the Plaintiffs filed a complaint against Zieger and the Luffs for negligently operating their vehicles, as well as against Defendant Pennsylvania Department of Transportation (The Department) for negligently maintaining its highway.

Because no docket activity occurred between August of 1986 and August of 1988, pursuant to Local Rule 406,1 on March 15, [1128]*11281988, the Prothonotary of the Court of Common Pleas of Montgomery County sent to Plaintiffs’ counsel a notice of intent to terminate the action for lack of docket activity. In response, the Plaintiffs filed a timely Activity Status Certificate and the case was not terminated. Counsel for the Plaintiffs then certified the case ready for trial and it was placed on the April 11,1990 trial list.

Because of this court’s then recent decision in Crowell v. City of Philadelphia, 131 Pa.Cmwlth. 418, 570 A.2d 626 (1990), reversed, 531 Pa. 400, 613 A.2d 1178 (1992),2 the Department filed a motion for summary judgment contending that it could not be liable when a joint tortfeasor was involved, i.e., the other Defendants, in this case. Because a petition for allowance of appeal had been granted, the trial court, by order dated June 20, 1990, with the agreement of the parties, removed the case from the trial fist and deferred the summary judgment motion until our Supreme Court decided Crowell. On June 17, 1992, the Supreme Court subsequently rendered its opinion in Crowell.3

Even though the summary judgment motion was still pending, the Prothonotary, on June 21, 1993, issued a second notice of intent to terminate for lack of docket activity because no activity had occurred on the docket for more than two years. It was mailed to the Plaintiffs’ counsel but was returned undelivered because he had moved his office and had not complied with Montgomery County Local Rule 1012(c) (Local Rule 1012) that requires an attorney to notify the Court Administrator of a change of address.4 Not receiving an Activity Status Certificate, on July 26, 1993, without giving notice by publication, the Prothonotary terminated the action for inactivity.

On January 2, 1996, approximately 30 months after the case was terminated, the Plaintiffs filed a Motion to Strike Termination and Reinstate Case as Active Case claiming that the Rule 1901 notice requirements had not been met. The court held that the lack of docket activity was not excused by The Department’s outstanding motion for summary judgment because the burden was always on the Plaintiffs as plaintiffs to move the case forward. Reasoning that the failure to receive notice was due to the Plaintiffs’ counsel’s failure to notify the Court Administrator of his change of address, the trial court denied the motion and this appeal followed.5

To rid clogged judicial dockets of cases that show a lack of docket activity, Rule 1901 authorizes the courts of common pleas to terminate cases on their own motion where they have been inactive for an unreasonable period of time. Rule 1901(c) also provides what notice must be given before a case can be terminated. In relevant part, it provides:

[T]he parties shall be given at least 30 days written notice of opportunity for hearing on such proposed termination, which notice shall be given:
(1) In person or by mail to the last address of record of the parties or their counsel of record and setting forth a brief identification of the matter to be terminated; or
(2) By publication in the manner provided for by rule of court in the legal newspaper designated by rule of court for the publication of legal notices in any case where notice by mail cannot be given or has been returned undelivered.

Once a case has been terminated, the “open judgment” standard that must be met [1129]*1129in opening default judgments has been applied to those seeking reinstatement of a case dismissed, i.e., the petitioner must show good cause why the case should be reactivated. Martin v. Grandview Hospital, 373 Pa.Super. 369, 541 A.2d 361 (1988). To meet the “good cause” standard, a party seeking reinstatement must show:

1. the petition for reinstatement was timely filed;
2. a reasonable explanation exists for the docket inactivity; and
3. facts exist supporting a meritorious cause of action.

Samaras v. Hartwick, 698 A.2d 71 (Pa.Superior 1997); Martin v. Grandview Hospital.

To determine whether the second prong of that test is met, a separate three-part test set forth in Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992) is used. State of The Art Medical Products, Inc. v. Aries Medical, Inc., 456 Pa.Super. 148, 689 A.2d 957 (1997). County of Erie v. Peerless Heater Co., 660 A.2d 238 (Pa.Cmwlth.1995). Penn Piping further defined a test originally set forth in James Bros. Lumber Co. v. Union Banking & Trust Company of DuBois, 432 Pa. 129, 247 A.2d 587 (1968) that provided a judgment of non pros may be entered where: (1) a party to the proceedings has shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there has been no compelling reason for the delay;6 and (3) the delay has caused some prejudice to the adverse party. In Penn Piping, the court examined the prejudice element and held that a two year delay is presumed prejudicial to dismiss any proceeding for lack of activity on the docket. Penn Piping at 356, 603 A.2d at 1009.

The Plaintiffs contend that they do not have to meet the “good cause” standard because the mailed notice was returned undelivered and Rule 1901 requires that notice by publication be given. Because that notice was not given, they claim the termination of their action was void ab initio. In confronting a similar situation in Stringer v. Kaytes, 286 Pa.Super. 551, 429 A.2d 660

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Bluebook (online)
702 A.2d 1126, 1997 Pa. Commw. LEXIS 805, 1997 WL 713537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matusow-v-zieger-pacommwct-1997.