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Kane v. Vigunas

February 13, 2009

DARRYL KANE, INDIVIDUALLY AND ON BEHALF OF NEXUS PROFESSIONAL ASSOCIATES, INC., APPELLANTS
v.
MICHAEL A. VIGUNAS, LAURA DOUGLAS AND MAX INTERNATIONAL CONVERTERS, INC., JERRY SHENK AND D & E COMMUNICATIONS, INC., APPELLEES



Appeal from the Order entered November 29, 2007, In the Court of Common Pleas of Lancaster County, Civil, No. CI-02-10790.

The opinion of the court was delivered by: McEWEN, P.J.E.

BEFORE: PANELLA, CLELAND, JJ., and McEWEN, P.J.E.

OPINION

¶ 1 Appellant, Darryl Kane, individually and on behalf of Nexus Professional Associates, Inc., appeals from the order that refused to reinstate a civil action that had been terminated on grounds of inactivity.

We are compelled to reverse and remand this case for further proceedings.

¶ 2 The fundamental facts underlying this appeal are not disputed. Appellant, plaintiff below, initiated a civil action in the Court of Common Pleas of Lancaster County by filing a praecipe for a writ of summons in December of 2002. Appellant subsequently filed a complaint in March of 2003. Thereafter, the following pleadings were filed: preliminary objections and responses thereto, amended complaints, answers and new matter, and replies to new matter with cross claims. The pleadings were closed on May 6, 2004. In the ensuing months the parties engaged in some discovery, but no further docket activity took place. As a consequence, on May 12, 2006, more than two years after the last docket entry, the Prothonotary for the Court of Common Pleas of Lancaster County, pursuant to Pa.R.C.P. 230.2, issued a notice of intent to terminate an inactive case. Significantly, the notice of intent to terminate was not placed in the United States mail, but was, instead, placed into a mail slot designated for appellant's counsel that was located in the Prothonotary's office.*fn1 Thereafter, no further docket activity occurred. As a result, on August 16, 2006, the case was terminated by the Prothonotary on grounds of inactivity, and, at some undetermined point after August 16, 2006, notice of the termination of civil action was also placed in plaintiff's counsel's court house "mail" slot.*fn2

¶ 3 Counsel for appellant, in January of 2007, discovered that the action had been terminated when he contacted counsel for appellees in an attempt to schedule a deposition.*fn3 Consequently, on January 11, 2007, counsel for appellant filed a petition to reinstate the cause of action, in which he argued, inter alia, that he had never received either the notice of the court's intent to terminate, or the order of termination. Appellees objected, and the trial court thereafter entertained written and oral arguments of the parties.

When the trial court denied the petition to reinstate the action, this appeal followed.

¶ 4 Appellant, in the brief filed in support of this appeal, sets out the following questions for our review, which we have rephrased in the interest of clarity:

Whether the trial court erred or abused its discretion when it ruled that the Prothonotary properly served the notice of intent to terminate appellant's civil action in accordance with Pa.R.C.P. 230.2?

Whether the trial court erred or abused its discretion when it failed to find that there was sufficient activity on the record to preclude dismissal under Pa.R.C.P. 230.2(a)?

See: Brief of Appellant, p. 4.

¶ 5 Our review of the decision of the trial court to deny a petition to reinstate a terminated case is limited to determining whether the trial court abused its discretion or committed an error of law. See: Samaras v. Hartwick, 698 A.2d 71, 72 (Pa.Super. 1997).

¶ 6 Rule 230.2 of the Pennsylvania Rules of Civil Procedure provides in relevant part:

Rule 230.2. Termination of Inactive Cases

(a) The court may initiate proceedings to terminate a case in which there has been no activity of record for two years or more by serving a notice of proposed dismissal of court case.

(b) (1) The court shall serve the notice on counsel of record, and on the parties if not represented, sixty days prior to the date of the proposed termination. The notice shall contain the date of the proposed termination and the procedure to avoid termination.

(2) The notice shall be served by mail pursuant to Rule 440.*fn4 If the mailed notice is returned, the notice shall be served by advertising it in the legal publication, if any, designated by the court for the publication of legal notices or in one newspaper of general circulation within the county.

(c) If no statement of intention to proceed has been filed, the prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute.*fn5

(d) (1) If an action has been terminated pursuant to this rule, an aggrieved party may petition the court to reinstate the action.

(2) If the petition is filed within thirty days after the entry of the order of termination on the docket, the court shall grant the petition and reinstate the action.

(3) If the petition is filed more than thirty days after the entry of the order of termination on the docket, the court shall grant the petition and reinstate the action upon a showing that

(i) the petition was timely filed following the entry of the order for termination and

(ii) there is a reasonable explanation or a legitimate excuse for the failure to file both

(A) the statement of intention to proceed prior to the entry of the order of termination on the docket and,

(B) the petition to reinstate the action within thirty days after the entry of the order of termination on the docket.

Pa.R.C.P. 230.2.

¶ 7 It is essential to recognize, at the outset of a discussion of the proper means of terminating inactive civil actions, that Rule 230.2 "was promulgated in response of the decision of the [Pennsylvania] Supreme Court in Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998)," wherein that Court held that before a case could be terminated as a matter of judicial administration, a showing of "prejudice to the defendant as a result of delay in prosecution is required." See: Pa.R.C.P. 230.2, Explanatory Comment-- 2003. See also: Shope v. Eagle, supra, 551 Pa. at 367, 710 A.2d at 1108. Thus, the history preceding enactment of the Rule suggests that the Supreme Court does not favor the termination of otherwise viable cases based on the mere lack of docket activity. See generally: Florig v. Estate of O'Hara, 912 A.2d 318 (Pa.Super. 2006), appeal denied, 593 Pa. 740, 929 A.2d 1162 (2007) (lack of docket activity for six years did not preclude opening of judgment of non pros in light of intervening settlement negotiations.). It also bears emphasis that Rule 230.2 requires two separate notices, but only specifies the method of service of the first step in the termination process, namely, the notice of intent to terminate. See:

Footnote 5, supra. With these considerations in mind, we will examine the events giving rise to this appeal.

¶ 8 The parties' respective interpretations of Rule 230.2 as it relates to the notice of intent to terminate a civil action can be succinctly stated: appellant emphasizes that part of Rule 230.2 which states that a notice of termination "shall be served by mail," and contends that that language mandates that any such notices be sent by United States mail, while appellees argue that the "served by mail" language is modified by the "pursuant to Rule 440" language, and that Rule 440 permits the "mail" requirement to be met by the use of "a mailbox in the prothonotary's office" as provided in the notes to Rule 440.

¶ 9 The trial court accepted appellees' interpretation and held that the testimony of the Chief Deputy of the Office of the Prothonotary that she placed the required notices in appellant's counsel's designated court house mail slot constituted proof of adequate notice. However, following our review of the record and the relevant law, we are compelled to the conclusion that, despite the surface appeal of the interpretation rendered by the trial court, the system employed by the Office of the Prothonotary of Lancaster County, because it lacked a means of verification as to when the notice of intent to terminate was actually served, failed to satisfy the intent of the drafters of Rule 230.2 that a case not be terminated without fair notice to the affected parties.

¶ 10 We commence our examination of this issue by reference to the applicable rules of interpretation and construction, which provide:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Pa.R.C.P. 126.

Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be ...


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