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08/06/97 CHIMAN GOHEL AND VINA GOHEL v. MONTGOMERY

August 6, 1997

CHIMAN GOHEL AND VINA GOHEL, APPELLANTS
v.
MONTGOMERY HOSPITAL, JOSEPH BENDER, M.D., L. WIMAL PERERA, M.D., APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division at No. 90-21756. Before SALUS, J.

Before: Beck, Popovich and Montemuro, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed August 6, 1997

This is an appeal from the Order of the Court of Common Pleas of Montgomery County denying appellants' petition to open a judgment of non pros. We affirm.

When reviewing a lower court's denial of a petition to open a judgment of non pros, we must determine whether the lower court abused its discretion. Collura v. L & E Concrete Pumping, Inc., 454 Pa. Super. 572, n. 2, 686 A.2d 392, 394-95 n. 2 (1996). To open a judgment of non pros, the petitioner must demonstrate to the trial court's satisfaction that the following three elements are met: 1) a petition to open must be promptly filed; 2) the delay must be reasonably explained; 3) facts must be shown to exist which support a cause of action. Pa.R.C.P. 3051(b). Presently, there is no dispute that appellants' petition to open was promptly filed. Accordingly, we move to the second prong of our test- whether appellants' delay in prosecuting their cause of action was reasonably explained.

To determine whether there existed a reasonable explanation for the period of delay, the trial court properly applied the three-prong test of Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992). The Penn Piping test allows a trial court to enter a judgment of non pros where it finds: 1) failure to proceed diligently with reasonable promptitude; 2) a lack of a compelling reason for the delay; and 3) the delay has caused some prejudice to the adverse party, which will be presumed in cases where the delay exceeds two years. Id. at , 603 A.2d at 1008. Appellants are correct in their assertion that due diligence may be demonstrated by discovery activity not reflected on the docket, even where the period of docket inactivity exceeds two years. State of the Art Medical Products, Inc. v. Aries Medical, Inc., 456 Pa. Super. 148, 689 A.2d 957 (1997).

With those standards in mind, we review the procedural history of this case. Appellants filed a praecipe to issue a writ of summons on December 11, 1990, and a complaint on January 15, 1991. An order was entered on March 25, 1991, approving the stipulation of all parties involved to amend the complaint. During the period between April of 1991 and August of 1992, appellees filed their answers to the complaint and various cross-claims, new matters, and replies among each other.

On January 25, 1993, appellee-Montgomery Hospital filed a motion asking the court to set a deadline for all expert depositions to be completed within 90 days because the suit was, at that point, over two years old, and appellants had not obtained any additional expert opinions since the suit commenced. *fn1 Appellants filed a response to this motion on February 23, 1993, in which they argued that due to the complex nature of this case, the court should allow an additional 240 days for them to depose their experts. After oral arguments, the court entered an order on May 14, 1993, which granted appellants 180 days to prepare their final experts' reports.

From the entry of the discovery order on May 14, 1993, until March 1, 1996, 33 months later, there was no further docket activity except two entries of appearance filed by new counsel when appellants twice retained new counsel within the same law firm. *fn2 On March 1, 1996, counsel for appellee, Dr. Bender, filed a motion for entry of judgment non pros. Likewise, appellees, Dr. Perera and Montgomery Hospital, filed motions for entry of judgment of non pros on March 7 and March 8, 1996, respectively. On March 25, 1996, appellants filed responses claiming these motions were premature. Nevertheless, the court granted these motions on May 31, 1996, and entered the judgment of non pros on June 3, 1996.

Appellants filed a petition to open the judgment of non pros on June 17, 1996. Appellees filed answers to appellants' petition, and argument on appellants' petition was held on November 13, 1996. The court denied appellants' petition by order dated November 16, 1996, and this appeal followed.

Appellants claim that they have proceeded diligently with their cause of action during the 33 month period of docket inactivity by taking part in "extensive discovery" which does not appear on the docket. Specifically, appellants direct our attention to the following: On November 23, 1993, they forwarded supplemental answers to expert interrogatories in which they named an additional expert, Dr. Eugene Spitz. The deposition of appellee, Dr. Perera, was scheduled for January 21, 1994, but was cancelled due to inclement weather. *fn3 Finally, on January 26, 1994, appellants deposed appellee, Dr. Bender. Appellants do not indicate any other steps which they took to move their case forward between January 26, 1994, to March 1, 1996, a period of 25 months.

As previously stated, we agree that due diligence in prosecuting one's cause of action may be demonstrated by activity not reflected on the docket, even where the period of docket inactivity exceeds two years. State of the Art Medical Products, (supra) . In State of the Art Medical, (supra) , we considered an argument similar to that of appellants and held that the limited nature of the exchange of four discovery matters was not sufficient to show due diligence in light of the fact that there was over two years of docket inactivity. Id. at , 689 A.2d at 963.

Similarly, in this case, we find that appellant's limited discovery activity is insufficient to prove due diligence in light of 33 months of docket inactivity. All discovery activity indicated by appellants took place on or before January 26, 1994, and cannot be used as evidence of due diligence during the 25 months of delay which followed. We therefore find that the trial court ...


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