J-A01040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD T. O’BRIEN, M.D.,                        IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

GREAT LAKES ONCOLOGY HEMATOLOGY,
INC., PHYSICIAN ONCOLOGY NETWORK,
THE REGIONAL CANCER CENTER, RANJIT
S. DHALIWAL, M.D., PHILIP H. SYMES,
M.D., CONRAD J. STACHELEK, M.D., AND
JAN M. ROTHMAN, M.D.,

                        Appellees                   No. 535 WDA 2014


              Appeal from the Order entered March 20, 2014
               in the Court of Common Pleas of Erie County,
                    Civil Division at No(s): 11327-2008


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED JANUARY 23, 2015

     Edward T. O’Brien, M.D., (“Appellant”), appeals from the trial court’s

order denying his petition to open and/or strike the judgment of non pros

which the trial court entered in favor of Great Lakes Oncology Hematology,

Inc., (“GLOHA”), Physician Oncology Network, (“PON”), The Regional Cancer

Center, (“RCC”), Philip H. Symes, M.D., Conrad J. Stachelek, M.D., and Jan

M. Rothman, M.D., (collectively “Physicians”), and Ranjit S. Dhaliwal, M.D.

(“Dr. Dhaliwal”). We affirm. Further, for the reasons stated below, we deny

GLOHA’s and Physicians’ motion to quash this appeal as untimely.

     Appellant presents the following issues:
J-A01040-15


      1. Whether the trial court erred as a matter of law and/or
      abused its discretion in granting the motions for judgment of non
      pros filed on behalf of [Physicians] and GLOHA; and/or in
      denying [Appellant’s] petition to open and/or strike said
      judgments?

      2. Whether the trial court erred as a matter of law and/or
      abused its discretion in granting the motion for judgment of non
      pros filed on behalf of Appellees PON and RCC; and/or in denying
      [Appellant’s] petition to open and/or strike said judgments?

      3. Whether the trial court erred as a matter of law and/or
      abused its discretion in denying [Appellant’s] motion to
      substitute the Co-Executors of the Estate of Dhaliwal as
      defendants and entering judgment in favor of Dhaliwal?

Appellant’s Brief at 4-5.

      Appellant’s first and second issues challenge the trial court’s order

denying Appellant’s petition pursuant to Pa.R.C.P. 3051 to strike and/or

open the judgment of non pros entered in favor of GLOHA, PON, RCC, and

Physicians. Our analysis is guided by the following:

             A request to open a judgment of non pros, like the opening
      of a default judgment, is in the nature of an appeal to the
      equitable powers of the court and, in order for the judgment of
      non pros to be opened, a three-pronged test must be satisfied:
      1) the petition to open must be promptly filed; 2) the default or
      delay must be reasonably explained or excused; and 3) facts
      must be shown to exist that support a cause of action. Madrid v.
      Alpine Mountain Corp., 24 A.3d 380, 381 (Pa. Super.2011)
      (citation omitted); Pa.R.C.P. 3051. A petition under Pa.R.C.P.
      3051 is the only means by which relief from a judgment of non
      pros may be sought. Id.; Pa.R.C.P. 3051, Comment. “Any
      appeal related to a judgment of non pros lies not from the
      judgment itself, but from the denial of a petition to open or
      strike.” Madrid, 24 A.3d at 381–382 (citation omitted). The
      “failure to file a timely or rule-compliant petition to open
      operates as a waiver of any right to address issues concerning
      the underlying judgment of non pros.” Id. at 382. Finally, a trial
      court's decision to deny a petition to open or strike a judgment


                                    -2-
J-A01040-15


     of non pros is reviewed pursuant to an abuse of discretion
     standard. Id. (citation omitted).

See Bartolomeo v. Marshall, 69 A.3d 610, 613-614 (Pa. Super. 2013).

     Further, Pa.R.C.P. 3051 provides in pertinent part:

     Rule 3051. Relief from Judgment of Non Pros

     (a) Relief from a judgment of non pros shall be sought by
     petition. All grounds for relief, whether to strike off the judgment
     or to open it, must be asserted in a single petition.

     (b) Except as provided in subdivision (c), if the relief sought
     includes the opening of the judgment, the petition shall allege
     facts showing that

        (1) the petition is timely filed,

        (2) there is a reasonable explanation or legitimate excuse
        for the conduct that gave rise to the entry of judgment of
        non pros, and

        (3) there is a meritorious cause of action.

                                               ***

     (c) If the relief sought includes the opening of the judgment of
     non pros for inactivity, the petition shall allege facts showing
     that

        Note: The “inactivity” covered by this subdivision is
        governed by and subject to Jacobs v. Halloran, 551 Pa.
        350, 710 A.2d 1098 (1998).

     (1) the petition is timely filed,

     (2) there is a meritorious cause of action, and

     (3) the record of the proceedings granting the judgment of non
     pros does not support a finding that the following requirements
     for entry of a judgment of non pros for inactivity have been
     satisfied:

        (i) there has been a lack of due diligence on the part of the
        plaintiff for failure to proceed with reasonable promptitude,



                                         -3-
J-A01040-15


         (ii) the plaintiff has failed to show a compelling reason for
         the delay, and

         (iii) the delay     has   caused   actual    prejudice    to   the
         defendant.

Pa.R.C.P. 3051(a)-(c).

      Appellant’s third issue challenges the trial court’s denial of Appellant’s

motion to substitute Dr. Dhaliwal, who died during the course of this

litigation, with Dr. Dhaliwal’s estate and its co-executors.            In analyzing

Appellant’s third issue, we recognize that substituting parties lies within the

sound discretion of the trial court, and we will not disturb such a

determination absent an abuse of discretion by the trial court. Rosenberg

v. Silver, 97 A.2d 92, 94 (Pa. 1953).

      Mindful of the foregoing precepts and standards of review applicable to

Appellant’s issues, we carefully examined the certified record. Instantly, on

January 23, 2014, the trial court granted a judgment of non pros in favor of

GLOHA    and   Physicians,   which   detailed   the    factual    background    and

procedural posture of this action.      The January 23, 2014 order, in its

attached opinion, further addressed the July 18, 2013 praecipe for a rule to

show cause filed by Appellant seeking to substitute Dr. Dhaliwal with his

estate and its co-executors as parties to the action. The trial court’s January

23, 2014 order stated that Dr. Dhaliwal’s estate and its co-executors shall

not be substituted as parties to the action.

      On February 3, 2014, Appellant timely petitioned for relief from the

judgment of non pros in favor of GLOHA and Physicians pursuant to


                                      -4-
J-A01040-15



Pa.R.C.P. 3051.   On February 13, 2004, the trial court denied Appellant’s

petition relying on the rationale the trial court espoused in its January 23,

2014 order and finding that Appellant had not satisfied the requirements for

relief under Pa.R.C.P. 3051.

      On March 3, 2014, the trial court granted judgment of non pros in

favor of PON and RCC for the reasons which were set forth in the trial court’s

January 23, 2014 order.        On March 15, 2014, Appellant filed a timely

petition for relief from the judgment of non pros in favor of PON and RCC

pursuant to Pa.R.C.P. 3051.      On March 20, 2014, the trial court denied

Appellant’s petition. In its March 20, 2014 order, the trial court again relied

on its January 23, 2014 order, and found that Appellant had not met the

requirements set forth in Pa.R.C.P. 3051.

      On April 2, 2014, Appellant filed a notice of appeal from the trial

court’s March 20, 2014 order denying Appellant’s Rule 3051 petition for

relief from the judgment of non pros in favor of PON and RCC. On April 17,

2014, Appellant filed an amended notice of appeal to include an appeal from

the trial court’s February 13, 2014 order denying Appellant’s petition for

relief from the judgment of non pros in favor of GLOHA and Physicians.

      On August 20, 2014, GLOHA and Physicians filed a motion to quash

this appeal as untimely. Ordinarily, Appellant would have been required to

appeal the trial court’s February 13, 2014 order denying Appellant’s Rule

3051 petition regarding GLOHA and Physicians by on or before March 17,

2014. See Bartolomeo, 69 A.3d at 611 n1; 613-614 (Pa. Super. 2013);

                                     -5-
J-A01040-15



see also Pa.R.A.P. 903(a). However, given the particular facts of this case,

the nature of the allegations, and the interplay between the parties, we are

not persuaded that the action was completely resolved by the trial court’s

February 13, 2014 order such that Appellant was required to appeal by

March 17, 2014.          See Southwestern Energy Production Co. v. Forest

Resources, LLC, 83 A.3d 177, 184 (Pa. Super. 2013) (an order is not final

and immediately appealable where it does not “completely resolve the

dispute”). Rather, we find that based on the particular circumstances of this

action, Appellant was required to file his appeal from the March 20, 2014

order which completely resolved this dispute. Therefore, we deny GLOHA’s

and Physicians’ motions to quash this appeal.

        After a careful examination of the record and applicable case law, we

have determined that Appellant’s claims of trial court error lack merit.            In

disposing of this appeal, we adopt and incorporate as our own the Honorable

Shad Connelly’s January 23, 2014, February 13, 2014, and March 20, 2014

orders.        These orders, collectively and in a well-reasoned and well-written

fashion, address Appellant’s challenges to the trial court’s denial of

Appellant’s Rule 3051 petitions for relief from the judgments of non pros in

favor     of    GLOHA,    PON,   RCC,   and   Physicians,   and   the   trial   court’s

determination not to substitute Dr. Dhaliwal’s estate and its co-executors for

Dr. Dhaliwal as parties to this action. We therefore adopt the trial court’s

January 23, 2014, February 13, 2014, and March 20, 2014 orders in

affirming the trial court’s denial of Appellants’ Rule 3051 petitions and in

                                         -6-
J-A01040-15



declining to substitute Dr. Dhaliwal and its co-executors as parties to this

action.

      Order affirmed.     Motions to quash appeal filed by GLOHA and

Physicians denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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EDWARD T. O'BRIEN, M.D. ,                         IN THE COURT OF COMMON PLEAS
          Plaintiff                               OF ERIE COUNTY, PENNSYLVANIA

                    v.                            CIVI L DIVISION

GREAT LAKES ONCOLOGY
                                                                                                       ~
HEMATOLOGY, INC., PHYSICIAN                                                         .-
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and JAN M. ROTHMAN, M.D.                                                         0;0       -0        -:; >
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                                     OPINION                                         •     ~   :,.

Connelly, J. JanuaryJi, 2014

      The matter before the Court is pursuant to Motions for Judgment of Non Pros

filed by Great Lakes Oncology Hematology Associates, Inc., (hereinafter "Defendant

GLOHA"), and Philip H. Symes, MD., Conrad J. Stachelek, M.D., and Jan M. Rothman,

MD ., (hereinafter "M.D. Defendants"), as well as a Rule to Show Cause why the

Executors of Ranjit S. Dhaliwal, M.D:s Estate should not be substituted for Defendant

Dhaliwal. Plaintiff opposes the Motions fo r Judgment of Non Pros.

                                   Statement of Facts

      Plaintiff asserts he is owed vacation and disability compensation pursuant to a

medically related leave from his practice with Defendant GLOHA between June 6, 2003.

and October 9, 2003. Am. Compl. 1M! 35-37. Plaintiff also avers Defendant GLOHA

owes him the val ue of his shares pursuant to the termination of his employment. Id. at

1172. Plaintiff asserts M.D. Defendants and Defendant Dhaliwal "acted fraudulently with

respect to the transfer of receipt of the funds distributed by GLOHA." fd. at 11106.




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       On March 3, 2013, Defendant Dhaliwal passed away. Plaintiff's Praecipe, 1\1.

On July 18, 2013, Plaintiff filed a Praecipe for Rule upon Brinderjit S. Dhaliwal and

Gurdeet S. Dhaliwal, the executors of Defendant Dhaliwal's estate, to show cause why

they should not be substituted as Defendants. Id. On August 12, 2013, Brinde~it S.

and Gurdeet S. Dhaliwal (hereinafter "Executors") filed an Answer and New Matter and

Response contending they should not be substituted as Defendants due to Plaintiffs

"unreasonably and unjustifiably delayed prosecution of this action . .. [which1 would

result in significant prejudice." Executors' Ans. and New Matter and Resp. 1·2.

       On September 3, 2013, M.D. Defendants filed their Motion for Judgment of Non

Pros . On September 11 , 2013, Defendant GLOHA filed its Motion for Judgment of Non

Pros. Plaintiff filed Responses and a Memorandum in opposition to these motions.

                                    Analysis of Law

       The issue of whether to enter judgment of non pros due to a plaintiffs fa ilure to

prosecute an action within a reasonable time rests within the discretion of the trial court.

Herb v. Snyder, 686 A.2d 412, 415 (Pa. Super. 1996) (citation omitted). The

Pennsylvania Supreme Court held :

              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.

Jacobs v. Hal/oran , 710 A.2d 1098, 1103 (Pa. 1998) (emphasis in original).




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                       1
       Defendants assert a judgment of non pros should be entered "because Plaintiff

has failed to pursue his causes of action with due diligence, Plaintiff can show no

compelling explanation for his lack of due diligence and [Defendants have] sustained

actual prejudice from the failure of Plaintiff to proceed       w~h   due diligence." Def.

GLOHA 's Mot. for J. of Non Pros 1131, M.D. Defs. ' Mot. for J. of Non Pros 1119.

Plaintiff argues the Motions for Judgment of Non Pros should be denied as the

Defendants have not met their burden of proof. PI. 's Mem. In Opp. 2.

       ~ [T] h e   law is settled that it Is plaintiff's burden to move a case to trial, and it is

plaintiff, not defendant, who bears the risk of not acting within a reasonable time. ~

Pennridge E/ec., Inc. v. Souderton Area Join t Sch. Auth. , 615 A.2d 95, 99 (Pa.

Super. 1992). In the instant case, Defendant GLOHA asserts "[s)ince March 10, 2010,

there has been no substantive docket or nondocket activity in this case other than a

filing of a joint stipulation for the entry of a protective order on May 24, 2013, a period in

excess of three and one-half (3-1/2) years." Def. GLOHA's Mot. for J. o f Non Pros                   11
16. Plaintiff argues relying on      ~time   alone in support of seeking a judgment of non pros .

. .is misplaced." PI. 's Mem. In Opp. 4. Plaintiff asserts non-docket activity, including

drafting of the protective order, the deposition of Defendant Dhaliwal for a different

case, interviews and attempted interviews of non-party witnesses, and Plaintiffs

attempts to schedule party depositions demonstrate his due diligence in moving the

case forward. PI.'s Mem. In Opp. 8-9.

       The Pennsylvania Superior Court found non-<iocketed disrovery such as

"interrogatories, requests for admissions, and requests for production of documents" to

1M.D. Defendants and Defendant GLOHA's Motions for Non Pros shall be addressed together for ease of
disposition.


                                                    3
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     be insufficient to establish due diligence where the activity took place during only two (2)

      months of a four year period. Hughes v. Fink, Fink & Assocs., 718 A.2d 316, 319-320

     (Pa. Super. 1998) (' [IJt is Appellant's position that despite the fact that almost four years

     have elapsed without docket activity, a mere two months of non-docketed discovery is

     sufficient to establish due diligence. We are unpersuaded.") See Madrid v. AlpIne MI.

      Corp., 24 A.3d 380, 383-384 (Pa. Super. 2011) appeal denied 2012 Pa. LEXIS 599

      (March 21, 2012) (Two and a half years of inactivity led to the grant cf judgment of non

      pros.); Luffv. Allstate Ins_ Co., 2006 Phila. C!. Com. PI. LEXIS 422, '4 (Philadelphia

      2006 ) affirmed without opinion 929 A.2d 254 (Pa . Super. 2007) (Court granted a

      judgment of non pros due to Plaintiffs failure to move fOlWard with an underlying claim

      for four (4) years.)

             Here, Plaintiff contends non-<:tocket activity including "an initial draft of a
                                                                                        2
      protective order" in March of 2010, ten depositions taken in Dhaliwal's case between

      May 9, 2011 and June 1, 2012, and attempts to schedule depositions in the instant case

      startin g in January 2013 are sufficient to establish due diligence. PI. 's Mem. In Opp. 8-

      9. Defendant GLOHA argues Plaintiff did not id entify the seven (7) potential deponents

      in the instant case until April 7, 2013 and those deposttions could not be taken until

      Defendant Dhaliwal's executors are substituted in this action. PI. 's Mem. In Opp. 8..9,

      Def. GLOHA 's Br. in Supp. 3. Defendant GLOHA asserts ' Plaintiffs 'discussions' and

      strategy sessions with Dr. Dhaliwal relating to Dr. Dhaliwal's lawsuit did not advance

      Plaintiff's lawsuit." Def. GLOHA 's Mot. for J. of Non Pros, 1130.




      2 Dhaliwal v. The Regional Cancer Center, Docket No. 10774-2008.

                                                     4
                             - - - - - - - --- -                                  Circulated 01/09/2015 12:47 PM




       Here, the record reflects that during the over three (3) years of inactivity on the

docket depositions were taken for a different case involving Defendant Dhaliwal and the

M.D. Defendants, Plaintiff drafted but did not execute a protective order, and Plaintiff

attempted to schedule depositions. Plaintiffs attempts to sChedule depositions began in

January 2013, thus comprising only three months of activity before the death of

Defendant Dhaliwal. PI.'s Mem, In Opp, 8-9. The Court is unpersuaded by Plaintiffs

contentions that three months of non-docketed activity, as well as the drafting of one

document and depositions taken for a separate case, are sufficient to demonstrate due

diligence. Thus, the Court finds a lack of due diligence on the part of the Plaintiff in

failing to proceed with reasonable promptitude.

       Next, M.D. Defendants assert Plaintiff "can show no compelling reason for his

delay in pursuing this action,'" M.D. Defs. ' Br. in Supp. 8. Defendant GLOHA avers

"Plaintiffs strategy to suspend all progress in our case for more than three (3) years

wh ile Dr. Dhaliwal's lawsuit proceeded through discovery, did not move our case

forvvard at all and it is not the type nor quality of non-docket activity that is a 'compelling

reason' for docket inactivity." Def. GLOHA's Br. in Supp. 11. Plaintiff argues
                                                                                      n
Defendants have not taken into consideration "all activities and circumstances involving

the instant case. PI. 's Mem. In Opp. 12.

       The Pennsylvania Supreme Court has found non--docketed activity wcan be

examined in deciding whether a compelling reason        exists .~   Marino v. Hackman, 710

A.2d 1108, 1111 (Pa. 1998). In Marino the Court found:

               This case had an unusual amount of activity not entered on
               the docket: the death of Appellants' first attorney and the
               substitution of his partner, an attorney not known or selected
               by Appellants; the laking of depositions of all the parties; the


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              replacement of Appellants' second attorney because of
              Appellants' perception that he was not moving their case
              forward; the difficulties encountered by Appellants' third
              attorney in obtaining the case file from Appellants' seocnd
              attorney as well as difficulty in getting the second attorney to
              withdraw his appearance; the exchange of letters seeking a
              settlement of the case; and, finally, a telephone discussion of
              certifying the case ready for trial.
Id.

       Plaintiff avers he attempted to schedule deposttions in this case but "[s]cheduling

conflicts with counsel and their clients made this process very difficult.· Pt.'s Resp. to

Def. GLOHA's Mot. for Non Pros '1116 p. 6. In Hughes v. Fink, Fink & Assocs.. the

Superior Court found unpersuasive the plaintiff s contention that defendants' "failure to

respond to discovery requests caused the delay.. ." Hughes, 718 A.2d 320. ("We

remind Appellant of the well-established rule that it is the plaintiffs responsibility to

move the case forward . . .and the plaintiff who bears the risk of judgment of non pros if

he fails to act within a reasonable time to prosecute his case,-)

       Plaintiff also contends "it often times is more productive and cost effective to

pursue infonmal discovery . .. " PI.'s Mem. ln Opp. 13. However, "[ijt has been held

many times that .. .financial considerations do not present compelling reasons for delay."

Mackintosh-Hemphill Int'l v. Gulf & W. , 679 A.2d 1275,1280 (Pa. Super. 1996)

quoting County of Erie v. Peerless Heater Co., 660 A.2d 238, 240 (Commwlth. 1995).

See Dorich v. DiBacco, 656 A.2d 522, 524-525 (Pa. Super. 1995) (Finding plaintiffs

claim to be "economically unable to obtain" expert witnesses to not be a compelling

reason for docket inactivity.)

       Plaintiff also avers the discovery in Defendant Dhaliwal's case benefited both

parties as "the underlying scheme, motive, and defendants are substantially identical in

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both suits thus , leading to the decision that collaboration between Plaintiff and Dhaliwal

made sense." PI. 's Resp. to Def. GLOHA 's Mot for Non Pros ~ 29. M.D.

Defendants assert "it is outrageous to suggest that the taking of a party's deposition in

one lawsuit constitutes   a~tion   in a separate lawsuit. Moreover, the parties in each action

are not identical." M.D. Defs.' Br. in Supp. 9. Defendant GLOHA asserts it is not a

party in Dr. Dhaliwal's law suit and "the salient events allegedly supporting the Dhaliwal

lawsuit and those of the O'Brien lawsuit are separated by at least three (3) years." Def.

GLOHA's Mot. for J. of Non Pros, 1130. For example:

              Dr. O'Brien's lawsuit arises from events that occurred in
              2003 and early 2004 allegedly resulting in his loss of
              employment with GLOHA and loss of his medical privileges
              at ReG. Or. Dhaliwal's suit involves events that occurred in
              the first ,;X months of 2007 involving the negotiation of the
              2007 Physician Services Agreement between PON and the
              various physician oncologists employed by PON.

M.D. Defs.' Sr. in Supp. 4.

       The Court of Common Pleas of Bucks County found no compelling reason

existed for almost ten years of docket inactivity where:

               Appellant's counsel explains that for a period beginning in
              the fall of 2001, he was involved in class action litigation
              surrounding the diet drug 'FenPhen.' Allegedly, counsel's
              around-the-clock involvement with the class-action litigation
              made it "extremely difficult, if not altogether impossible" to
              pursue the present litigation. The Court certainly recognizes
              the efforts of Appellant's counsel in relation to the 'FenPhen'
              litigation . Such an obligation, however, does not excuse an
              attorney from performing due diligence on other cases he
              has willingly undertaken.

Londergan v. Asamura, 25 Pa. D. & C.5th 18, 24 (Bucks 2011) affirmed without

opinio n 48 A.3d 489 (Pa. Super. 2012).




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      However,

             [e]xamples of situations in which there will be a per se
             determination that there is a compelling reason for the delay,
             thus, defeating dismissal, are cases where the delaying
             party establishes that the delay was caused by bankruptcy,
             liquidation, or other operation of law, or in cases awaiting
             significant developments in the law.

Penn Piping, Inc. v.lnsurance Co. ofN. Am., 603 A.2d 1006,1009 n.2 (Pa. 1992)

overruled on other grounds by Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998).

      Unlike the non-docketed activity in Marino, Plaintiffs non.{jocketed proceedings

between March 1, 2010, and May 24, 2013, are not sufficient to establish a compelling

reason for the over three year delay in pursuing the instant case. Here, discovery

completed in the separate case, the economic benefits of Plaintiffs   ~informal   discovery",

and scheduling conflicts with other counsel do not create compelling reasons for the

delay. Although the parties agree that after Defendant Dhaliwal's death depositions

could not be scheduled until his executors were substituted in this case, the Court finds

this is not a compelling reason for Plaintiffs delay as over three years had passed

without meaningful docket or non-docketed activity before Defendant Dhaliwal's death.

Thus, the Court finds Plaintiff has presented no compelling reason for the delay in

pursuing thIs case.

       Finally, M.D. Defendants assert they have been prejudiced because:

              First, the testimony of Dr. Dhaliwal, the former President of
              GLOHA, as co-defendant on Counts XIII through XV of the
              Amended Complaint and a material witness, is not available
              to benefit the Remaining Physician Defendants' defense.
              Second, to the extent Dr. O'Brien would offer self·serving
              testimony of his acknowledged meetings and conversations
              with Dr. Dhaliwal , Dr. Dhaliwal is no longer available to rebut
              that self-serving testimony. Third, the Remaining Physician
              Defendants are prejudiced by the fact that any verdict on


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                 Counts XIII through XII would be their sole responsibility
                 without any contribution from Or. Dhaliwal or his estate.

  M.D. Defs.' Br. in Supp. 12.

         Plaintiff argues M.D. Defendants' allegations "fall short of the burden .. .to

  establish a 'substantial diminution' of their ability to defend against this action . .. " PI. 's

  Resp. to M.D. Defs.' Mot. for Non Pros         'I! 19(c)(i-iii).   Plaintiff asserts M.D. Defendants

 have:

                 a) already deposed Dhaliwal in his related action, b) cannot
                 cla im prejudice for any judgment that may have to be paid, in
                 particular, since they did not file any cross·claim against
                 Dhaliwal, and c) [M.D. Defendants] practiced with Dhaliwal
                 and were in as good or a better position to testify as to any
                 conversation s with Dhaliwal.

  PI. 's Resp. to M.D. Defs. ' Mot. for Non Pros 'I! 19(c)(I';;;) .

         Defendant GLOHA asserts it has been prejudiced by Defendant Dhaliwal's death

  as he "was one Of the shareholders andlor officers of GLOHA during the events

  allegedly giving rise to Plaintiffs causes of action." Def. GLOHA 's Mot. for J. of Non

  Pros, '1121. Defendant GLOHA avers Dhaliwal is alleg.edly "one of the individuals" liable

  for failing to pay Plaintiffs salary and violating the Fraudulent Conveyance Act. Def.

  GLOHA's Mot. for J. of Non Pros, 'Il'Il21-22. Plaintiff argues Defendant GLOHA has

  not "suffered the required degree of prejudice to warrant entry of a judgment of non

  pros .. ." PI. 's Resp. to Def. GLOHA's Mot. for J. of Non Pros, 'I! 21.

          "The Superior Court has further defined prejudice as 'any su bstantial diminution

  of a party's ability to   prope~y   present its case at trial.'" Jacobs, 710 A.2d 1103; quoting

  Metz Contracting Inc. v. Riverwood Builders, Inc., 520 A.2d 891 , 894 (Pa. Super.

  1987). Importantly, the Supreme Court of Pennsylvania has held that prejudice can be



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established by the death or absence of a material witness . James Brothers Co. v.

Union Banking and Trust Co. of DuBois. 247 A.2d 587. 589 (Pa. 1968).

       Plaintiff avers Defendant Dhaliwal's death has not prejudiced the M.D.

Defendants as they do not know what Plaintiff "is yet to testify to on this case. Nor do

they even know if he will rely upon any statements made by Dhaliwal that cannot be

independently verified by other sources. or for that matter. by any of the other

defendants in this case." PI. 's Mem. in Opp. 21 . Defendant GLOHA asserts "[t]here is

nothing in the record to permit us to know" that the information known by Dr. Dhaliwal

"can be gathered from the [M.D. Defendants]." Def. GLOHA 's Br. in Supp. 12-13.

Defendant GLOHA also asserts as it is not a party to Dr. Dhaliwal's lawsuit it did not

have the opportunity to partiCipate in his deposition. Def. GLOHA's Br. in SUpp. 12.

       Plaintiffs allegations "occurred in 2003 and the first half of 2004. more than nine

to ten years ago." M.D. Defs.' Mot. for J. of Non Pros.      ~   4. "No depositions have been

taken in this case, and the testimony of a critical Defendant. Dr. Dhaliwal, is no longer

possible." M.D. Defs.' Mot. for J. of Non Pros.     ~   18. The Pennsylvania Supreme

Court has found. "[wle recognize that defendants may be prejudiced by undue delays in

litigation· - memories fade, witnesses disappear and documents become lost or are

destroyed." Jacobs. 710 A.2d 11 02. Here. ten years have passed since the events

alleged in the Amended Complaint, no depositions have ever been taken , and one

party/material witness has died. Thus. the Court finds Defendant GLOHA and the M.D.

Defend ants have been prejudiced by Plaintiffs delay. having establi shed a substantial

diminution of their ability to properly present their case at trial.




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            Therefore, as Defendant GLOHA and the M.D. Defendants have established

     Plaintiff's lack of due diligence in proceeding with the instant case, no compelling

     reason for the delay, and that they have suffered actual prejudice, the Defendants'

     Motions for Judgment of Non Pros are granted. As the Motions for Non Pros have been

     granted neither the Estate of Ranjit S. Dhaliwal, M.D., or Brinderjit S. Dhaliwal and

     Gurdeep S. Dhaliwal, the Executors of the Estate, shall be substituted as parties.




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