Penn Piping, Inc. v. Insurance Co. of North America

554 A.2d 925, 382 Pa. Super. 19, 1989 Pa. Super. LEXIS 142

• Court: Supreme Court of Pennsylvania
• Decided: February 1, 1989
• Docket: 1687
• Status: Published

Opinions

JOHNSON, Judge:

This is an appeal from an Order dismissing the instant action for failure to prosecute. We reverse.

This action arose as a result of dealings between Penn Piping, Inc., (PPI) a commercial contracting company, and Insurance Company of North America, (INA) who acted as surety on various payment and performance bonds issued to owners who had contracted for PPI’s services. PPI alleges that INA defaulted on its oral promise to continue to issue such bonds. On September 22, 1980 a Praecipe For a Writ of Summons was filed. On December 8, 1980 PPI filed for bankruptcy under Chapter 11. On December 12, 1980, pursuant to a Rule entered upon it, PPI filed its initial Complaint against INA. On June 12, 1981, pursuant to an Order of Court, PPI filed an Amended Complaint. INA has never answered or otherwise pleaded to this Amended Complaint. Six years later, on June 16, 1987, INA filed a Rule to Show Cause why the case should not be dismissed for lack of activity pursuant to Pa.R.J.A. 1901.

After oral argument before the Honorable R. Stanton Wettick an Order was issued on November 4, 1987 making the Rule absolute and dismissing the case for lack of activity. PPI appeals from this Order, raising the following issue:

I. May the court dismiss a case for an alleged lack of prosecution when the moving party has contributed to the delay and the moving party is not prejudiced?

It is well settled law that the grant of a non pros is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Gallagher v. Jewish Hospital Association of Philadelphia, 425 Pa. 112, 228 A.2d 732 (1967). In properly exercising its discretion, the trial court considers whether, 1) a party to the case has shown a lack of due diligence in proceeding with the suit, 2) there has been no compelling reason for the delay, and 3) the delay has caused some prejudice to the adverse party such that a substantial diminution of his ability to present his case at trial exists. James Brothers Lumber Company v. Union Banking & Trust Company of DuBois, 432 Pa. 129, 247 A.2d 587 (1968).

The trial court concluded that since there was inactivity of record for more than two years without a showing of good cause the proceeding must be dismissed. The trial court based its decision on the case of International Telephone and Telegraph Corporation v. Philadelphia Electric Company, 250 Pa.Super. 378, 378 A.2d 986 (1977) which involved the dismissal of an action pursuant to a local rule of court of Philadelphia County. This rule mandated the automatic dismissal of any case whose docket entries evidenced inactivity for two successive years, upon sixty days notice to the parties. However, the instant action was instituted in Allegheny County where there has been no parallel rule in effect since Allegheny County Local Rule 229(e) was ruled ineffective and unenforceable for failure to provide for pretermination notice as required by Pa.R.J.A. 1901. Taylor v. Oxford Land, Inc., 338 Pa.Super. 609, 488 A.2d 59 (1985), aff'd 513 Pa. 34, 518 A.2d 808 (1986). Thus, the trial court misapplied the law in its finding that the case must be dismissed for lack of prosecution.

Notwithstanding the rationale of the trial court, it is well established in this Commonwealth that an appellate court may affirm a decision of a trial court if the result is correct on any ground. Green v. Juneja, 337 Pa.Super. 460, 487 A.2d 36 (1985), appeal denied. We therefore consider whether the grant of a non pros was correct in the instant case.

PPI first contends that it was error for the trial court to grant a non pros when INA contributed to the delay in prosecuting the case by not filing an Answer to the Amended Complaint. We disagree with this contention however, because it has long been established that the duty is on the plaintiff to proceed with the cause of action and the plaintiff, not the defendant, should bear the risk of not acting within a reasonable time. Kennedy v. Bulletin Company, 237 Pa.Super. 66, 346 A.2d 343 (1975), Metz Contracting, Inc. v. Riverwood Builders, Inc. 360 Pa.Super. 445, 520 A.2d 891 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987). In this case, where no Answer was filed to the Amended Complaint PPI could have exercised the remedy available through Pa.R.C.P. 287.1, a notice of intent to take a default judgment for failing to answer or otherwise plead to PPFs Amended Complaint. If this notice failed to bring a response from INA, a Praecipe for entry of a Judgment Upon Default, Pa.R.C.P. 1037(b), could have been instituted. Neither of these remedies was employed by PPI, the party squarely responsible for moving forward with the prosecution of the case. We therefore find that PPI has demonstrated a lack of due diligence.

In addition, we agree with the trial court that PPI has shown no compelling reason for its six-year delay. There is no evidence in the original court records to support PPFs assertion that settlement discussions between the parties have stalemated the progress of this litigation, or that PPI has even engaged in discovery.¹ We have already established that PPI cannot use INA’s failure to file an Answer to the Amended Complaint as an excuse for its own delay. Thus, PPI having shown no compelling reason for its delay in prosecuting its case, the second prong of the James Bros. test has been satisfied.

After a thorough review of the record, however, we find that INA has made no showing that its case was prejudiced by PPI’s delay in prosecuting its case. The third prong of the James Bros, test, the showing that prejudice has occurred to the adverse party such that it has suffered a substantial diminution of its ability to present its case at trial, has not been met. INA, in its attempt at establishing that its case was prejudiced, merely pronounced, without explanation, that prejudice is “obvious” and that “witnesses (non-specific) have dispersed and memories faded.” (R.R. at 38a). Since no explanation has been offered concerning the specific witnesses affected or the evidence that is missing due to PPI’s delay, we refuse to speculate as to whether INA has incurred substantial prejudice.

The proper grant of a non pros necessitates a separate showing of all three prongs of the James Bros. test. James Bros. v. Union Banking, supra, Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987) allocatur denied, 517 Pa. 613, 538 A.2d 496 (1988). To accept a lesser showing would be to create new law. While it is true that a lengthy delay may well impede a party’s ability to present his case, length of delay is not, in itself inherently prejudicial. In the case where prejudice to the adverse party’s case has occurred, it would not be burdensome for the moving party to make such a showing, and thus meet the criteria of the James Bros. tripartite test.

INA has failed to meet its burden of showing that it has been prejudiced in its efforts to conduct its case at trial by PPI’s delay in prosecuting. By granting a non pros without a showing of each element of the James Bros. test, the trial court committed an error of law. We therefore reverse the Order of the trial court.

Order reversed.

BROSKY, J., files a dissenting opinion.

1 . PPI refers to a deposition taken of Joseph Tice, an INA representative, on July 21, 1987. A copy of the alleged deposition has been included as part of PH's reproduced record. According to the official list of docket entries and the Allegheny County Prothonotary’s office, this deposition is not among the original documents contained in the record certified to this court. Only original papers filed in the lower court, including any transcripts and the certified copy of docket entries, constitute the record on appeal. Pa.R.A.P. 1921. An appellate court may consider only the facts which have been duly certified in the record. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974).

Furthermore, PPI admitted in its second Answer to the Petition to Dismiss filed one day after the date of the alleged deposition, that no formal discovery had been conducted and that it was unaware if any action had been taken by INA concerning the conduct of discovery.