No. 547 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 5443 January Term, 1973.
Richard S. March, Philadelphia, for appellants.
William L. Keller, Philadelphia, for appellee.
Cavanaugh, Wieand and Hoffman, JJ.
[ 318 Pa. Super. Page 394]
Where a party seeks to reinstate a complaint which has been dismissed for inactivity under Philadelphia Rule 130, is the failure to proceed excused either by difficulty experienced in marshalling evidence or by a change in counsel which took place more than a year before the action was dismissed? We conclude that neither reason is adequate and reverse the order reinstating a complaint after more than four years of inactivity.
This is not the first time this matter has been before the Superior Court. On May 8, 1981, a panel of this Court reversed an order of the trial court reinstating the complaint and remanded the matter for reconsideration in accordance
[ 318 Pa. Super. Page 395]
with the decision in International Telephone & Telegraph Corp. v. Philadelphia Electric Co., 250 Pa. Super. 378, 378 A.2d 986 (1977). On remand, Christine Stringer, the plaintiff-appellee, offered no evidence. Nevertheless, the trial court found that her failure to proceed was excusable and again reinstated the complaint. From this order the defendants, Albert J. Kaytes, Stanford Keyne, Albert J. Kaytes and Company and Kaytes and Kelsey-Barber Corporation, have taken the instant appeal.
The action was commenced by the issuance of a summons on February 2, 1973. This was followed by a complaint on March 9, 1973. On December 17, 1973, plaintiff-appellee was ordered to appear for depositions, and she did appear and was deposed on February 12, 1974. Thereafter, there was no activity whatsoever until the action was dismissed with prejudice on September 23, 1977, pursuant to Philadelphia Rule 130. On June 30, 1978, more than four years after the taking of plaintiff-appellee's depositions, she filed a petition to reinstate her action. This was denied on July 28, 1978. On August 25, 1978, plaintiff-appellee filed a petition for reconsideration. The petition was denied on November 22, 1978, but she was granted leave to file an amended petition. An amended petition was filed and then granted by the court on January 9, 1979. On appeal, the Superior Court held that the trial court had incorrectly determined that Philadelphia Rule 130 was invalid. Therefore, it reversed the order of reinstatement and remanded for reconsideration in accordance with principles set forth in International Telephone & Telegraphic Corp. v. Philadelphia Electric Co., supra. See: Stringer v. Kaytes, 286 Pa. Super. 551, 429 A.2d 660 (1981).
Philadelphia Rule 130 was adopted pursuant to Pa.Rule of Judicial Administration 1901 and provided in pertinent part as follows:
Rule 130. Disposition of Inactive Cases
(1) Whenever in any civil action a certificate of Readiness has not been filed and no proceedings have been docketed in the ...