Miers Johnston Printing Corp. v. Bucks County Bank & Trust Co.

49 Pa. D. & C.4th 170, 2000 Pa. Dist. & Cnty. Dec. LEXIS 122
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJune 22, 2000
Docketno. 1992-C-2442
StatusPublished

This text of 49 Pa. D. & C.4th 170 (Miers Johnston Printing Corp. v. Bucks County Bank & Trust Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miers Johnston Printing Corp. v. Bucks County Bank & Trust Co., 49 Pa. D. & C.4th 170, 2000 Pa. Dist. & Cnty. Dec. LEXIS 122 (Pa. Super. Ct. 2000).

Opinion

GARDNER, P.J.,

This matter is before the court on the petition to strike and/or open judgment filed by plaintiff Miers Johnston Printing Corporation. In its petition, plaintiff seeks to either strike or open our order dated May 21, 1999. That order granted defendant Bucks County Bank and Trust Company’s motion to enter judgment of non pros filed July 12, 1995, and dismissed plaintiff’s complaint and amended complaint. For the reasons expressed below, we deny the petition.

In this lawsuit, plaintiff seeks damages in the amount of $338,000 plus interest, costs and reasonable attorney’s fees for defendant bank’s use and occupation of premises owned by plaintiff, but occupied by defendant bank as the result of a default on a loan from the bank by a former tenant of the premises. Plaintiff seeks lost rental value of [172]*172its building (including the property taxes and insurance payments) and the cost of cleaning up debris and toxic materials left behind when the tenant turned over the building.

This matter is before the court on remand from the Supreme Court of Pennsylvania. We originally granted defendant’s within motion to enter judgment of non pros by our order and bench opinion of December 1, 1995. Our decision was based on the grounds that plaintiff exhibited a lack of due diligence by failing to proceed with this litigation with reasonable promptitude, on the grounds that there was no compelling reasons for the delay, and on the grounds that the delay caused prejudice to the adverse party.

Regarding the prejudice, we relied upon Penn Piping Inc. v. Insurance Company of North America, 529 Pa. 350, 356, 603 A.2d 1006, 1009 (1992) for the proposition that in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket. We found that a period in excess of two-and-one-half years elapsed between the time plaintiff filed its reply to new matter on February 3, 1993 and filed its motion for summary judgment on September 18, 1995. We found that during that period, the record reflects no substantial action taken by plaintiff in this case.

On February 12, 1997 our decision was affirmed by the Superior Court of Pennsylvania. On April 22, 1998 in a two-sentence per curiam order, the Supreme Court of Pennsylvania, in no. 145, Middle District appeal docket 1997, vacated our December 1, 1995 order and remanded the case “for reconsideration in light of Marino v. Hackman1 and Jacobs v. Halloran.2

[173]*173The Supreme Court in Jacobs abandoned the two-year presumption of prejudice announced in Penn Piping, supra, and required there to be actual prejudice in order to dismiss a case for inactivity. Accordingly, the within matter was remanded for a determination whether defendant experienced actual prejudice as a result of the delay.

In Jacobs v. Halloran, supra, the Supreme Court of Pennsylvania announced a three-part test. The Supreme Court stated 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 355, 710 A.2d at 1101.

On May 21,1999 we held oral argument based upon a joint stipulation of agreed upon facts which was filed November 6, 1998. Immediately after oral argument in open court, on the record and in the presence of counsel for the parties, we dictated an order and bench opinion granting defendant’s motion for non pros for reasons articulated in that opinion, which we incorporate here.

Because the Supreme Court vacated our December 1, 1995 order in its entirety, not just the prejudice prong, we concluded that it was appropriate to revisit each prong of the three-prong test.

First, we extensively reviewed both the docket and non-docket activity and concluded that plaintiff failed to proceed with reasonable promptitude. (This was similar to our original analysis and conclusion in our first order and bench opinion of December 1, 1995, which is also incorporated here.)

[174]*174Second, we concluded that plaintiff had failed to produce a compelling reason for the delay. We stated “in this regard, plaintiff points only to the negligence of local counsel in failing to promptly file the motion for summary judgment, which was forwarded by Boston counsel for that purpose. Plaintiff offers no reason or justification for local counsel’s failure beyond the bare assertion of that failure. As noted by the Superior Court in its memorandum opinion, bare allegations of counsel’s negligence, without more, will not mandate a second day in court. Alston v. Philadelphia Electric Company, 337 Pa. Super. 46, 57, 486 A.2d 473, 478 (1984).” Bench opinion of May 21, 1999, p. 7.

Third, we concluded that the delay caused defendant actual prejudice. We incorporate our detailed analysis on this point here. Briefly, we concluded that the former senior vice-president3 and former administrative vice-president4 of defendant bank each left his employment with defendant’s successor bank in 1995. We determined that there are no employees currently at the successor bank who were responsible for handling or monitoring defendant’s loan relationship with plaintiff’s tenant, the tenant’s subsequent bankruptcy proceedings, and the events which ultimately led to the instant litigation.

We concluded that the oral depositions of these two vice-presidents5 reflected a lack of memory on all but [175]*175the most general details of these transactions, which occurred eight years ago and earlier. The Supreme Court in Jacobs indicated that fading memories may prejudice a party. We stated “we find that under the circumstances of this case, the delays in bringing this matter to trial, attributable to plaintiff, caused memory loss to such an extent as to create actual prejudice to defendant. Specifically, defendant is unable to reconstruct a defense as a result of plaintiff’s delays from 1993 to 1995. Had plaintiff acted promptly at that time, this case would have proceeded to trial in that time frame, at a time when additional bank employees and other witnesses could have been identified and their testimony preserved, and at a time when the memories of the two presently existing witnesses would have been sharper and clearer.” Bench opinion of May 21, 1999, pp. 8-9.

Initially we note that, although plaintiff styled its request as a petition to strike or open a judgment, it is really a motion to reconsider our order of May 21, 1999 granting defendant’s motion for non pros a second time. Plaintiff advances only two arguments in support of its petition.

First, plaintiff argues that our conclusion that plaintiff failed to produce a compelling reason for the delay (the second prong) is not supported by the record.

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Related

Jacobs v. Halloran
710 A.2d 1098 (Supreme Court of Pennsylvania, 1998)
Marino v. Hackman
710 A.2d 1108 (Supreme Court of Pennsylvania, 1998)
Alston v. Philadelphia Electric Co.
486 A.2d 473 (Supreme Court of Pennsylvania, 1984)
Penn Piping, Inc. v. Insurance Co. of North America
603 A.2d 1006 (Supreme Court of Pennsylvania, 1992)
Resolution Trust Corp. v. Copley Qu-Wayne Associates
683 A.2d 269 (Supreme Court of Pennsylvania, 1996)
Simmons v. Luallen
738 A.2d 1018 (Superior Court of Pennsylvania, 1999)

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Bluebook (online)
49 Pa. D. & C.4th 170, 2000 Pa. Dist. & Cnty. Dec. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miers-johnston-printing-corp-v-bucks-county-bank-trust-co-pactcompllehigh-2000.