J-A28005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHEILA T. FARRELL AND MARTIN                   IN THE SUPERIOR COURT OF
SHERIDAN A/K/A LEO MARTIN                            PENNSYLVANIA
SHERIDAN

                       v.

ANNA ROHMAN, VERA CC. GORDON,
GWENDOLYN CRELLIN, AND ROBERT
SCHMIDT

APPEAL OF: SHEILA T. FARRELL                        No. 934 EDA 2015


                  Appeal from the Order Entered March 2, 2015
                  In the Court of Common Pleas of Pike County
                       Civil Division at No(s): 2431 of 2010


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED NOVEMBER 04, 2015

       Appellants, Sheila T. Farrell and Martin Sheridan a/k/a/ Leo Martin

Sheridan, appeal from the order entered in the Pike County Court of

Common Pleas, granting the motion for non pros of Appellees, Anna Rohman

and Robert Schmidt.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

Appellants are the owners of real property known as Rohman’s Hotel. The

septic system serving the hotel is located on a separate property owned by

Appellants and is accessible only by a service road, which crosses real

____________________________________________


1
  The court entered default judgment against Vera CC. Gordon and
Gwendolyn Crellin on February 8, 2011; they are not parties to this appeal.
J-A28005-15


property    owned   by    Appellees.   Appellants   allege   Appellees   blocked

Appellants’ access to the septic system property by depositing a pile of dirt

in the middle of the service road on or about May 4, 2009. On December

21, 2009, Appellants filed a complaint against Appellees seeking to prevent

Appellees’ alleged unwarranted interference with Appellants’ access to their

septic system property.     On February 6, 2010, Appellees filed preliminary

objections to Appellants’ complaint.     After oral argument on Appellees’

preliminary objections, Appellants withdrew their complaint on March 23,

2010.

        On November 5, 2010, Appellants filed a second complaint against

Appellees, again seeking to prevent Appellees’ alleged interference with

Appellants’ access to their property. Appellants filed a motion for summary

judgment on August 16, 2011. After a hearing, the court denied Appellants’

motion on October 5, 2011. On April 23, 2012, Appellants’ counsel, Sanford

D. Beecher, died.        After Mr. Beecher’s death, other attorneys in Mr.

Beecher’s law firm took over Appellants’ case against Appellees. Appellees’

counsel notified Appellants’ new counsel, by letter dated September 24,

2013, that there had been no movement in the case, for almost two years,

since the court denied Appellants’ motion for summary judgment on October

5, 2011. Appellants’ new counsel did not respond to Appellees’ letter, and

no further action was taken in Appellants’ case.

        On September 12, 2014, Appellees filed a motion for non pros against


                                       -2-
J-A28005-15


Appellants. Appellants filed a response to Appellees’ motion on September

18, 2014, which explained that the reason for the delay was the death of Mr.

Beecher. Appellants’ response also stated they were ready to proceed with

the case in an expedited manner.      On January 6, 2015, the court held a

hearing on Appellees’ motion for non pros, and the court granted Appellees’

motion by order dated March 2, 2015.       Appellants filed a timely notice of

appeal to this Court on March 27, 2015.       On March 31, 2015, the court

ordered Appellants to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellants timely complied on

April 17, 2015.

      Appellants raise the following issues for our review:

         THE TRIAL COURT ERRED IN GRANTING A MOTION FOR
         NON PROS IN:

            A. FAILING TO GIVE ANY OR ADEQUATE WEIGHT
            TO THE IMPACT ON THE CASE OF THE DEATH OF
            THE ONLY ATTORNEY WHO HANDLED THE CASE FOR
            ALL THE YEARS THAT IT HAD BEEN PENDING,
            SANFORD D. BEECHER, ESQUIRE, WHO DIED ON
            APRIL 23, 2012.

            B. FAILING TO REQUIRE THAT [APPELLEES] SHOW
            ADEQUATE PREJUDICE FROM THE DELAY IN
            PROSECUTING THE SUIT.

            C. []   FINDING   THAT    THE   INFORMATION
            SUBMITTED BY [APPELLEES] CONSTITUTED ACTUAL
            EVIDENCE OF PREJUDICE.

(Appellants’ Brief at 7).

      After a thorough review of the record, the briefs of the parties, the


                                     -3-
J-A28005-15


applicable law, and the well-reasoned opinions of the Honorable Joseph F.

Kameen, we conclude Appellants’ issues on appeal merit no relief. The trial

court opinions comprehensively discuss and properly dispose of the

questions presented. (See Opinion in Support of Order Granting Appellees’

Motion for Non Pros, filed March 2, 2015, at 2-4, and Trial Court Opinion,

filed May 7, 2015, at 2-6) (finding: Appellees sent letter, dated September

24, 2013, to Appellants’ counsel aimed at moving case to resolution;

however, Appellants’ counsel did not respond and no docket activity followed

receipt of letter; Appellants took action in case only after Appellees filed

motion for non pros on September 12, 2014; Appellants’ failure to respond

to Appellees’ letter and lack of docket activity in case for nearly three years

supports conclusion that Appellants failed to proceed promptly with case;

court acknowledged that Appellants’ counsel’s death justified some delay in

proceedings, but it did not excuse nearly three-year delay; Appellants failed

to provide additional explanation for delay, so Appellants lacked compelling

reason for delay in prosecuting case; this delay caused significant prejudice

to Appellees because Appellee Rohman is ninety years old, 2 suffers from

advancing dementia, and will likely be unable to testify in case; at oral

argument, Appellee Schmidt presented uncontested testimony concerning
____________________________________________


2
  The opinion states that Appellee Rohman is ninety years old; however, at
the hearing on Appellees’ motion for non pros, Appellee Schmidt testified
that Appellee Rohman is in fact ninety-four years old. (See N.T. Motion for
Non Pros Hearing, 1/6/15, at 7).



                                           -4-
J-A28005-15


Appellee Rohman’s condition, which supports finding that Appellee Rohman

has suffered diminution of her ability to present her case; court concluded

Appellees met burden for judgment of non pros by showing lack of due

diligence   by   Appellants   in   prosecuting   their   case   with   reasonable

promptitude, lack of compelling reason for delay, and significant prejudice to

Appellees resulting from delay; therefore, court properly granted Appellees’

motion for non pros). Accordingly, we affirm on the basis of the trial court’s

opinions.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2015




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                          IN THE COURT OF COMMON PLEAS OF
                              PIKE COUNTY, PENNSYLVANIA
                                        CIVIL

     SHEILA T. FARRELL,AND
     MARTIN SHERIDAN, AfKJ A LEO
     MARTIN SHERIDAN,

                    Plaintiffs,
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                                              ORDER                                        C°'                                , ...

            AND NOW, this         U,. day of March, 2015, upon consideration of Defendants
     Anna Rohman's and Robert Schmidt's Motion to Dismiss for Failure to Prosecute Matter,

     Plaintiff Sheila T. Farrell's Answer thereto and following oral argument held thereon, it is

     hereby ORDERED that Defendants' Motion is hereby GRANTED, and Plaintiffs'

     Complaint filed Novembers; 2010 is DISMISSED WITH PREJUDICE.

                                          BACKGROUND

            The case sub judice arises from a property dispute. Sheila T. Farrell and Martin

     Sheridan ("Plaintiffs") are the owners of real property known as Rohman's Hotel. The

     septic system servicing Rohman's Hotel is located on a separate property owned by

     Plaintiffs and is only accessible by a service road which crosses real property owned by

     Anna Rohman, Vera C. Gordon, Gwendolyn Crellin, and Robert Schmidt ("Defendants").

     Defendant Schmidt blocked Plaintiffs' access to the septic property by depositing a pile of

     dirt in the middle of the service road on or about May 4, 2009. Plaintiffs filed a Complaint

     ("Original Complaint") on or about December 21, 2009. Defendants filed Preliminary

     Objections on February 16, 2010. Argument on Defendants' Preliminary Objections was
                                                                       Circulated 10/06/2015 04:34 PM


scheduled for March 23, 2010. Following oral argument in March, 2010, wherein Plaintiffs

made a Motion to Withdraw the Original Complaint, the Court entered an Order granting

Plaintiffs' Motion to Withdraw without prejudice.

       Plaintiffs filed a new Complaint ("Complaint") on November 5, 2010. Defendants

filed an Answer and New Matter shortly thereafter.         Plaintiffs then filed a Reply to

Defendants' New Matter on December 9, 2010. On February 8, 2011, the Court granted

default judgment against Defendants Gordon and Crellin. On August 16, 2011, Plaintiffs

filed a Motion for Summary Judgment which, following oral argument, the Court denied

on October 5, 2011. No further action was taken regarding the case until September 12,

2014, when Defendants Filed the Motion to Dismiss for Failure to Prosecute ("Defendants'

Motion") at issue herein.

                                      DISCUSSION

       The issue presented by Defendants' Motion is whether Plaintiffs' Complaint should

be dismissed when there has been no action in the case since October, 2011, and

communications designed to move the matter forward went unanswered by Plaintiffs

counsel.

       The rule governing dismissal for failure to prosecute is a three-part test found in the

case of James Bros. Lumber Co. v. Union Banking and Trust Co. of DuBois. In that case,

the Court stated:

       "A Court may properly enter a judgment of non pros 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 ... "

James Bros. Lumber Co. v. Union Banking & Trust Co. of DuBois, 247 A.2d 587, 589 (Pa.

1968). Granting of non pros is based upon the equitable principle oflaches which does not

involve the passage of a specific amount of time. Jacobs v. Halloran, 710 A.2d 1098, 1102

(Pa. 1998), citing Manson v. First National Bank, 77 A.2d 399 (Pa. 1951). Laches arises
                                              2
                                                                        Circulated 10/06/2015 04:34 PM


when a defendant's position or rights are so prejudiced by length of time and inexcusable

delay that it would be an injustice to permit presently a claim against him. Id., citing Bach

Estate, 231 A.2d 125, 130 (Pa. 1967).            Prejudice can be defined as "any substantial

diminution of a party's ability to properly present its case at trial." Metz Contracting, Inc.

v. Riverwood Builders, Inc., 520 A.2d 891, 894 (Pa. Super. 1987). A Party who seeks the

equitable relief provided by the entry of a judgment of non pros must do so with clean

hands. Jacobs, at 1103, citing Mudd v. Nosker Lumber, Inc., 662 A.2d 660 (Pa. Super.

1995).

         Defendants have shown want of due diligence in proceeding with promptitude,

referencing a letter sent to Plaintiffs' counsel on or about September 24, 2013. Def.s' Mot.,

,r12. Plaintiffs, in their Answer filed September 18, 2014, admit to receiving the same.

Pls.' Ans.,   ,rt 2.   The Court notes no changes were made to the docket following receipt of

the aforementioned         letter.   Qnly after Defendants filed the Motion at issue here did

Plaintiffs act. The Court also notes that that nearly three (3) years have passed since

Plaintiffs last action in this case. While there can be no presumption based upon the length

of delay, the fact that Plaintiffs were reminded by way of the September, 2013 letter and

failed to act promptly thereafter supports the conclusion that Plaintiffs failed to proceed

with promptitude.

         For similar reasons, Defendants have adequately shown Plaintiffs lack a compelling

reasons for the delay.         Plaintiffs claim that the death of Attorney Sanford D. Beecher

("Attorney Beecher"), under whose exclusive supervision this case commenced and was

executed, is a reasonable explanation for the nearly three-year delay, and that dismissal of

the case at this time because of same would be excessive. This Court agrees that the death

of Attorney Beecher is a reasonable explanation for a delay in prosecuting the case.

However, Attorney Beecher's passing fails to explain why the delay lasted nearly three (3)

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                                                                       Circulated 10/06/2015 04:34 PM


years.

         Finally, the lengthy delay in prosecution of this case has caused prejudice to

Defendants in this case. At oral argument, Defendant Schmidt testified that Defendant

Rohman executed a Power of Attorney in his favor, currently suffers from dementia, and

would likely not be able to testify as to her role in the present case. Defendant Rohman

has therefore suffered diminution of her ability to properly present her case as a result of

the lengthy delay.

         Defendants have met the burden for this Court to rule in favor of granting dismissal

for non pros by showing a want of due diligence in proceeding with reasonable

promptitude, the lack of a compelling reason for delay, and that the delay in this case has

caused prejudice to Defendants.

                                       CONCLUSION

         Accordingly, Defendants' Motion to Dismiss for Failure to Prosecute Matter is

hereby GRANTED and Plaintiffs' Complaint is DISMISSED WITH PREJUDICE.



                                                       BY THE COURT:




         Hugh Rechner, Esq.
         Thomas A. Farley, Esq.
         John H. Klemeyer, Esq.
JC




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                        IN THE COURT OF COMMON PLEAS OF
                            PIKE COUNTY, PENNSYLVANIA
                                   CIVIL DIVISION

SHEILA T. FARRELL, AND
MARTIN SHERIDAN, A/KIA LEO
MARTIN SHERIDAN,

               Appellants,

v.                                                     2431-2010 CIVIL

ANNA ROHMAN, VERA C. GORDON,
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GWENDOLYN CRELLIN, AND                                                                                 -;;.          I •    -;ti
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OPINION SUBMITTED PURSUANT TO PENNSYLVANIA RULE OF APPEL!~T~                                                                       rP
                       PROCEDURE 1925                    ~::,

       AND NOW, this         7..f'h day of May, 2015, after careful review of the record, this
Court continues to stand by its decision in the above-captioned matter and respectfully requests

the Superior Court uphold this Court's Order of March 2, 2015. This Court would also like to

add, pursuant to Pennsylvania Rule of Appellate Procedure 1925, the following:



                   I.       FACTUAL AND PROCEDURAL HISTORY

       The case sub judice arises from a property dispute. Sheila T. Farrell and Martin

Sheridan ("Plaintiffs") are the owners of real property known as Rohman's Hotel. The septic

system servicing Rohman's Hotel is located on a separate property owned by Plaintiffs and is

only accessible by a service road which crosses real property owned by Anna Rohman, Vera

C. Gordon, Gwendolyn Crellin, and Robert Schmidt ("Defendants"). Defendant Schmidt

blocked Plaintiffs' access to the septic property by depositing a pile of dirt in the middle of the
                                                                           Circulated 10/06/2015 04:34 PM




service road on or about May 4, 2009. Plaintiffs filed a Complaint on or about December 21,

2009. Defendants filed Preliminary Objections on February 16, 2010. Argument on

Defendants' Preliminary Objections was scheduled for March 23, 2010. Following oral

argument in March, 2010, wherein Plaintiffs made a Motion to Withdraw the Complaint, the

Court entered an Order granting Plaintiffs' Motion to Withdraw without prejudice.

        Plaintiffs filed a new Complaint on November 5, 2010. Defendants filed an Answer

and New Matter shortly thereafter. Plaintiffs filed a Reply to Defendants' New Matter on

December 9, 2010.       On February 8, 2011, the Court granted default judgment against

Defendants Gordon and Crellin. On August 16, 2011, Plaintifs filed a Motion for Summary

Judgment which, following oral argument, this Court denied on October 5, 2011. No further

action was taken regarding the case until September 12, 2014, when Defendants Filed a Motion

to Dismiss for Failure to Prosecute ("Defendants' Motion"). Following oral argument on

January 6, 2015; the Court granted Defendants' Motion and this appeal followed.



                              II.    STANDARD OF REVIEW

       "The question of granting a non pros due to the failure of the plaintiff to prosecute his

action within a reasonable time rests within the discretion of the trial court and will not be

disturbed absent an abuse of discretion." Jacobs v. Halloran, 710 A.2d 1098, 1101 (Pa. 1998).

"An abuse of discretion is not merely an error in judgment; rather it occurs when the law is

overridden or misapplied, or where the judgment exercised is manifestly unreasonable or the

result of partiality, prejudice, bias or ill will." Pilon v. Bally Engineering Structures, 645 .2d

282, 285 (Pa. Super. 1994).

       The plaintiff has an affirmative duty to move its case forward. Independent Technical




                                                2
                                                                          Circulated 10/06/2015 04:34 PM




Services v. Campo 's Exp., Inc., 812 A.2d 1238, 1240 (Pa. Super. 2002). "The trial court, as

all judiciary, has a duty to encourage the timely resolution of all disputes." Id Judgment non

pros is proper when (a) a party to the proceeding has shown a want of due diligence in failing

to proceed with reasonable promptitude; (b) there has been no compelling reason for the delay;

and (c) the delay has caused prejudice to the adverse party. James Bros; Lumber Co. v. Union

Banking and Trust Co. of Dubois, 247 A.2d 587, 589 (Pa. 1968). Where a party moves for

judgment non pros based upon failure to prosecute with reasonablepromptitude, the 3-part test

in James Bros. is implicated. Broglie v. Union Township, 465 A.2d 1269, 1271 (Pa. Super.

1983). "If any substantial diminution of a party's ability to properly present its case at trial

results, then prejudice can be said to have attached." Metz Contracting, Inc. v. Riverwood

Builders, Inc., 520 A.2d 891, 894.(Pa. Super. 1987). Pike County, Pennsylvania, Local Rule

230.2 permits the termination of cases after at least two (2) years of inactivity plus sixty (60)

days.



                                    III.     DISCUSSION

        Sheila T. Farrell's (" Appellant") Statement of Matters Complained of on Appeal raises

four (4) issues:

        ( 1) Whether the Court erred in failing to give any or adequate weight to the death of

           Attorney Sanford D. Beecher ("Attorney Beecher") on April 23, 2012, the sole

           attorney attached to this case;

        (2) Whether the Court erred in failing to require that Defendants show adequate

           prejudice from the delay in this case;

        (3) Whether the Court erred in findiri.g information submitted by Defendants




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                                                                        Circulated 10/06/2015 04:34 PM




           constituted actual evidence of prejudice; and

       (4) Whether the Court erred by ruling on the Motion without receiving supporting

           evidence on the record and basing the decision solely on argument of counsel.

The Court will address the issues raised in three (3) parts.




       A. The Court adequatelv weighed the death of Attorney Beecher before granting non

           pros   in this case.

       The first issue presented in this appeal is whether the Court considered and adequately

weighed the death of Attorney Beecher when Attorney Beecher was both Plaintiffs original

attorney and the sole attorney handling the case until his death in April, 2012. The Court

believes the death of Attorney Beecher was adequately considered and weighed in this case.

       At oral argument, Appellant offered the death of Attorney Beecher, under whose

exclusive supervision the case was commenced and executed, as reasonable explanation for

the delay in prosecution. In fact, this Court agreed with Appellant's averment, but only to

limited extent. The Order dated March 2, 2015 indicates this Court recognized the passing of

Attorney Beecher as justification for some delay in proceedings. However, the Court also

considered a letter sent on or about September 24, 2013, from Defendants' counsel to

Appellant's counsel aimed at moving the case to resolution. Receipt of the letter was admitted

by Appellant's counsel at oral argument. Ultimately, this Court determined the three-year

delay, especially in light of the September 24 letter, was neither a reasonable nor compelling

explanation for the lengthy delay in the prosecution of this case.

       Therefore, this Court adequately considered and weighed the passing of Attorney

Beecher before finding no compelling reason for the delay and granting Defendants' Motion.




                                                4
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        B. The Court required and considered Defendants' showing of Prejudice and did not

            err in finding actual evidence of oreiudice in this case.

        The second issue presented in this appeal is whether the Court erred by failing to require

Defendants to show adequate prejudice resulting from the delay in prosecution and finding

actual evidence of prejudice when uncontested testimony indicated that Defendant Rohman's

advanced age (90 years) and dementia would limit her ability to present her case. This Court

believes that the testimony taken· at oral argument adequately demonstrates a substantial

diminution of Defendants' ability to properly present the case at trial.

       At oral argument, Defendant Schmidt, nephew to Defendant Rohman, testified to

Defendant Rohman's advanced age. He also indicated that Defendant Rohman executed a

Power of Attorney in his favor because she suffered from dementia and would be severely

limited in her ability to testify in the case .. This testimony went unchallenged at oral argument.

       Therefore, the Court believes a showing of prejudice was properly required and

considered before ruling on Defendants' Motion.




       C. Contrarv to Appellant's      claim. the Court did receive testimony in support of

           Defendants' Motion.

       The third and final issue raised by Appellant is whether the trial court erred by making

a ruling when Defendants presented no witnesses or other evidence in support of Defendants'

Motion. This Court believes no error occurred because the testimony of Defendant Schmidt

was presented in support of the Motion.

       During oral argument held January 6, 2015, Defendants offered the testimony of Robert

Schmidt, a named Defendant and nephew of Defendant Rohman. Defendant Schmidt also




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                                                                        Circulated 10/06/2015 04:34 PM




holds Power of Attorney for Defendant Rohman, as indicated supra. This testimony was

uncontested by counsel for Appellant and entered into the record.

       Therefore, the Court avers a witness was presented in support of Defendants' Motion

and the witness' testimony was considered in making the March 2, 2015 ruling.



                                   IV.    CONCLUSION

       After thorough review of the record, no law was overridden or misapplied in this case.

This Court's judgment was neither manifestly unreasonable, nor the result of partiality,

prejudice, bias, or ill will. As this decision was a sound application of the law and supported

by the facts, circumstances, and evidence in the case, this Court respectfully requests the

Superior Court uphold its Order of March 2, 20_15.



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