State of the Art Medical Products, Inc. v. Aries Medical, Inc.

689 A.2d 957
CourtSuperior Court of Pennsylvania
DecidedFebruary 24, 1997
DocketNo. 244
StatusPublished

This text of 689 A.2d 957 (State of the Art Medical Products, Inc. v. Aries Medical, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of the Art Medical Products, Inc. v. Aries Medical, Inc., 689 A.2d 957 (Pa. Ct. App. 1997).

Opinion

DEL SOLE, Judge:

This is an appeal from a trial court order which denied Appellant’s petition for relief from a judgment of non pros. The trial court concluded that Appellant failed to establish a reasonable explanation or legitimate excuse for its inactivity in prosecuting this case under the three prong test set forth in Penn Piping Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992). Appellant criticizes the trial court ruling by arguing that the Court misinterpreted the decision in Penn Piping by refusing to consider evidence of pre-trial discovery which was not reflected on the docket. Appellant also alleges that it was able to rebut any presumption of prejudice created by over two years of docket inactivity. Finding no merit to these claims, we affirm.

This action was commenced on July 20, 1989, when Appellant filed a Complaint alleging, inter alia, claims for breach of contract and tortious interference with contract. Further pleadings were filed and discovery was instituted. However, from September 17,1990, to May 4,1992, no entries appeared on the docket. In May of 1992 a Stipulation of Confidentiality and Order of Court were filed, then in April and May of 1993 further discovery matters were docketed. Thereafter, for a period in excess of two years, from May 24, 1993 to June 19, 1995, again no entries were made on the docket. On July 3, 1995 Appellees filed a joint motion for a judgment of non pros. The trial court heard argument and then granted Appellees’ motion and dismissed Appellant’s complaint with prejudice. Appellant filed a petition for relief from judgment of non pros, which was denied. This timely appeal followed.

A trial court, when presented with a petition which seeks to open a judgment of non pros, must determine whether the plaintiff has established: (1) that the petition is timely filed; (2) that there is a reasonable explanation or legitimate excuse for the inactivity or delay; and (3) that there is a meritorious cause of action. Pa.R.C-P. 3051(b). The trial court ruled that Appellant failed to satisfy the second prong of the test since it determination the court looked to the three-part test set forth in Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992).

The Pennsylvania Supreme Court’s decision in Penn Piping sought to further define 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). Therein the court announced that a court may properly enter a judgment of non pros 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; and (3) the delay has caused some prejudice to the adverse party. In Penn Piping, the court examined the prejudice element and held 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.” Penn Piping Inc. v. Insurance Co. of North America, at 356, 603 A.2d at 1009.

The trial court in this case applied the Penn Piping test to the facts before it and found that Appellant failed to pursue the case with due diligence, that Appellant had not demonstrated any compelling reason for the delay and that the delay could be presumed prejudicial because there was no activity on the docket for a period of more than two years. Accordingly, the trial court ruled [960]*960that there was no reasonable explanation or legitimate excuse for the inactivity and denied Appellant’s petition for relief from the judgment of non pros. Appellant argues that the court erred in presuming prejudice in this case where there was discovery activity taking place, although it was not reflected on the docket. In the alternative, Appellant contends that even if prejudice is presumed it was able to rebut that presumption with evidence establishing that no actual prejudice occurred as a result of the delay.

First, we examine the novel question of whether a court is to consider only docketed activity when applying the Penn Piping prejudice test. Appellant argues that where a plaintiff can demonstrate that it has engaged in discovery which is not reflected on the docket, there is no delay pursuant to Penn Piping. Appellant notes that the parties exchanged four discovery items, primarily interrogatories, during the two-year period in which no activity appears on the docket. Appellant maintains that this discovery activity should be considered by the court, although not reflected on the docket, and should, in effect, interrupt the period of delay. Since under this scenario two years did not lapse without any activity taking place, Appellant argues that it was an error to presume prejudice.

We cannot accept Appellant’s argument. The court in Penn Piping was clear that it was referring to a two year time period in which there was no activity on the docket. The court specifically stated “if the delay is for two years or more, the case may be dismissed for lack of activity on the docket.” Id. (emphasis added.) The rule set forth in Penn Piping is unambiguous and easy to apply. The trial court must look to the docket to determine if there is any indication of activity. It is the plaintiffs duty to move the case forward and to monitor the docket to reflect that movement. If there is no evidence of activity appearing on the docket for a period in excess of two years, under the standard of Penn Piping prejudice can be presumed.

Appellant argues that such a literal reading of Penn Piping should not occur because local rules as well as constitutional provisions require a trial court to consider discovery activity off the docket. Appellant first cites to Montgomery County Local Rule 406 which directs the prothonotary to prepare an annual list of all civil cases in which no activity appears on the docket for two years or more. Notice is to be given in these cases and they are to be marked terminated unless an Activity Status Certificate is filed. The Activity Status Certificate can advise the prothonota-ry that there has been discovery activity off the docket. Appellant reasons that this same recognition of non docketed activity must occur before granting a judgment of non pros. In support of its claim Appellant cites to Streidl v. Community General Hospital, 529 Pa. 360, n. 2, 603 A.2d 1011, 1012, n. 2 (1992), wherein the court stated, “[i]t does not matter whether the prothonotary notifies the parties of its intent to terminate the case, or whether the non-delaying party petitions for dismissal; the same standards apply.” Appellant reasons that if the same standards apply regardless of whether the matter is initiated by the prothonotary or on a party’s motion for non pros, then a non pros cannot be entered without considering discovery activity off the docket, as is done -under local Rule 406.

Appellant misreads the holding of Streidl and mistakenly deduces from that reading an additional element for a court to consider when ruling on a non pros motion. In Streidl,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Herb v. Snyder
686 A.2d 412 (Superior Court of Pennsylvania, 1996)
Dorich v. DiBacco
656 A.2d 522 (Superior Court of Pennsylvania, 1995)
Pennridge Electric, Inc. v. Souderton Area Joint School Authority
615 A.2d 95 (Superior Court of Pennsylvania, 1992)
Rockwood Insurance v. Motor Coils Manufacturing Co.
646 A.2d 705 (Commonwealth Court of Pennsylvania, 1994)
Penn Piping, Inc. v. Insurance Co. of North America
603 A.2d 1006 (Supreme Court of Pennsylvania, 1992)
Streidl v. Community General Hospital
603 A.2d 1011 (Supreme Court of Pennsylvania, 1992)
James Bros. Co. v. Union B. & T. Co. of DuBois
247 A.2d 587 (Supreme Court of Pennsylvania, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
689 A.2d 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-the-art-medical-products-inc-v-aries-medical-inc-pasuperct-1997.