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PENN PIPING v. INSURANCE COMPANY NORTH AMERICA (02/01/89)

filed: February 1, 1989.

PENN PIPING, INC., APPELLANT,
v.
INSURANCE COMPANY OF NORTH AMERICA



Appeal from the Order entered November 4, 1987, Court of Common Pleas, Allegheny County, Civil Division at No. GD 80-23239.

COUNSEL

Lee V. Price, Pittsburgh, for appellant.

Diane B. Quinlin, Pittsburgh, for appellee.

Brosky, Johnson and Melinson, JJ. Brosky, J., files a dissenting opinion.

Author: Johnson

[ 382 Pa. Super. Page 21]

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:

[ 382 Pa. Super. Page 22]

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 ...


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