In 1992, the Pennsylvania Supreme Court decided Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A2d 1006 (1992). The holding in Penn Piping which upheld a dismissal of plaintiff's case due to prejudice to the Defendant for Plaintiff's failure to prosecute the case as evidenced by no docket activity for two years caused defense counsel throughout the Commonwealth of Pennsylvania to inventory their cases to see how long each case had been in suit without docket activity.
Presumption of Prejudice
Penn Piping stood for the proposition that, 2 or more years of no docket activity, was presumptively prejudicial to the defendant and would in part form the basis for the entry of an Order of Dismissal of Plaintiff's case.
Following the decision, defendant's lawyers scrambled to file motions for non pros (to dismiss actions) and plaintiff's lawyers scrambled to certify cases for trial or show docket activity in cases that had been in suit for nearly 2 years or more.
While there were certain exceptions under the Rule announced in Penn Piping, bankruptcy, liquidation and awaiting significant developments in the law, Penn Piping held that a 2 year delay was automatically presumed to be prejudicial to the defendant and unless the plaintiff could overcome that presumption with a compelling reason for the delay, the case would be dismissed.
On April 2, 1998, the Pennsylvania Supreme Court decided 3 cases which have defined the analysis under which a trial court must measure the appropriateness of ordering a case dismissed for lack of prosecution and specifically abandoned the Penn Piping Rule that there is a presumption of prejudice to the defendant based on 2 years of docket inactivity.
Equitable Principles
Jacobs v. Halloran, PA, A2d (1998) reviewed the issue of cases dismissed for lack of prosecution and specifically held that the analysis was one that invoked principles of equity. Inasmuch as the common law right to a judgment of non pros was based on the equitable principle of laches, it was inconsistent to apply a rigid rule that two years of docket inactivity was an automatic presumption of prejudice. The Court reasoned that absent a showing that the defendant suffered actual harm from the delay, there could be no "laches".
The Court reaffirmed this holding in James Brothers Co. v. Union Banking and Trust Co. of Dubois, 432 Pa. 129, 247 A2d 587 (1968) which set forth the three part analysis which a trial court must apply in determining a motion for non pros. The three elements which must be present to cause a judgment of non pros are:
- a failure of due diligence by plaintiff in moving the case forward with reasonable promptitude,
- that Plaintiff has no compelling reason for the delay,
- and that the delay cause actual prejudice to the defendant.
Finally, the Court re-iterated that the analysis must be undertaken pursuant to principles of equity. Most particularly the Court applied the "unclean hands" doctrine that requires that the motioning party, in almost all cases the defendant, not himself be partially responsible for the delay.
Shope v. Eagle, PA, A2d (1998), was an important decision by the Pennsylvania Supreme Court because it confirmed that the vehicle by which a case was considered for dismissal for lack of prosecution did not matter, the same analysis announced under the Jacobs case would apply. The Court noted that there were three methods by which cases could be dismissed for lack of prosecution. The first is under Rule 1019 of the Rules of Judicial Administration which requires that "... where a matter has been inactive for a unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate Order terminating the matter..." (Rule 1019, Pennsylvania Rules of Judicial Administration.) The second is under Local County Rules implemented under the authority of Rule 1019. Those Rules typically provide that for cases in suit for 2 or more years without docket activity, the Court would place the plaintiff's attorney on notice of impending dismissal absent a showing of reason for the delay. The third and final vehicle is a motion for judgment of non pros in which a litigant exercises a common law right to a reasonably prompt conclusion to his case.
There had been some confusion in the Courts as to whether the Local Rules under Rule of Judicial Administration 1019 had to be scrutinized under the three part analysis that a Court was required to utilize when considering a motion for judgment of non pros. Shope held that the three part analysis, invoking equitable principles, would have to be undertaken in order to determine whether a case should be dismissed for lack of due diligence regardless of the vehicle used.
Finally, in Marino v. Hackman, PA, A2d (1998) the Court determined where a case is slated for termination by a trial court for two years of docket inactivity, that non-docket activity such as discovery and settlement negotiations may be considered in determining whether there was a lack of due diligence on the part of plaintiff and actual prejudice to defendant.
Conclusions
Now that the law on dismissal of cases for lack of prosecution has been clarified by these recent decisions the Pennsylvania Supreme Court, it is important for civil defendants to be mindful of the following points:
- Almost all cases have the potential for being subject to local rules under Rule of Judicial Administration 1019 placing plaintiff in a position to answer for his two year delay reflected by docket inactivity.
- If a defendant's counsel finds himself in the potentially favorable position of the plaintiff failing to prosecute a case, he does not want to be guilty of having contributed to any delay.
- Defendant's counsel should never file a Motion for Non Pros with "unclean hands," the result will be an embarrassing record and a case which remains active.
- Finally, defendant's counsel needs to be prepared to argue that the delay has prejudiced his client over and above the mere passage of time, a necessary component to successful dismissal of a case.
For the plaintiff's bar, obviously, the clarification of the law is a relief from the harsh standard set forth by Penn Piping. However, the Court has made clear that there are cases which are worthy of dismissal for lack of prosecution and the plaintiff needs to be aware that their cases should be moved along in a reasonably expeditious fashion, otherwise a careful defendants' lawyer will be successful in a motion for non pros.