THE COURTS

Title 201--RULES OF JUDICIAL ADMINISTRATION

[201 PA. CODE CH. 19]

Title 231--RULES OF CIVIL
PROCEDURE

PART I.  GENERAL

[231 PA. CODE CH. 200]

Proposed Recommendation No. 177; Proposed New Rule 230.2 Governing Termination of Inactive Cases

[32 Pa.B. 245]

   The Civil Procedural Rules Committee proposes that new Rule of Civil Procedure 230.2 governing termination of inactive cases be promulgated as set forth herein. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.

   All communications in reference to the proposed recommendation should be sent not later than March 1, 2002 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 of civil procedure or be officially adopted or promulgated by the Court.

   (Editor's Note:  The following section is new and is printed in regular type to enhance readability.)

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 200.  BUSINESS OF COURTS

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.

   Official Note:  This rule provides an administrative method for the termination of inactive cases.

   (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, a brief identification of the matter to be terminated and the procedure to avoid termination.

   (2)  The notice shall be served by mail pursuant to Rule 440. 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.

   Official Note:  If the notice mailed to an attorney is returned by the postal service, the prothonotary should check a legal directory or contact the Administrative Office of Pennsylvania Courts for a current address. Otherwise, publication in the legal newspaper or a newspaper of general circulation within the county is required under this rule if the mailed notice is returned.

   See subdivision (e) for the form of notice.

   (c)  If no statement of intention to proceed is filed prior to the entry of the order of termination on the docket, the prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute.

   Official Note:   A court officer may certify to the prothonotary those matters which have been inactive and in which no statement of intention to proceed has been filed.

   (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.

   Official Note:   The provision under subdivision (d)(2) for filing a petition within thirty days is not intended to set a standard for timeliness in proceedings outside this rule.

   (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.

   Official Note:   The provision under subdivision (d)(2) for filing a petition within thirty days of the entry of the order of termination on the docket is not a standard of timeliness. Rather, the filing of the petition during that time period eliminates the need to make the showing otherwise required by subdivision (d)(3).

   (e)  The notice required by subdivision (b) shall be in the following form:

(Caption)

NOTICE OF PROPOSED TERMINATION OF
COURT CASE

   The court intends to terminate this case without further notice because the docket shows no activity in the case for at least two years.

   You may stop the court from terminating the case by filing a Statement of Intention to Proceed. The Statement of Intention to Proceed should be filed with the Prothonotary of the Court at __________
                              Address

on or before ______ .
                        Date

   IF YOU FAIL TO FILE THE REQUIRED STATEMENT OF INTENTION TO PROCEED, THE CASE WILL BE TERMINATED.

	BY THE COURT;
______	_________________
Date of this Notice	Officer

   (f)  The Statement of Intention to Proceed shall be in the following form:

(Caption)

Statement of Intention to Proceed

To the Court:

   ______ intends to proceed with the above captioned matter.

Date: ______	_________________
	Attorney for ______

TITLE 201.  RULES OF JUDICIAL ADMINISTRATION

CHAPTER 19.  MISCELLANEOUS ADMINISTRATIVE PROVISIONS

MISCELLANEOUS ADMINISTRATIVE PROVISIONS

Rule 1901.  Prompt disposition of matters; termination of inactive cases.

*      *      *      *      *

   (b)  Primary responsibility for implementation of policy.--

   (1)  [Each] Except as provided by paragraph (3), each court of common pleas is primarily responsible for the implementation of the policy expressed in subdivision (a) of this rule and is directed to make local rules of court for such purposes applicable to the court and to the community court or district justices of the peace of the judicial district.

*      *      *      *      *

   (3)  The policy set forth in subdivision (a) of this rule shall be implemented in the civil trial division of the courts of common pleas pursuant to Rule of Civil Procedure 230.2.

*      *      *      *      *

Explanatory Comment

   Recommendation No. 177 proposes the promulgation of new Rule of Civil Procedure 230.2 governing the termination of inactive cases. Two aspects of the recommendation merit comment.

I.  Rule of Civil Procedure

   The termination of inactive cases is presently the subject of Rule of Judicial Administration 1901. It is proposed that there be a rule of civil procedure to govern matters within the scope of the civil trial division of the courts of common pleas. Proposed Rule 230.2 is tailored to the needs of the civil trial division.

   Rule of Judicial Administration 1901 is not self-executing but rather calls upon the courts of common pleas to promulgate local rules. In contrast, proposed Rule 230.2 provides a complete procedure and a uniform statewide practice. Local rules should not be required to implement the statewide rule.

   A conforming amendment to Pa.R.J.A. 1901(b) is proposed to accommodate the new rule of civil procedure.

II.  Inactive Cases

   The purpose of the rule is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and ''the prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute.'' If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. If no notice of intention to proceed is filed, the court on its own will eventually terminate the action.

   The procedure is one that does not involve legal issues, briefs or hearings. The matter is perfunctory. If a party files a statement of intention to proceed, the matter will proceed.

   a.  Where the action has been terminated

   If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule 230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed.

   The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2).

   Subdivision (d)(2) eases the burden of a party against whom an order of termination has been entered and who moves promptly for relief from that order. However, as stated in the note, the thirty-day period specified in that subdivision is not intended to set a standard for timeliness in circumstances outside that rule.

   b.  Where the action has not been terminated

   An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exists independently of termination under proposed Rule 230.2. In contrast to Rule 230.2, the procedure for a common law non pros is subject to the stringent requirements imposed by case law.

By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,   
Chair

[Pa.B. Doc. No. 02-34. Filed for public inspection January 11, 2002, 9:00 a.m.]

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