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11/10/97 ANDREW MATUSOW AND SHARON MATUSOW v.

November 10, 1997

ANDREW MATUSOW AND SHARON MATUSOW, APPELLANTS
v.
MARVIN ZIEGER AND KAREN AND GERALD LUFF AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION



Appealed From No. 82-03990. Common pleas Court of the County of Montgomery. Judge ALBRIGHT.

Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Samuel L. Rodgers, Senior Judge. Senior Judge Rodgers concurs in the result only.

The opinion of the court was delivered by: Pellegrini

OPINION BY JUDGE PELLEGRINI

FILED: November 10, 1997

Andrew and Sharon Matusow (Plaintiffs) appeal from an order of the Court of Common Pleas of Montgomery County (trial court) terminating their case pursuant to Pa. R.J.A. No. 1901 (Rule 1901) and Montgomery County Local Rule 406 (Local Rule 406) for lack of docket activity.

The Plaintiffs were passengers in a vehicle driven by Defendant Marvin Zieger traveling on a state highway when their vehicle hit a patch of ice and skidded into the oncoming car owned by Defendant Karen Luff and driven by Defendant Gerald Luff. On March 18, 1982, the Plaintiffs filed a complaint against Zieger and the Luffs for negligently operating their vehicles, as well as against Defendant Pennsylvania Department of Transportation (The Department) for negligently maintaining its highway.

Because no docket activity occurred between August of 1986 and August of 1988, pursuant to Local Rule 406, *fn1 on March 15, 1988, the Prothonotary of the Court of Common Pleas of Montgomery County sent to Plaintiffs' counsel a notice of intent to terminate the action for lack of docket activity. In response, the Plaintiffs filed a timely Activity Status Certificate and the case was not terminated. Counsel for the Plaintiffs then certified the case ready for trial and it was placed on the April 11, 1990 trial list.

Because of this court's then recent decision in Crowell v. City of Philadelphia, 131 Pa. Commw. 418, 570 A.2d 626 (Pa. Commw. 1990), reversed, 531 Pa. 400, 613 A.2d 1178 (1992), *fn2 The Department filed a motion for summary judgment contending that it could not be liable when a joint tortfeasor was involved, i.e., the other Defendants, in this case. Because a petition for allowance of appeal had been granted, the trial court, by order dated June 20, 1990, with the agreement of the parties, removed the case from the trial list and deferred the summary judgment motion until our Supreme Court decided Crowell. On June 17, 1992, the Supreme Court subsequently rendered its opinion in Crowell. *fn3

Even though the summary judgment motion was still pending, the Prothonotary, on June 21, 1993, issued a second notice of intent to terminate for lack of docket activity because no activity had occurred on the docket for more than two years. It was mailed to the Plaintiffs' counsel but was returned undelivered because he had moved his office and had not complied with Montgomery County Local Rule 1012(c) (Local Rule 1012) that requires an attorney to notify the Court Administrator of a change of address. *fn4 Not receiving an Activity Status Certificate, on July 26, 1993, without giving notice by publication, the Prothonotary terminated the action for inactivity.

On January 2, 1996, approximately 30 months after the case was terminated, the Plaintiffs filed a Motion to Strike Termination and Reinstate Case as Active Case claiming that the Rule 1901 notice requirements had not been met. The court held that the lack of docket activity was not excused by The Department's outstanding motion for summary judgment because the burden was always on the Plaintiffs as plaintiffs to move the case forward. Reasoning that the failure to receive notice was due to the Plaintiffs' counsel's failure to notify the Court Administrator of his change of address, the trial court denied the motion and this appeal followed. *fn5

To rid clogged judicial dockets of cases that show a lack of docket activity, Rule 1901 authorizes the courts of common pleas to terminate cases on their own motion where they have been inactive for an unreasonable period of time. Rule 1901(c) also provides what notice must be given before a case can be terminated. In relevant part, it provides:

The parties shall be given at least 30 days written notice of opportunity for hearing on such proposed termination, which notice shall be given:

(1) In person or by mail to the last address of record of the parties or their counsel of record and setting forth a brief identification of the matter to be terminated; or

(2) By publication in the manner provided for by rule of court in the legal newspaper designated by rule of court for the publication of legal notices in any case where notice by mail ...


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