THE COURTS

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CH. 200]

Proposed Rule 229.1 Governing Judgment of Non Pros for Inactivity; Proposed Recommendation No. 152

[29 Pa.B. 15]

   The Civil Procedural Rules Committee proposes that the Rules of Civil Procedure be amended by adding new Rule 229.1 governing Judgment of Non Pros for Inactivity. The recommendation is being published to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than March 1, 1999 to:   Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, Pennsylvania 17055, or E-Mail to civil.rules@supreme.court.state.pa.us.

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules nor will it be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 200.  BUSINESS OF COURTS

Rule 229.1.  Judgment of Non Pros for Inactivity.

   (a)  Not earlier than two years after the commencement of an action, a party may file a petition seeking the entry of a judgment of non pros for inactivity if the party has given at least ninety days written notice to every other party of the intention to file the petition. The written notice shall be in the form prescribed by subdivision (c) of this rule. A copy of the written notice shall be attached to the petition.

   (b)  The court may grant the relief sought if

   (1)  the party against whom judgment is sought has shown a lack of due diligence by failing to proceed with reasonable promptitude both before and after receiving the written notice required by subdivision (a);

   (2)  there is no compelling reason for the delay; and

   (3)  the delay has caused actual prejudice to the petitioner.

   Official Note:  Rule 229.1 is derived from James Brothers Lumber Co. v. Union Banking and Trust, 432 Pa. 129, 247 A.2d 587 (1968) as reaffirmed in Jacobs v. Halloran, et al., 551 Pa. 350, 710 A.2d 1098 (1998).

   The activity sufficient to demonstrate the diligent prosecution of a case may be on the docket, outside the record or both. For example, mediation or settlement negotiations between the parties are activities that progress the case toward resolution but do not appear on the docket.

   The prejudice to the defendant caused by the delay must be actual and not presumed.

   ''A party who seeks the equitable relief provided by the entry of a judgment of non pros must do so with clean hands,'' Jacobs v. Halloran, et al., 551 Pa. at ___, 710 A.2d at 1103 (1998).

   (c)  The notice required by subdivision (a) shall be substantially in the following form:

(CAPTION)

To:  _________________
(Plaintiff)
(NOTE:  Serve on unrepresented
plaintiff or on plaintiff's attorney)

Date of Notice:  ______

IMPORTANT NOTICE

   NINETY DAYS AFTER THE DATE OF THIS NOTICE, THE UNDERSIGNED INTENDS TO FILE A PETITION SEEKING THE ENTRY OF A JUDGMENT OF NON PROS PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE NO. 229.1 UNLESS YOU TAKE SUFFICIENT STEPS TO DILIGENTLY PROSECUTE THIS ACTION.
 
 
__________
(Signature of Defendant
or Attorney)
 
__________
(Address)

Explanatory Comment

   Proposed Rule 229.1 establishes the procedure for obtaining a judgment of non pros for inactivity. The rule incorporates the three prong test of Jacobs v. Halloran, et al., 551 Pa. 350, ____,  710 A.2d 1098, 1103 (1998):

To dismiss a case for inactivity pursuant to a defendant's motion for non pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant.

   Two aspects of the rule should be noted. First, this rule contemplates activity which progresses a case toward resolution whether or not that activity is noted in a docket entry. Second, there is no presumption of prejudice arising from a specific time period of inactivity. A party must show actual prejudice to the ability to defend the case in addition to a lack of due diligence which is unexcused. This is in accord with the Jacobs case which held that ''the equitable principles underlying the entry of a judgment of non pros must be recognized and the presumption of prejudice first enunciated in Penn Piping, Inc., v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), must be abandoned.'' Jacobs v. Halloran, et al., 551 Pa. at ____ , 710 A.2d at 1100 (1998).

   The rule introduces the concept of a ninety-day notice to be given to all parties of the intention to file a petition for the entry of a judgment of non pros after ninety days. This notice requirement is designed to alert the parties to the lack of activity in the action. Under the proposed rule, due diligence after notice has been given is sufficient to avoid the entry of the judgment and, in many cases, it is likely that the notice will be sufficient to cause the parties to move the case forward, thereby avoiding the necessity of filing a petition.

By the Civil Procedural
Rules Committee

EDWIN L. KLETT,   
Chairperson

[Pa.B. Doc. No. 99-3. Filed for public inspection December 31, 1999, 9:00 a.m.]

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