Neshaminy Constructors, Inc. v. Plymouth Tp.

• Court: Pennsylvania Commonwealth Court
• Writing for the Court: Before DOYLE and PALLADINO, JJ., and BARBIERI; BARBIERI
• Citation: Neshaminy Constructors, Inc. v. Plymouth Tp., 572 A.2d 814, 132 Pa.Cmwlth. 229 (Pa. Commw. Ct. 1990)
• Decision Date: 28 February 1990
• Parties: NESHAMINY CONSTRUCTORS, INC., Appellant, v. PLYMOUTH TOWNSHIP, Appellee.

Page 814

572 A.2d 814

132 Pa.Cmwlth. 229

NESHAMINY CONSTRUCTORS, INC., Appellant, v. PLYMOUTH TOWNSHIP, Appellee.

Commonwealth Court of Pennsylvania.

Argued Dec. 11, 1989.

Decided Feb. 28, 1990.

Reargument Denied May 1, 1990.

Peter L. Fiss, with him, Thomas J. Stevens, Jr., Corr, Stevens and Fenningham, Trevose, for appellant.

Emeline L.K. Diener, Herbert F. Rubenstein, Broad Axe, for appellee.

Before DOYLE and PALLADINO, JJ., and BARBIERI, Senior Judge.

BARBIERI, Senior Judge.

Neshaminy Constructors, Inc. (Appellant) appeals the order of the Montgomery County Court of Common Pleas which granted non pros in favor of Plymouth Township (Township), the appellee herein. Three issues are presented on appeal: (1) whether the trial court abused its discretion in granting the Township's motion for non pros; (2) whether the Township waived any claim to non pros; and (3) whether the Township was barred from filing a subsequent motion for non pros following dismissal of its initial motion. We affirm.

On February 11, 1981, Appellant instituted suit against the Township by writ of summons. Some eleven months later, a complaint was filed, wherein Appellant sought recovery of a building permit fee paid to the Township under protest, alleging, inter alia, that:

3. On or about September 15, 1978, Plaintiff [Appellant] was awarded a contract by East Norriton-Plymouth Joint Sewer Authority (hereinafter Authority) for expansion of the East Norriton-Plymouth Joint Sewer Plant.

4. On or about November 15, 1978, Plaintiff began construction under said contract.

5. On or about January 8, 1979, Plaintiff received written notification from Defendant [the Township], in the form of a Cease and Desist Order, that it was in violation of Plymouth Township's Building Code Article I, Section 113.1, BOCA Code, 1975 Edition, by initiating work under said contract without first having secured a building permit from Plymouth Township. Said Cease and Desist Order directed Plaintiff to pay a fee for issuance of said building permit in the amount of .2% of the total contract price; said payment to be made within ten days of receipt of said letter.

....

10. On or about February 12, 1979, under protest and with reservation of all legal rights, Plaintiff submitted an application for building permit and a check ...

....

12. On March 15, 1979, Defendant issued Plaintiff a building permit for the ... fee of Twenty Thousand Six Hundred and Twenty-One ($20,621.00) Dollars.

Complaint, Paragraph Nos. 3-5, 10, 12. Appellant further alleged that there was no reasonable relationship between the building permit fee charged and the costs to the Township in performing any official service so as to justify the building permit fee. See Complaint, Paragraph No. 8(b).

Pleadings subsequently closed in February 1982 and, in March 1982, Appellant served interrogatories on the Township, Answers to which were received in April 1982 and thereafter evaluated. On November 7, 1983, Appellant filed an Active Status Certificate and, apparently, inspected documents in late 1984. In May and June 1985, Appellant scheduled the depositions of three Township officers, Joseph C. Millard, Robert L. Townsend (Townsend) and Charles F. Oyler (Oyler); only one of which was taken and the others postponed indefinitely.

No further activity is evident, apart from exchanges between counsel as to the rescheduling of depositions, until September 22, 1987 when the prothonotary notified the parties that, pursuant to local rule, the case was subject to termination due to a two-year period of inactivity. In response, Appellant filed a second Active Status Certificate on October 15, 1987 and, on the same date, assigned new counsel to handle its case.

Apparently, in January 1988, counsel for both parties discussed this case by telephone and, in March 1988, Appellant scheduled the depositions of Townsend and Oyler. Immediately thereafter, on March 9, 1988, the Township moved for non pros. Pursuant to protective order, further discovery proceedings were stayed pending final disposition of the Township's motion.

By court-approved stipulation of April 5, 1988, the parties waived the provisions of the protective order and agreed to the taking of the depositions of Townsend and Oyler, which were then taken on April 29, 1988. Thereafter, on September 30, 1988, the trial court dismissed the Township's motion for non pros for failure to file a timely brief in support of its motion as required by local rule.

On October 19, 1988, the Township filed a second motion for non pros and a timely brief in support thereof. After oral argument, the trial court found that the Township had a meritorious claim for non pros. This appeal followed. ¹

On appeal, Appellant asserts that: (1) the record fails to establish lack of due diligence in prosecuting this case; (2) the delay, if any, in prosecuting this case did not prejudice the Township; (3) the Township waived any claim to non pros; and (4) the dismissal of the Township's first motion for non pros barred its second motion. We disagree.

Entry of non pros is proper "when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses." James Brothers Lumber Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). Prejudice, however, for purposes of entering non pros, is not limited to the death or absence of material witnesses, but may also attach where, because of delay, there is loss of documentary evidence or any substantial diminution in a party's ability to properly present its case. Carroll v. Kimmel, 362 Pa. Superior Ct. 432, 524 A.2d 954 (1987); American Bank and Trust Co. of Pennsylvania v. Ritter, Todd and Haayen, 274 Pa. Superior Ct. 285, 418 A.2d 408 (1980).

I

From April 1982 until May 1985, Appellant merely evaluated interrogatory answers; filed an Active Status Certificate, which, in no way, served to move this case forward; and, although not docketed, Appellant claims that documents were inspected. Likewise, from mid-1985 until March 1988, the record indicates only that Appellant took one deposition; assigned new counsel to the case, which, again, in no way served to advance this case; and filed a second Active Status Certificate, although Appellant claims that discussions were also held between counsel concerning the rescheduling of depositions.

Such sparse activity, extending over a protracted period of time, as here, particularly in a case of this type, clearly establishes Appellant's failure to exercise due diligence in pursuing its claim with reasonable promptitude. Nor has Appellant offered any compelling reason for the delay attributable to its failure.

Similarly, we are not persuaded that the trial court manifestly abused its discretion in finding prejudice. We discern no misapplication of the law by the trial court, as contended by Appellant.

In its motion for non pros, the Township alleged that Appellant's failure to prosecute this case with due diligence resulted in a substantial diminution of its ability to present factual information at trial. In support, the Township cited excerpts of testimony which it believed demonstrated that one of its key witnesses, Townsend, the former Township manager who had retired several years earlier, could no longer specifically recall the events that precipitated this litigation. The Township, again citing excerpts of testimony in support, further alleged that the memory of another key witness, Oyler, the Township's Engineer and Director of Public Works, had likewise dimmed.

After review, the trial court concluded, inter alia, that the Township was prejudiced by Appellant's delay because memories had faded and a witness had retired. The trial court also noted that a cause of action contesting payment of a building permit fee, as here, did not require almost a decade of discovery.

Appellant claims, however, that the Township failed to demonstrate the relevance of the testimony of Townsend and Oyler to a material fact at issue and that such failure precludes a finding of prejudice. In support, Appellant cites Manson v. First National Bank in Indiana, 366 Pa. 211, 77 A.2d 399 (1951) and Penn Piping, Inc. v. Insurance Co. of North America, 382 Pa. Superior Ct. 19, 554 A.2d 925, petition for allowance of appeal granted, 523 Pa. 632, 564 A.2d 1261 (1989).

In Manson, the Supreme Court found that the defendant's conduct and the general disruption caused by World War II occasioned much of the nine-year delay therein. The Supreme Court further noted, in finding absence of prejudice, that none of the testimony of witnesses who had died during the course of litigation would have been relevant because they were intended for use at trial solely in regard to an issue that was not in controversy.

In Penn Piping, Inc., the party seeking non pros merely pronounced, without explanation that prejudice was "obvious"; that non-specified witnesses had dispersed; and that memories had dimmed. Since no explanation was offered concerning the specific witnesses affected, or the evidence alleged to be missing, due to the delay in prosecuting the case, the Superior Court refused to speculate as to whether the party seeking non pros suffered substantial prejudice.

Here, the record demonstrates that, from the outset, the Township intended to call three fact witnesses at trial, Townsend and Oyler being two of them. See Response to Interrogatory No. 1. The record further demonstrates that much of Appellant's activity during the protracted course of this litigation related to the depositions of three individuals, Townsend and Oyler again being two of them. See Docket Entries. Yet, Appellant now claims that neither Townsend nor Oyler were ever...