Collura v. L & E Concrete Pumping, Inc.

• Decision Date: 15 January 1997
• Citation: 686 A.2d 392,454 Pa.Super. 572
• Parties: Anthony F. COLLURA and Rose Mary Collura, Appellants, v. L & E CONCRETE PUMPING, INC., and Burrell Construction and Supply Co., Jointly and/or Severally, Appellees.
• Court: Pennsylvania Superior Court

Page 392

686 A.2d 392

454 Pa.Super. 572

Anthony F. COLLURA and Rose Mary Collura, Appellants, v. L & E CONCRETE PUMPING, INC., and Burrell Construction and Supply Co., Jointly and/or Severally, Appellees.

Superior Court of Pennsylvania.

Argued Sept. 10, 1996.

Filed Nov. 4, 1996.

Reargument Denied Jan. 15, 1997.

Patricia L. Haas, Pittsburgh, for appellants.

David P. Helwig, Pittsburgh, for appellees.

Before CIRILLO, President Judge Emeritus, and TAMILIA and HESTER, JJ.

CIRILLO, President Judge Emeritus:

Anthony F. Collura and Rose Mary Collura appeal the order entered in the Court of Common Pleas of Allegheny County denying their petition for relief from a judgment of non pros. We affirm.

On January 19, 1989, the Colluras instituted the underlying personal injury suit after Mr. Collura was injured while performing work at a construction site. Mr. Collura's employer, A.A. Martini Construction Company, was hired to complete a construction project at a New Kensington hospital. Mr. Collura's work consisted of pouring concrete on the roof of an addition to a medical building. The concrete was supplied by a hose that was powered by a pumper truck. While performing his work, the hose suddenly "bucked," causing Mr. Collura to fall off the roof of the building, onto the ground, where he landed on his head, neck and back. The Appellee, L & E Concrete Pumping (L & E), owned the hose, delivery system and truck. At the time of the accident, an L & E employee was operating the truck.

In 1993, L & E filed a motion for summary judgment which the court denied. On September 1, 1995, L & E filed an amended petition for a rule to show cause why the action should not be dismissed for failure of the Appellants to prosecute. The court issued a rule and directed the Colluras to file an answer to the petition within twenty days. After hearing oral argument on the petition, the court entered an order granting judgment of non pros in favor of the Appellee, L & E. The Colluras filed a petition requesting relief from the judgment, which the trial court summarily denied. ¹ The Colluras now appeal and ask this court to review the following issues:

(1) Was the entry of judgment of non pros by the Court of the Common Pleas appropriate where there was docket activity in the case and where any delays in the prosecution of the case were caused by the action and activities of L & E Concrete or were reasonably explained by the Colluras?

(2) Whether the Colluras demonstrated that they proceeded with due diligence and set forth compelling reasons for delay in the case in that:

(a) Mr. Collura's employer filed a Termination Petition in the Workers' Compensation case, alleging that Mr. Collura had recovered from his work injury. Mr. Collura's counsel successfully defended against the Termination Petition; and

(b) Mr. Collura's health made it virtually impossible for him to participate in the prosecution of the Colluras' case; and

(c) L & E Concrete sold the pumper truck during the pending litigation without notice to the Colluras, thereby preventing the Colluras from examining the vehicle.

The question of whether to enter a judgment of non pros for a plaintiff's failure to prosecute an action within a reasonable time rests within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Mudd v. Nosker Lumber, Inc., 443 Pa.Super. 483, 662 A.2d 660 (1995). The well-established circumstances under which a court may enter a judgment non pros are where: (1) a party has shown a lack of due diligence by failing to proceed with reasonably promptitude; (2) there is no compelling reason for the delay; and, (3) the delay has caused prejudice to the adverse party. James Bros. Lumber Co. v. Union Banking and Trust Co. of Du Bois, 432 Pa. 129, 247 A.2d 587 (1968). ²

Our supreme court has set forth the time limit for docket inactivity which will presume that the adverse party has been prejudiced. In Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992), our supreme court stated:

We believe it is, and we now hold that in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket. Thus, if there is a lack of due diligence in failing to proceed with reasonable promptitude; if there is no compelling reason for the delay; and if the delay is for two years or more, the case may be dismissed for lack of activity on the docket.

Id. at 356, 603 A.2d at 1009 (emphasis added).

In Pine Township, supra, our court found that plaintiff's petition to remove its case from a termination list was "neither substantive in nature nor exemplary of the type of positive docket activity contemplated by this Court in Penn Piping." Id. at 478, 625 A.2d at 706. Similarly, the last action taken by the Appellants which was entered on the docket, before the filing of Appellee's rule to show cause, was a June 28, 1994 entry of the appearance of Appellants' counsel, Shelley W. Elovitz, Esq. This court does not deem such activity as "substantive" or an example of "positive docket" action. Pine Township, supra. In fact, Ms. Elovitz did not even replace counsel from another firm, but rather, substituted herself for an attorney from her own office who had previously represented the Colluras. Such an action should not be classified as a step taken to "diligently prosecute" the Colluras case. See Gates v. Servicemaster Commercial Service, 428 Pa.Super. 568, 631 A.2d 677 (1993) (plaintiff must diligently prosecute case in order to prevent the entry of a judgment non pros).

In light of the classification of Ms. Elovitz's entry of appearance as non-substantive docket activity, we find that the last substantive docket entry prior to the service of L & E's petition was a July 6, 1993 court order directing the Colluras to file supplemental answers to a set of interrogatories. Because the gap in time from July 6, 1993 until the July 28, 1995 petition for a rule to show cause constitutes a "delay for a period of two years or more," we presume that Appellee has been prejudiced. Penn Piping, supra,

The Colluras next claim that they diligently prosecuted their case, and, in the alternative, have given compelling reasons for any perceived delay in prosecuting the case. Specifically, the Colluras contend that a worker's compensation termination proceeding which was pending, prevented them from simultaneously proceeding with the prosecution of the present case. They also assert that Mr. Collura's declining health prevented him from testifying on his behalf at a trial. Finally, the Appellants claim that the Appellee has "unclean hands" because it sold the truck involved in the present accident, which, in turn, has created reasonable delays in prosecuting the present case.

The Penn Piping court recognized certain compelling reasons for a delay which would defeat the dismissal of a case for docket inactivity. Such instances are "where the delay was caused by bankruptcy, liquidation, or other operation of law, or in cases awaiting significant developments in the law." Penn Piping, 529 Pa. at 356 n. 2, 603 A.2d at 1009 n. 2. The court, however, did not intend this list to be all inclusive or exhaustive. Rather, the court stated that "[t]here may, of course, be other compelling reasons which will be determined on a case-by-case basis." Id. Instantly, we do not find that Appellants have provided the court with any compelling reasons.

The doctrine of non pros has developed in order to ensure that plaintiffs do not take advantage of defendants through dilatory tactics. Mudd v. Nosker Lumber, Inc., 443 Pa.Super. 483, 662 A.2d 660 (1995) (citation omitted). By the same respect, however, a defendant will not be allowed to intentionally prejudice a plaintiff in the prosecution of a case. Id. at 489-93, 662 A.2d at 663-64. The Appellants assert that on December 9, 1992, their counsel requested that L & E produce the truck involved in Mr. Collura's accident in order to allow their expert to review it and prepare an expert report for use at trial. L & E responded to this request by informing Appellants that the truck had been sold in October of 1992. The Colluras claim that L & E has "unclean hands" for intentionally selling the truck used in the accident in order to prevent Appellants from successfully prosecuting their case.

We remind the Appellants that it is their own responsibility to pursue the present cause of action in a diligent manner; it is not Appellee-defendant's burden to ensure that this case proceeds. Aimee's Touch, Inc. v. Kramer, 441 Pa.Super. 415, 657 A.2d 992 (1995). Appellants had over one and one-half years from the commencement of their personal injury action to secure examination of the truck involved in the accident. Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992) (opinion in support of affirmance) (plaintiff's delay in waiting to secure an expert report for trial was not a compelling reason justifying delay in prosecution). There is no evidence in the record that the Appellee has acted in an intentionally culpable manner to prevent the Appellants from proceeding with their suit. Cf. Mudd, supra (defendants held to have "unclean hands" where they requested a continuance on the eve of trial, ostensibly to negotiate a settlement, and then filed a motion for judgment of non pros four weeks later). We do not find that Appellants' "unclean hands" argument has merit.

Appellants also contend that the declining health of Mr. Collura has prevented them from having him testify at trial. Such testimony, they claim, is necessary and vital to their case. We disagree. As the trial court and Appellee recognize, a number of witnesses are able to testify to the accident and circumstances surrounding Mr. Collura's fall. Even assuming that Mr. Collura's version of the accident is so...