J-A11027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MARTINEZ CONTRACTOR SERVICES                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellant

                        v.

 MOON SITE MANAGEMENT, INC. AND
 ETNA CORPORATION, INC.

                                                        No. 932 MDA 2016


                   Appeal from the Order Entered May 12, 2016
                  In the Court of Common Pleas of Berks County
                         Civil Division at No(s): 13-15951


BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 09, 2017

       Martinez Contractor Services (“Martinez Contractor”) appeals from the

May 12, 2016 order entered in the Berks County Court of Common Pleas

denying Martinez Contractor’s petition to set aside the dismissal of its case.

We vacate the order and remand for further proceedings.

       This case arises from a contract between Martinez Contractor and Moon

Site Management, Inc. (“Moon Site”) for snow removal services. On June 28,

2013, Martinez Contractor filed a complaint alleging breach of contract against

Moon Site, Moon Nurseries, Inc. (“Moon Nurseries”), and Etna Corporation,


____________________________________________


       *   Former Justice specially assigned to the Superior Court.
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Inc. (“Etna”).1     On July 22, 2013, Moon Site and Moon Nurseries filed

preliminary objections. On August 12, 2013, counsel for Martinez Contractor

entered his appearance and, on the same day, responded to the preliminary

objections. On August 20, 2013, the trial court entered a partially handwritten

order overruling the preliminary objections as to Moon Site and sustaining the

preliminary objections as to Moon Nurseries. The order stated that Martinez

Contractor “may file an amended complaint within twenty (20) days.”

Amended Order, 8/30/13.           On August 30, 2013, the trial court issued an

amended order for clarification, containing the same language as the previous

order. On September 23, 2013, Moon Site filed its answer. From November

2013 to February 2014, there were several withdrawal and substitutions of

counsel on behalf of Moon Site.

       On February 2, 2016, the prothonotary issued a notice of proposed

termination of the case.         The notice stated that “[t]he 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.” Notice of

Proposed Termination of Court Case, 2/2/16 (“Termination Notice”).            On

February 17, 2016, Martinez Contractor filed a statement of intent to proceed.

On March 4, 2016, the trial court scheduled a status conference for April 7,

2016, which it continued to May 11, 2016. Counsel for Martinez Contractor
____________________________________________


       1 A review of the certified record indicates that Etna has not participated
in this litigation.

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failed to appear at the status conference on May 11, 2016, and the trial court

dismissed the case with prejudice.

       On May 20, 2016, Martinez Contractor filed a petition to set aside the

dismissal. On May 31, 2016, the trial court issued an order for Moon Site and

Etna to show cause within 25 days why Martinez Contractor was not entitled

to the relief requested. On June 8, 2016, Martinez Contractor filed a timely

notice of appeal.2 The trial court later scheduled argument on the petition to

set aside the dismissal for July 14, 2016. Following the hearing, the trial court

“denied [Martinez Contractor] the relief requested.”3 Opinion, 8/26/16, at 3.

       Martinez raises the following issues on appeal:

           1. Is [Martinez Contractor] entitled to reinstatement of his
              case because the trial court did not consider [Martinez
              Contractor]’s inadvertent failure to attend the status
              conference and the three prong test to set aside the
              dismissal, but decided based only on the issue of lack of
              activity on the docket?

           2. Did the trial court err in dismissing [Martinez
              Contractor]’s case without balancing the equitable
              considerations, in particular, failing to find prejudice to
              [Moon Site], from [Martinez Contractor]’s delay[?] The
              trial court also mentioned [Martinez Contractor]’s failure
              to file an amended complaint which [Martinez
              Contractor] submits was not supported by the record.

____________________________________________


       2On June 21, 2016, Moon Site filed a letter in lieu of a formal response
to Martinez Contractor’s petition due to Martinez Contractor having filed a
notice of appeal.

       3The present appeal was properly taken from the May 12, 2016 order
dismissing the case with prejudice. Given our conclusion that the trial court
erred in dismissing the case on May 12, we need not address the court’s later
denial of the petition to set aside that dismissal.

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           3. Did the trial court violate a rule of procedure when it did
              not grant reconsideration within thirty (30) days of the
              dismissal as required by [Pa.R.A.P.] 1701, if the time to
              file an appeal is to run from the order on reconsideration,
              but then held a hearing and asked Moon Site to supply
              the missing element of prejudice[?]

           4. If the Concise Statement of Errors is not received by the
              prothonotary within twenty-one (21) days set forth in the
              trial court’s order, the appellate court may raise the issue
              and deem the matters raised on appeal waived.

Martinez Contractor’s Br. at 5-7 (internal citations and arguments omitted).

       We review “whether an action has been properly terminated pursuant

to Pennsylvania Rule of Judicial Administration 1901 [(“Pa.R.J.A. 1901”)], or

its local rule counterpart,” for an abuse of discretion and will not disturb a trial

court’s decision “absent an abuse of that discretion or an error of law.”

Tucker v. Ellwood Quality Steels Co., 802 A.2d 663, 664 (Pa.Super. 2002)

(quoting Setty v. Knepp, 722 A.2d 1099 (Pa.Super. 1998)).4

       Pa.R.J.A. 1901(a) states that “[i]t is the policy of the unified judicial

system to bring each pending matter to a final conclusion as promptly as

possible consistently with the character of the matter and the resources of the

system.”     Pa.R.J.A. 1901(a).       “Where a matter has been inactive for an

unreasonable period of time, the tribunal, on its own motion, shall enter an
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       4
       We note that while Pennsylvania Rule of Civil Procedure 230.2 provides
a procedural mechanism for the termination of inactive cases, the
Pennsylvania Supreme Court suspended this rule from April 2014 to December
2016. Thus, this rule was suspended during the time Martinez Contractor’s
case was dismissed due to inactivity. See Pa.R.C.P. 230.2 exp. cmt. Pa.R.J.A.
1901(a), however, remained in effect during that period.




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appropriate order terminating the matter.”5 Id. Rule 1901(b)(1) 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.6 Pa.R.J.A. 1901(b)(1).

Although Pa.R.J.A. 1901(c) states that the parties should receive “30 days’

written notice of opportunity for hearing,” this Court has interpreted this

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

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       5 A dismissal of a case due to inactivity pursuant to Pa.R.J.A. 1901 is
distinct from a judgment of non pros. In Shope v. Eagle, our Supreme Court
explained:

           Although terminations pursuant to Rule 1901 and motions
           for non pros both result in the dismissal of a case for
           inactivity, each action has a distinct procedure.

              Rule 1901 is essentially an administrative tool by which
           the court, through the prothonotary, may rid the court
           dockets of stale matters that have not been discontinued by
           the parties. The local rules implemented thereunder are
           “intended to foster elimination of stale cases from the
           judicial system where the parties have failed to proceed and
           which are carried as open matters because of the failure on
           the part of any party to seek dismissal or otherwise to bring
           the matter to a conclusion.” Pa.R.J.A. 1901 Note.

               A motion for a judgment of non pros is the vehicle by
           which a litigant asserts his or her common law right to a
           reasonably prompt conclusion to a case. In the companion
           case of Jacobs v. Halloran[, 710 A.2d 1098 (Pa. 1998)],
           also decided today, we noted that the grant of a judgment
           of non pros is based upon the equitable principle of laches,
           which requires that the adversary suffer harm before a case
           is dismissed for inactivity.

710 A.2d 1104, 1106 (Pa. 1998) (internal footnotes omitted).

       6We note that Berks County has not enacted a local rule pursuant to
Pa.R.J.A. 1901.

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J-A11027-17



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 Pa.R.J.A. 1901’s “minimal

procedural protections”).

      Martinez Contractor contends that the trial court erred in dismissing its

case because it filed a statement of intent to proceed in a timely manner as

required by the Termination Notice.

      The Termination Notice stated:

             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:

           Berks County Prothonotary, 2nd Floor Courthouse, 633
         Court Street, Reading, PA 19601 on or before 4/02/16

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

Termination Notice (full capitalization in original; other emphasis added).

      On February 17, 2016, Martinez Contractor filed with the Prothonotary

its statement of intent to proceed. On March 3, 2016, the trial court stated

that because a statement of intent to proceed had been filed, it was scheduling

a status conference for April 7, 2016, which it later continued to May 11, 2016.




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J-A11027-17



Counsel for Martinez Contractor failed to appear,7 and the trial court dismissed

the case with prejudice. In its May 11, 2016 order, filed on May 12, 2016, the

trial court set forth its reasons for dismissing the case, which centered on

Martinez Contractor’s failure to actively pursue the litigation.8 Further, in its

Rule 1925(a) opinion, the trial court explained that “it did not sanction

[Martinez Contractor]’s attorney for the missed conference; it sanctioned

[Martinez Contractor] for its overall lack of prosecution since 2013, its lack of

compelling reasons for the delay, and the prejudice to [Moon Site].” Opinion,




____________________________________________


       Counsel explained that he failed to appear at the status conference
       7

due to an inadvertent failure to add the new date on his calendar. Martinez
Contractor’s Br. at 23.

       8   The order dismissing the case stated:

                AND NOW, this 11th day of May, 2016, it appearing that
            [Martinez Contractor] filed an action in 2013 by filing a civil
            complaint, and it further appearing that preliminary
            objections were filed and sustained by this Court and
            [Martinez Contractor] was given the opportunity to file an
            amended complaint, and it further appearing that no
            complaint is of record, and it further appearing that no
            action has been taken in two years, and it further appearing
            that notice has been provided by the Prothonotary of the
            termination of this case and that this Court, on April 7th,
            scheduled this matter for a status this date and that no one
            has appeared on behalf of [Martinez Contractor], it is hereby
            ordered that the motion to dismiss is sustained. The matter
            is discontinued, ended and completed with prejudice.

Trial Ct. Order, 5/12/16.




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8/26/16, at 7.9

       The trial court’s Termination Notice required only that Martinez

Contractor file a statement of intent to proceed by April 2, 2016 to prevent

termination of the case.          Within 15 days, Martinez Contractor filed its

statement of intent to proceed, thus satisfying the only requirement in the

notice. The status conference scheduled for May 11, 2016 was not a hearing

to determine whether Martinez Contractor should be allowed to proceed.

____________________________________________


       9In its May 12, 2016 order, the trial court also stated that: it had
sustained Moon Site’s preliminary objections; had given Martinez Contractor
an opportunity to file an amended complaint, which it did not file; and no
complaint appeared in the record. We find it necessary to address the
inaccuracies in these statements.

     The amended order sustaining in part and overruling in part Moon Site
and Moon Nurseries’ preliminary objections stated:

           1. Defendants’ preliminary objection as to Moon Nurseries
              is sustained. Plaintiff may file an amended complaint
              within twenty (20) days of receipt of this Order.

           2. The preliminary objections as to Moon Site Management,
              Inc. are overruled.

Amended Order, 8/30/13. The order stated that Martinez Contractor “may”
file an amended complaint, which it would need to do if it wished to proceed
against Moon Nurseries. As to Moon Site, the order stated that the preliminary
objections were overruled, meaning that Martinez Contractor had no
obligation to file an amended complaint. Indeed, in the paragraph addressing
Moon Site, the order makes no mention of an amended complaint.

      Further, while the May 12, 2016 order stated there was no complaint of
record, our review of the certified record shows that Martinez Contractor filed
a complaint on June 28, 2013.




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       Accordingly, we conclude that the trial court abused its discretion in

terminating the case due to inactivity.10

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




____________________________________________


       10We note that Pennsylvania Rule of Civil Procedure 230.2 was
reinstated effective December 31, 2016, and so would govern any subsequent
termination of this case for inactivity.

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