PENN PIPING, INC., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA.
Superior Court of Pennsylvania.
Feb. 1, 1989.
Reargument Denied March 20, 1989.
554 A.2d 925
Argued June 28, 1988.
Appellant‘s final complaint is that the trial court improperly curtailed his direct examination. Appellant‘s attorney wanted to ask him historical questions, such as who was President during the civil war. This would have allegedly demonstrated appellant‘s limited intelligence, thus establishing why he did not go to the police following the murder. (As a witness, appellant should have gone to the police.) We affirm the trial court‘s decision. The questions concerned historical data irrelevant to the issues in the case and to which appellant easily could have fabricated his ignorance of the correct response.
Judgment of sentence affirmed.
Diane B. Quinlin, Pittsburgh, for appellee.
Before BROSKY, JOHNSON and MELINSON, JJ.
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
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:
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
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
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
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 PPI‘s 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 estab-
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.
Order reversed.
BROSKY, J., files a dissenting opinion.
BROSKY, Judge, dissenting:
I agree with the majority‘s findings that the record exhibits a lack of due diligence on the part of appellant in failing to proceed with the instant litigation and that appellant has neglected to demonstrate a compelling reason for not doing so. My disagreement with the majority focuses on the third prong of the test—a demonstration of prejudice to the adverse party.
Appellee contends, without supporting case law, that this show of prejudice is unnecessary. This assertion is incorrect, for prevailing case law has established that the party seeking dismissal for failure to prosecute carries the burden of proving that a substantial dimunition of its ability to present its case at trial exists. Moore v. George Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983), citing American Bank & Trust Co. v. Ritter, Todd and Haayen, 274 Pa.Super. 285, 418 A.2d 408 (1980).
The instant litigation involves a dispute between the parties arising from appellee‘s alleged refusal to perform on bonds issued to guarantee completion of several construction projects for which appellant had subcontracted and to pay material suppliers in the event appellant could not fulfill its obligations. The projects which involved the bonds at issue spanned the years 1974, 1975 and 1976. Since the genesis of this litigation in 1980, no discovery has been undertaken.
I find it difficult to comprehend, in the absence of any discovery since the inception of this litigation, how, twelve
I would hold that a lack of prosecution for as long as or longer than the applicable statute of limitations for commencement of an action, absent a compelling reason therefor, constitutes such substantial dimunition of a party‘s ability to present its case at trial as to satisfy the requisite showing of prejudice, especially where it is demonstrated by appellant‘s admission that appellee was duty-bound to move forward with the case, coupled with appellant‘s shunning of the Rules of Civil Procedure designed to prompt a recalcitrant defendant to answer the suit filed against it. To hold otherwise would obviate the necessity of and pay mere lip service to the purpose of a limitations period, which is to guard against stale claims and faded memories. A contrary holding would also place this court‘s imprimatur on inactive, long-pending suits merely upon the non-showing of a separate allegation of prejudice. The equities governing the grant of a non pros would give way to a hypertechnical
As stated earlier, the instant litigation centers around appellee‘s alleged default in performance and payment bonds relative to construction work performed by appellant in 1974, 1975 and 1976. Suit was commenced in September 1980, by a writ of summons. On June 12, 1981, an Amended Complaint was filed. No activity in pursuance of this suit appears as a matter of record from that date until June 16, 1987, when appellee filed its Petition to dismiss for inactive prosecution. The time from the filing of appellant‘s Amended Complaint to the date of appellee‘s Petition for dismissal represents an unexplained hiatus of six years absent a compelling reason therefor, a want of diligent prosecution and is well beyond the one-year statutory period of limitations for commencement of an action upon any payment or performance bond. See
The standard for appellate review of a trial court‘s grant of a non pros or dismissal for lack of prosecution has been stated as follows:
It is well settled law that the question of granting a non pros because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower Court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof.
Carroll, supra, 362 Pa. Superior Ct. at 436-37, 524 A.2d at 956; Moore, supra, 321 Pa.Superior Ct. at 228-29, 467 A.2d at 1337, both quoting Gallagher v. Jewish Hospital Ass‘n., 425 Pa. 112, 112, 113, 228 A.2d 732, 733 (1967). From the above, it appears that the scope of our review is narrowly confined to a determination of whether the trial court‘s action constitutes a manifest abuse of its broad discretion to grant a non pros or dismissal based upon unreasonable, unexplained delay. See Carroll, supra, citing Gallagher, supra.
Without a doubt, the trial court did not abuse its discretion in dismissing the instant suit on the basis of inactive
Moreover,