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December 9, 1997


Appealed From No. 91-00636. Common Pleas Court of the County of Lycoming. Judge SMITH, President Judge.

Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty


FILED: December 9, 1997

Maxine L. Wasson (Plaintiff), Executrix of the Estate of Roy E. Walters, appeals from an order of the Court of Common Pleas of Lycoming County (trial court), dated February 26, 1997, denying Plaintiff's Petition for Relief of Judgment of non pros which was entered on October 24, 1996. We reverse.

On Sunday, November 19, 1989, Roy E. Walters (Decedent), with a blood alcohol level of .26, left the bar at the Loyalsock Hotel, which is owned and operated by defendant Mary Temple (Temple), and sustained fatal injuries when he was struck by a truck while crossing a road to get to his car.

Plaintiff commenced this action by filing a praecipe for a writ of summons on March 27, 1991. On June 12, 1991, Plaintiff filed a complaint. The trial court records reveal an active docket until February 14, 1992, which was the last date of recorded docket activity until September 26, 1994. The uninterrupted period of docket inactivity endured for two years and seven months. During this time, however, Plaintiff did pursue undocketed discovery by seeking answers to interrogatories from the defendants.

After the September 1994 docket entry, Plaintiff changed counsel who actively pursued prosecuting the case for one year and seven months, as reflected by the docket entries, between September 1994 and April 1996. The trial court held a conference on February 1, 1996 and entered a scheduling order setting the trial date for September of 1996. Thereafter, on April 26, 1996, Plaintiff scheduled depositions for two defendants and a witness for May 13, 1996. Defendant Temple requested the depositions be postponed until May 16, 1996, and then, on May 13, 1996, the date originally scheduled for the depositions, filed a petition for non pros. Nevertheless, three or more depositions were taken by Plaintiff and others by defendant McClintock on May 16, 1996, and the case proceeded toward the scheduled trial in September of 1996. Then on October 24, 1996, the trial court granted the petitions for non pros in the case sub judice. *fn1 Pursuant to Pa. R.C.P. 3051, Plaintiff filed a timely petition for relief from judgment of non pros which the trial court subsequently denied by order dated February 26, 1997. Consequently, Plaintiff appealed the matter to this court. *fn2

The sole issue for our consideration is whether the trial court committed a manifest abuse of its equitable discretion by granting the defendants' petition for judgment of non pros.

Plaintiff argues that the defendants in the instant matter are not entitled to a judgment of non pros because the defendants are estopped from seeking equitable relief of non pros for failure to prosecute because they delayed an additional one year and seven months before moving for judgment of non pros after they knew that Plaintiff had changed counsel and was actively prosecuting the case, during which time Plaintiff invested time and large sums of money in discovery and other legal matters. Plaintiff argues that the defendants sought the equitable relief of non pros from the trial court with unclean hands.

When a party files a petition for a judgment of non pros, that party is seeking equitable relief which is based on the equitable doctrine of laches. James Bros. Lumber Co. v. Union Banking and Trust Co., 432 Pa. 129, 247 A.2d 587, 590 (1968). A court of common pleas has the inherent power to dismiss a case for lack of activity on the docket, Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 354, 603 A.2d 1006, 1008 (1992), and the analysis for a judgment of non pros is the same whether the motion is brought by the defendant or whether it is brought sua sponte by the court. Mudd v. Nosker Lumber, Inc., 443 Pa. Super. 483, 489, 662 A.2d 660, 662 (1995).

In Penn Piping, our Supreme Court stated that a court may exercise its discretion and enter a judgment of non pros when the following conditions exist: (1) a party has shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there is no compelling reason for the delay; and (3) the delay has caused prejudice to the adverse party. Penn Piping, 529 Pa. at 354, 603 A.2d at 1008. The Penn Piping Court, however, also held that, although a defendant normally must show that he was actually prejudiced, in cases that have been delayed for a period of two years or more, there is a presumption that the defendant has been prejudiced, and the defendant need not show actual prejudice for purposes of dismissing the case for lack of docket activity. Id. at 356-57, 603 A.2d at 1009. A plaintiff may rebut the presumption of prejudice with a compelling reason for delay. *fn3 Id.

In Mudd, after two years and nine months of docket inactivity, the defendant requested plaintiff to obtain a continuance the day before trial, purportedly to negotiate a settlement. One month later defendant moved for non pros. The Superior Court held that "where the circumstances indicate that the party seeking non pros has come to the court of equity with unclean hands, that party is estopped from obtaining this equitable remedy." Mudd, 443 Pa. Super. at 486, 662 A.2d at 661. The Mudd court concluded that the rebuttable presumption of prejudice, which arises from a delay that extends for at least two years, can be rebutted not only when the plaintiff establishes compelling reasons for the delay, but also when the conduct of the defendant contributed to the delay. Id. at 489-91, 662 A.2d at 663. The Superior Court, in Mudd, recognized that the principle underlying the grant of non pros is to ensure that plaintiffs do not take advantage of defendants through dilatory tactics and stated that this principle equally applies to defendants who delay the progress of a case in bad faith. Id. at 491, 662 A.2d at 663. In this regard, the Mudd court stated the following:

It is simply unreasonable to accept the proposition that the appellees [defendants] were somehow prejudiced by the delay in prosecution when they themselves requested additional delays. Our Supreme Court's decision in Penn Piping v. Insurance Co. of North America, (supra) , was meant to protect defendants from the unfairness, anxiety and prejudice that can result from a plaintiff's failure to pursue a threatened lawsuit. . . . We are hard-pressed to accept the notion that our Supreme Court, in establishing the "presumption of prejudice" in that ...

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