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decided: June 28, 1976.



Gerald C. Grimaud, Tunkhannock, for appellants.

James E. Davis, John B. Farr, Tunkhannock, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion in which Watkins, President Judge, joins.

Author: Cercone

[ 241 Pa. Super. Page 361]

This is an appeal from a judgment of non pros entered against plaintiffs, John and Elizabeth Richards, in favor of defendants, John E. and Margaret G. Swift. The facts are as follows. On March 22, 1952 defendants entered into an agreement situated at Lake Winola to defendants for consideration of $6,000. On March 26, 1952 defendants entered into an agreement to convey back to plaintiffs the same property within two years for consideration of $6,000. For reasons unimportant to the instant appeal, defendants would not convey the property back to plaintiffs and, on September 24, 1954, plaintiffs filed a complaint in equity asking for specific performance. On December 16, 1954 defendants filed an answer and trial commenced on June 1, 1955 before the Honorable Edward B. Farr. Testimony of the trial was transcribed and filed on August 1, 1955. Within five months Judge Farr retired without disposing of the matter. For nineteen years the matter laid dormant, until October 10, 1974, when defendants filed a petition for non pros and a rule was issued against plaintiffs to show why the case should not be non prossed. Plaintiffs filed their answer on December 17, 1974 and on December 18, 1974 a hearing was held. An order entered June 7, 1975 granted defendants' request for a judgment of non pros. It is from this order which plaintiffs now appeal to this court.

The law as to when a non pros may be granted is clear. Three conditions must be present (1) the plaintiff must have failed to prosecute his action within a

[ 241 Pa. Super. Page 362]

    reasonable time; (2) there must be no reasonable excuse for the delay; and (3) the delay must have been prejudicial to the defendant. James Bros. Co. v. Union B. & T. of DuBois, 432 Pa. 129, 247 A.2d 587 (1968); Gaito v. Matson, 228 Pa. Super. 288, 323 A.2d 753 (1974); Rizzo v. Pittsburgh Railways Co., 226 Pa. Super. 566, 323 A.2d 174 (1974). It is also clear that a decision granting a judgment of non pros is soundly within the discretion of the lower court and such decision will not be reversed absent manifest abuse of discretion. Gallagher v. Jewish Hosp. Assn. of Phila., 425 Pa. 122, 228 A.2d 732 (1967).

Because of the length of the delay in the instant case the first condition does not warrant extensive discussion. Admittedly the plaintiffs promptly filed their complaint and saw that the matter went to trial. However, after trial their prosecutorial promptness substantially diminished. They allowed the case to lie dormant for nineteen years. This delay is unreasonable. While we agree the court must accept some degree of fault, this did not relieve plaintiffs from the duty to press on with their case. As was stated in Waring Bros. & Co. v. Pa. R.R. Co., 176 Pa. 172, 178, 35 A. 106, 108 (1896): "[I]t is the plaintiff's duty to proceed with his cause within a reasonable time. He is the actor, and must act, or fail." The fact that the lower court did not decide the matter after trial did not relieve the plaintiffs of this responsibility to proceed with the case. This is particularly significant when the delay could have been easily avoided and remedied by simply bringing the fact that a decision had not been rendered to the attention of the lower court. Accordingly, we hold that plaintiffs did not prosecute their action within a reasonable time.

The second condition needed for granting a non pros, i. e., that there exists no reasonable excuse for the delay, is also easily disposed of in that the only excuse offered by plaintiffs is that their attorney was responsible for

[ 241 Pa. Super. Page 363]

    the delay. We are aware of the line of cases in which mistake, oversight or neglect of counsel has been held to excuse a delay. See Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Stephens v. Bartholomew, 422 Pa. 311, 220 A.2d 617 (1966); Manson v. First National Bank, 366 Pa. 211, 77 A.2d 399 (1951); Johnson v. Yellow Cab Co. of Phil., 226 Pa. Super. 270, 307 A.2d 423 (1973); Poluka v. Cole, 222 Pa. Super. 500, 295 A.2d 132 (1972); Cinnaminson Park Co. v. Laws, 63 Pa. Super. 189 (1916). However, in the instant case we do not have a situation where an attorney missed a filing date by a few hours and in turn jeopardized a valuable cause of action for his unknowing client. Here we have a delay of almost two decades during which time plaintiff took no action whatsoever. Such a situation leads to the inescapable conclusion that plaintiffs themselves abandoned their cause of action.

As to the third condition, that the delay was prejudicial to the defendants, plaintiffs raise several arguments. First, plaintiffs contend that testimony of prejudice to the defendants should not have been introduced into evidence because no averments of prejudice appeared in defendants' petition for non pros and, therefore, plaintiffs were not prepared to argue this issue at the hearing. While we do not wish to encourage the use of inarticulately drawn petitions, we nevertheless cannot accept plaintiffs' contention that he was justified in being unprepared to argue the issue of prejudice due to the complained of omission from the petition. We reach this conclusion for several reasons. First, the law as to when a non pros may be granted is clear. Three conditions must be present, one of which is as mentioned above, prejudice to the defendant. James Bros. Co. v. Union B. & t. Co. of DuBois, supra; Gaito v. Matson, supra; Rizzo v. Pittsburgh Railways Co., supra. A mere

[ 241 Pa. Super. Page 364]

    cursory review of the law relating to non pros would have revealed that defendant was required to show prejudice. Accordingly plaintiff cannot claim surprise when evidence as to the required element of prejudice was introduced. Secondly, the mere fact that a nineteen-year delay is alleged, in itself, impliedly and obviously raises the question of prejudice. Thirdly, defendants state in their brief to this court:

"Local Rules for the 44th Judicial District require that the parties to a dispute of this nature file briefs in advance of hearing. Appellant's counsel filed a detailed brief prior to hearing in which sub-heading 'C' was entitled 'Defendant Must Be Prejudiced by the Delay Before He May Succeed on His Petition for Nonpros.' This section of the [hearing] brief cited many of the same cases relied on by both appellants and appellees [on this appeal] to the effect that damage or prejudice must be shown for laches to apply. Appellees had also filed a brief prior to hearing covering the issues of damage and prejudice as a result of the delay in prosecution."

In light of the above we cannot accept plaintiffs' argument that they were unprepared to argue the issue of prejudice due to the complained of omission from the petition.

Lastly, plaintiffs contend that the defendants have not actually suffered prejudice by the delay in this case. They argue that the testimony on the specific performance issue is complete, and that the delay will not prejudice the defendant's case due to missing witnesses, lapses of memory or lost documents. While plaintiff is correct as to the lack of prejudice relating to the trial of the case, they fail to consider the broader types of prejudice which result from a delay of this nature. During this nineteen year delay the value of the property in question has risen from $6,000.00 to over $15,000.00. Furthermore, defendants have performed extensive and costly

[ 241 Pa. Super. Page 365]

    renovations and repairs to the premises in the belief that plaintiffs had abandoned their claim. The courts cannot allow a claim which has laid dormant for almost two decades to be reasserted after increases in property value and extensive improvements have made the property ...

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