J-S75018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

USA FEDERAL CREDIT UNION                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

KATHERINE S. GARGES

                           Appellant                 No. 3422 EDA 2015


                 Appeal from the Order Entered October 9, 2015
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2005-02231


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                        FILED OCTOBER 14, 2016

         Katherine S. Garges appeals, pro se, from the October 9, 2015 order of

the Court of Common Pleas of Montgomery County denying with prejudice her

petition to reinstate this action following termination for inactivity. Because we

conclude that Garges failed to establish good cause for reinstatement, we

affirm.

         In February 2005, USA Federal Credit Union (“USA”) filed a breach of

contract action against Garges, seeking repayment of $11,156.14 in unpaid

loans.      In response, Garges filed an answer with new matter and a

counterclaim, alleging that USA had engaged in unfair and deceptive debt-

collection practices. Following substantial discovery, both parties filed motions

for summary judgment: Garges on USA’s complaint and her counterclaim, and

USA on Garges’s counterclaim.          The trial court denied Garges’s summary
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judgment motion on July 30, 2008 and granted USA’s summary judgment

motion on August 18, 2008.            As a result, the only remaining claims as of

August 18, 2008 were USA’s claims against Garges. One year later, on August

29, 2009, Garges filed a motion to compel answers to interrogatories and

production of documents, which the trial court denied on October 15, 2009.

       On October 20, 2014, after five years of docket inactivity, the trial court

issued a notice of proposed termination (“Termination Notice”) to the parties

pursuant to Montgomery County Local Rule of Judicial Administration 1901

(“Montgomery County Rule 1901”),1 which provides in relevant part:

           (b) 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.

           (c) 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 and the procedure to
           avoid termination. . . .

                                               ...

           (f) If no statement of intention to proceed has been filed in
           the required time period, the Prothonotary shall enter an
           order as of course terminating the matter with prejudice for
           failure to prosecute.

           (g) If an action has been terminated pursuant to this rule,
           an aggrieved party may petition the court to reinstate the
           action. All matters so terminated may not be reinstated
           except with leave of Court, for cause shown.

____________________________________________


       1
         Montgomery County Rule 1901 is based on Pennsylvania Rule of
Judicial Administration 1901 (“Pennsylvania Rule 1901”).



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Mont. Co. L.R.J.A. 1901. The Termination Notice advised the parties that the

trial court would terminate the case without further notice unless either party

filed a statement of intention to proceed by December 20, 2014. Neither USA

nor Garges filed a statement of intention to proceed. Therefore, on January 5,

2015, the trial court terminated the case.

       On January 20, 2015, Garges filed a petition to reinstate the case

pursuant to Montgomery County Rule 1901(g). After a hearing, the trial court

denied Garges’s petition, finding that Garges had waived her right to challenge

the termination by failing to respond to the Termination Notice. Garges timely

appealed to this Court.2

       On appeal, Garges asserts that Montgomery County Rule 1901 does not

meet the requirements of Pennsylvania Rule 1901(c), which states, under the

heading “Minimum standards,” that “[b]efore any order terminating a matter

____________________________________________


       2
        USA asserts that this Court lacks jurisdiction because Garges failed to
timely appeal from the January 5, 2015 order terminating the case. Based on
our review of the trial court docket and the certified record, it appears that the
trial court never entered a formal termination order. Instead, the docket
includes an entry, dated January 5, 2015, stating that the case was
“[t]erminated.” See Trial Ct. Dkt. Entry No. 87. It is undisputed that both
parties received notice of the January 5, 2015 docket entry terminating the
case.

       In any event, in terms of this Court’s jurisdiction, an order denying a
petition to reinstate is itself an appealable order. See generally Setty v.
Knepp, 722 A.2d 1099 (Pa.Super. 1998); Martin v. Grandview Hosp., 541
A.2d 361 (Pa.Super. 1988). Here, Garges timely filed her notice of appeal
from the October 9, 2015 order on November 4, 2015. Therefore, we have
jurisdiction over this appeal.



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on the ground of unreasonable inactivity is entered, the parties shall be

given at least 30 days’ written notice of opportunity for hearing on

such proposed termination” in person, by mail, or by publication in a legal

newspaper. Pa. R.J.A. 1901(c) (emphasis added). Garges claims that because

Montgomery County Rule 1901 does not require a pre-termination hearing, it

does not satisfy the requirements of Pennsylvania Rule 1901. We disagree.3

       Pennsylvania Rule 1901 provides that each court of common pleas may

develop its own local rule to dispose of cases that have been inactive for more

than two years. Pa. R.J.A. 1901(b)(1). Although Pennsylvania Rule 1901(c)

states that the parties should receive “30 days’ written notice of opportunity

for hearing” (emphasis added), our Court has interpreted this provision to

mean that the parties must be given an opportunity to respond to the notice

before termination, either orally or in writing.        See, e.g., Samaras v.

Hartwick, 698 A.2d 71, 72-73 (Pa.Super. 1997) (noting that local rule’s notice

procedure, requiring filing of “a certification of active status within 30 days” of

pre-termination notice, satisfied Pennsylvania Rule 1901’s “minimal procedural

protections”); Clinger, 620 A.2d at 531 (stating that Pennsylvania Rule

1901(c) requires trial court to provide parties with written notice in person, by

mail, or by publication before terminating case); Taylor v. Oxford Land, Inc.,


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       3
        Our review of an order denying a petition to reinstate is limited to
determining whether the trial court abused its discretion or committed an error
of law. Clinger v. Tilley, 620 A.2d 529, 531 (Pa.Super. 1993).



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488 A.2d 59, 62-63 (Pa.Super. 1985) (holding that “the clear language of

[Pennsylvania]      Rule   1901     requires    pre-termination   notice”   to   parties).

Montgomery County Rule 1901 requires the trial court to give the parties

written notice of its intent to terminate and permits the parties to respond to

the notice by filing a statement of intention to proceed within 60 days. When a

party files a timely statement of intention to proceed, the case will not be

terminated.     Because Montgomery County Rule 1901 allows the parties to

respond to the pre-termination notice and thereby prevent termination, we

conclude that it satisfies the requirements of Pennsylvania Rule 1901.4

       Next, Garges asserts that the trial court abused its discretion in denying

her petition to reinstate because she established good cause for reinstatement.

We disagree.

       In denying Garges’s petition, the trial court relied on the waiver principle

adopted in Tucker v. Ellwood Quality Steels Company, 802 A.2d 663

(Pa.Super. 2002). In Tucker, after more than two years of docket inactivity,

the trial court issued a rule to show cause why the case should not be

terminated, directing the parties to respond to the rule at “the general calling

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       4
         Moreover, the notice/response procedure outlined in Montgomery
County Rule 1901 complies with newly amended Pennsylvania Rule of Civil
Procedure 230.2, which also requires the filing of a statement of intention to
proceed to avoid termination of an inactive case. See Pa. R.C.P. 230.2(b), (f)
(eff. Dec. 31, 2016). However, Rule 230.2 was suspended between April 23,
2014, and December 9, 2015, and, thus, was not in effect when the trial court
terminated this case or denied Garges’s petition to reinstate.



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of all inactive cases on October 26, 2001.” Id. at 664. Because neither party

appeared on that date, the trial court entered an order terminating the case

with prejudice. Id. On appeal, this Court held that the appellant waived his

right to challenge the termination by failing to respond to the rule to show

cause. Id. at 666. We explained that “it would be inequitable for Appellant to

be able to maintain his cause of action against Appellee. Through his failure to

attend the hearing on whether his case should be terminated for inactivity,

Appellant has demonstrated a manifested indifference towards the continuation

of his cause of action.” Id. (citing Shope v. Eagle, 710 A.2d 1104, 1107 n.13

(Pa. 1998)).5

       Although neither Tucker nor Shope involved a petition to reinstate, the

trial court applied the same waiver principle in this case, finding that Garges

waived her right to challenge the termination by failing to respond to the

Termination Notice.       Had this appeal stemmed from a termination order, the

trial court’s rationale would have been proper.       Garges, however, did not


____________________________________________


       5
         In Shope, our Supreme Court considered whether the appellants’
failure to respond to a notice of termination for inactivity resulted in waiver of
their right to challenge the termination on appeal, stating:

       We note that Appellants preserved their right to challenge the
       dismissal of the action by responding to the court order directing
       them to appear for a hearing on whether the case should be
       terminated for inactivity. Had they not done so, their right to
       challenge the dismissal would have been waived . . . .

710 A.2d at 1107 n.13 (emphasis added).



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appeal from a termination order. Garges appealed from the October 9, 2015

order denying her reinstatement petition, which she had the right to file under

Montgomery County Rule 1901(g), notwithstanding her failure to respond to

the Termination Notice.

       A party seeking reinstatement of a terminated case must establish good

cause to reactivate the case. Setty, 722 A.2d at 1101; see Mont. Co. L.R.J.A.

1901(g) (stating that reinstatement may be granted only “with leave of Court,

for cause shown”).        To establish good cause, “‘[t]he aggrieved party must

demonstrate that:        (1) the petition for reactivation was timely filed; (2) a

reasonable explanation exists for the docket inactivity; and (3) facts exist

supporting a meritorious cause of action.’” Setty, 722 A.2d at 1101 (citation

omitted); see Samaras, 698 A.2d at 73.6 Notably, the good-cause test does

not consider whether the party seeking reinstatement timely responded to a

pre-termination notice.       For this reason, the trial court’s reliance on Tucker

and Shope was misplaced.7

       At the hearing on her reinstatement petition, Garges’s only explanation

for the lengthy period of docket inactivity was that she was “impoverished

during [that] entire time, due in significant part to [USA’s] actions.”       N.T.,


____________________________________________


       6
       Garges’s reinstatement petition, filed 15 days after the termination,
was timely.
       7
       We are not bound by the trial court’s rationale and may affirm on any
basis. In re Jacobs, 15 A.3d 509, 509 n.1 (Pa.Super. 2001).



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10/7/15, at 9; see id. at 11. She further stated that any delay “was entirely

due to [USA’s] deliberate attempts to frustrate [her] right of appeal” and that

she “was not required during that period of time to do anything.” Id. at 8. In

response, the trial court explained that Garges could have taken affirmative

steps to continue the litigation:

           [Y]ou’re ignoring the fact that there are available, to both
           parties, ways to move a case along. There are innumerable
           mechanisms where either party can move a case along.

           In other words, if a plaintiff is dilatory, you can file a motion
           to compel them to take some action; you can ask, under our
           rules, for a 212 conference with the court, saying . . . order
           this case to trial. . . . You have the ability to do things
           yourself, or to file a motion to dismiss the case for lack of
           prosecution . . . .

Id. at 8-9; see id. at 13. However, the trial court docket shows that Garges

filed nothing in the five years preceding termination. In fact, Garges admitted

that USA “is the one who took the risk of not proceeding with [its] case that

entire time” and that “the delay has worked in [her] favor.” Id. at 9-10.8




____________________________________________


       8
        “The law is well settled that it is [the] plaintiff, not [the] defendant,
who bears the risk of failing to act within a reasonable time to move a case
along.” Pilon v. Bally Eng’g Structures, 645 A.2d 282, 285 (Pa.Super.
1994). Given that USA deliberately abandoned its cause of action against
Garges, which sought more than $11,000 in damages, it is somewhat difficult
to understand why Garges would want to reactivate USA’s claim. It appears
that she wants the case re-opened in order to challenge the dismissal of her
counterclaim.



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       Based on the evidence of record, we conclude that Garges failed to offer

a reasonable explanation for the docket inactivity.      As the trial court aptly

observed:

           Had [Garges] pursued dismissal of [USA’s] action through
           non pros, her assertion that the Counterclaim was wrongly
           dismissed would have been ripe for review. Instead, she
           opted to delay more than five years until the Prothonotary
           was compelled to commence termination proceedings, and
           then seek discretionary leave of Court to pursue a claim
           long-since abandoned.

Trial Ct. Op. at 5-6.       Accordingly, because Garges failed to establish good

cause for reinstatement, we affirm the denial of her petition to reinstate.9

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2016




____________________________________________


       9
        In light of this disposition, we need not reach Garges’s remaining claims
relating to the trial court’s rulings in the pre-termination litigation.



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