Michiline, J. v. Dougherty, V.

• Court: Superior Court of Pennsylvania
• Decided: October 26, 2015
• Docket: 789 WDA 2015
• Status: Unpublished

Opinion

J-S62038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH L. MICHILINE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

VINCENT G. DOUGHERTY, INDIVIDUALLY, VINCE G. DOUGHERTY, A/K/A VINCENT G. DOUGHERTY, CHARLES P. LEACH, AND J. RICHARD GEORGE, ALL INDIVIDUALLY AND T/D/B/A NEW BETHLEHEM PLAZA II, AND CNB COMMUNITY BANK

Appellees No. 789 WDA 2015

Appeal from the Order April 13, 2015 In the Court of Common Pleas of Clarion County Civil Division at No(s): 801 CD 2004

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 26, 2015

Appellant, Joseph L. Michiline, appeals from the order entered in the

Clarion County Court of Common Pleas, which dismissed with prejudice, due

to docket inactivity, Appellant’s civil action against Appellees, Vincent G.

Dougherty, individually, Vince G. Dougherty, a/k/a Vincent G. Dougherty,

Charles P. Leach, and J. Richard George, all individually and t/d/b/a New

Bethlehem Plaza II (collectively, “Dougherty Appellees”), and CNB

Community Bank (“Appellee Bank”). We affirm.

The relevant facts and procedural history of this case are as follows.

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*Retired Senior Judge assigned to the Superior Court. J-S62038-15

On February 1, 2005, Appellant filed a complaint against the Dougherty

Appellees and Appellee Bank.1 Appellant alleged a fire occurred on or about

April 29, 2002 on Appellees’ property, which is nearby or adjoining

Appellant’s property. Appellant maintained that Appellees demolished the

building on their property after the fire and the demolition changed the

contours of the ground, which ultimately caused ground water to leak into

the basement of Appellant’s property, beginning around March 2003.

Appellant claimed the leakage caused structural damage to his property. On

April 20, 2005, Appellant filed an amended complaint. Appellant filed a

second amended complaint on February 21, 2006, and a third amended

complaint on March 22, 2006. Appellee Bank filed an answer and new

matter on April 26, 2006; the Dougherty Appellees filed an answer and new

matter on May 11, 2006.2 Appellant filed replies on June 23, 2006.

Between June 2006 and December 2010, Appellant took no action to

prosecute his case.3 Consequently, the court issued notice proposing to

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1 Appellant initially commenced this action by writ of summons filed on June 28, 2004. 2 On May 19, 2006, Appellee Bank filed a complaint joining an additional defendant, Hilliard’s, Inc. Nothing in the record indicates that Appellee Bank actually served Hilliard’s, Inc. with the joinder complaint, and Hilliard’s, Inc. has not filed a responsive pleading. Therefore, Hilliard’s Inc. is a non-party. 3 The only docket activity during this timeframe was a praecipe for withdrawal of appearance and a praecipe for entry of appearance by counsel for Appellee Bank on February 12, 2008.

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terminate the case for inactivity. On December 28, 2010, Appellant filed a

statement of intent to proceed with his case, and the case remained active

on the court’s docket. No additional docket activity took place until

November 5, 2013, when Appellee Bank filed a motion for judgment on the

pleadings. Appellant responded to the motion on December 4, 2013. The

court denied Appellee Bank’s motion on February 12, 2014.

On December 10, 2014, the court issued an order again proposing

termination of Appellant’s case due to inactivity. The court’s order gave

Appellant until February 23, 2015, to file a response. On February 23, 2015,

Appellant objected to termination of the case. The Dougherty Appellees

responded to Appellant’s objections on April 2, 2015, and Appellee Bank

responded on April 6, 2015. The court held a hearing on April 7, 2015, at

which time Appellees presented argument on prejudice they suffered as a

result of Appellant’s delay in prosecuting the case. By order dated April 7,

2015, and entered on the docket on April 13, 2015, the court dismissed

Appellant’s case with prejudice. Appellant timely filed a motion for

reconsideration on April 23, 2015, which the court denied the following day.

Appellant timely filed a notice of appeal on May 13, 2015. On May 14, 2015,

the court ordered Appellant to file a concise statement of errors complained

of on appeal per Pa.R.A.P. 1925(b), which Appellant timely filed on June 3,

2015.

Appellant raises two issues for our review:

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DID THE TRIAL COURT ERR IN DISMISSING THE CASE AS TO ALL [APPELLEES]?

DID THE TRIAL COURT ERR IN DISMISSING THE CASE AS TO [APPELLEE BANK]?

(Appellant’s Brief at 4).

For purposes of disposition, we combine Appellant’s issues. Appellant

argues Appellees did not give him sufficient notice of their claims of actual

prejudice. Appellant asserts he needed more time before the hearing to

investigate Appellees’ claims of prejudice. Appellant contends the court

dismissed his case before Appellant had an opportunity to investigate

Appellees’ allegations of prejudice, which deprived him of due process.

Alternatively, Appellant maintains that even if the court properly dismissed

the case against the Dougherty Appellees based on their allegations of

prejudice, the court’s dismissal of the case against Appellee Bank was

inappropriate because Appellee Bank’s allegations of prejudice were less

precise than those advanced by the Dougherty Appellees. Appellant

concludes the court failed to give him sufficient time to investigate

Appellees’ claims of prejudice, and this Court should remand for another

hearing after Appellant has reasonable time to investigate Appellees’ claims.

We cannot agree.

Preliminarily, appellate briefs must conform in all material respects to

the briefing requirements set forth in the Pennsylvania Rules of Appellate

Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing

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specific requirements of each subsection of brief on appeal). Regarding the

argument section of an appellate brief, Rule 2119(a) provides:

Rule 2119. Argument

(a) General rule.—The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). Importantly, where an appellant fails to raise or develop

his issues on appeal properly, or where his brief is wholly inadequate to

present specific issues for review, this Court will not consider the merits of

the claims raised on appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super.

2000) (holding appellant waived claim where she failed to set forth adequate

argument concerning her claim on appeal; argument lacked meaningful

substance and consisted of mere conclusory statements; appellant failed to

explain cogently or even tenuously assert how trial court abused its

discretion or made error of law). See also Lackner v. Glosser, 892 A.2d

21 (Pa.Super 2006) (explaining arguments must adhere to rules of appellate

procedure and arguments which are not appropriately developed are waived

on appeal; arguments not appropriately developed include those where

party has failed to cite any authority in support of contention); Estate of

Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must

support each question raised by discussion and analysis of pertinent

authority; absent reasoned discussion of law in appellate brief, this Court’s

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ability to provide review is hampered, necessitating waiver of issue on

appeal).

Instantly, Appellant’s entire argument section consists of only two

short paragraphs. Significantly, Appellant fails to discuss any relevant legal

authority to support his claims on appeal.4 See Pa.R.A.P. 2119(a).

Appellant’s failure to develop his claims with discussion and analysis of

pertinent legal authority precludes meaningful review and waives his issues

on appeal.5 See Lackner, supra; Haiko, supra; Butler, supra.

Moreover, in reviewing a trial court’s termination of an action due to

docket inactivity, we will not disturb the court’s determination absent an

abuse of discretion or error of law. Tucker v. Ellwood Quality Steels Co.,

802 A.2d 663, 664 (Pa.Super. 2002). Pennsylvania Rule of Judicial

Administration 1901 provides, in pertinent part:

Rule 1901. Prompt Disposition of Matters; Termination of Inactive Cases

(a) General policy. It is the policy of the unified judicial system to bring each pending matter to a final ____________________________________________

4 The only citation to legal authority in Appellant’s argument section is to Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998). Appellant claims this case provides the “proper standard” in this matter, but he fails to explain what that standard is or discuss Shope in any meaningful way. 5 Additionally, Appellant failed to preserve in his Rule 1925(b) statement his claim that the court gave him insufficient time to investigate Appellees’ allegations of prejudice; thus, his challenge is waived for this reason as well. See HSBC Bank, NA v. Donaghy, 101 A.3d 129 (Pa.Super. 2014) (stating issues not raised in concise statement will be deemed waived on appeal).

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conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.

* * *

(c) Minimum standards. Before any order terminating a matter on the ground of unreasonable inactivity is entered, the parties shall be given at least 30 days’ written notice of opportunity for hearing on such proposed termination….

Pa.R.J.A. 1901(a), (c). “To dismiss a case for inactivity 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.” Shope, supra at 367, 710 A.2d at 1107-08. “[I]t is plaintiff,

not defendant, who bears the risk of failing to act within a reasonable time

to move a case along.” Id. at 368, 710 A.2d at 1108.

Instantly, in dismissing Appellant’s case due to inactivity, the trial

court reasoned:

On December 10, 2014, this court notified all the parties that due to an unreasonable period of docket inactivity, the case would be dismissed pursuant to Rule of Judicial Administration 1901(a) unless [Appellant] objected. [Appellant] did file an Objection to Dismissal, to which [Appellees] replied, and a hearing was held on April 7, 2015. At that hearing, it was established that the incident giving rise to the suit, a fire consuming a building giving rise to allegedly negligent demolition of the structure, had occurred in 2002, with [Appellant] filing suit in 2004. After an initial flurry of activity including various preliminary objections and amended complaints, the matter sat,

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stagnant, from 2006 to the present. In that time, the only activities were attempts by [Appellees] to compel discovery from [Appellant], or to terminate the action by seeking judgment on the pleadings. The only explanation [Appellant] offered for this delay was a scheduling conflict that prevented a deposition in [the] summer of 2014. [Appellees], for their part, established that the delay in the case had caused them to be unable to locate important fact witnesses, one of whom had since died, and that certain probative documents were no longer available.

To dismiss a case for inactivity there must be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude, the plaintiff must have no compelling reason for the delay, and the delay must cause actual prejudice to the defendant. [Id. at 367, 710 A.2d at 1107-08]. In the present case, [Appellant] presented no satisfactory explanation for [his] failure to file any motions, perform any substantial discovery, or list the case for trial in almost nine years. In contrast, [Appellees] presented substantial evidence of prejudice to themselves in the form of unavailable witnesses and evidence. Accordingly, the court found all of the criterion for dismissal were met, and terminated the case with prejudice.

(Trial Court Opinion, filed June 17, 2015, at 1-2). Under these

circumstances, we see no reason to disrupt the trial court’s dismissal of the

case. See Tucker, supra. Accordingly, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/26/2015

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