J. A12039/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM TRIMBLE,                        :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :
                                        :         No. 1320 EDA 2017
CHRISTOPHER RODRIGUEZ AND               :
BONNIE RODRIGUEZ                        :


               Appeal from the Order Entered April 20, 2017,
                in the Court of Common Pleas of Pike County
                     Civil Division at No. 856-2013-Civil


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 16, 2018

     William Trimble (“appellant”) appeals from the April 20, 2017 order

entered by the Court of Common Pleas of Pike County denying appellant’s

motion to strike pro forma dismissal and reopen matter. After careful review,

we reverse and remand for further proceedings consistent with this

memorandum.

     The trial court provided the following synopsis of the relevant facts:

           On December 30, 2016, the Pike County Court
           Administrator, issued a Notice identifying all pending
           matters which, pursuant to Pennsylvania Rule of Civil
           Procedure 230.2,[1] would be dismissed for inactivity
           unless a request for a hearing on the matter was
           timely made.


1 The notice issued by the Pike County court administrator was sent pursuant
to Pike County Local Rule 230.2.
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            Approximately thirty (30) days later, Defendants
            Christopher and Bonnie Rodriguez [(“appellees”)] filed
            a Motion to Compel Plaintiff’s Responses to
            Supplemental Interrogatories and Request for
            Production of Documents (“Motion to Compel”). This
            Court issued a Rule Returnable for Answer in
            twenty (20) days (“Rule Returnable”) on January 31,
            2017. Appellant filed an Answer to the Motion to
            Compel on February 22, 2017.

            On April 10, 2017, [appellees] filed a Petition for Oral
            Argument and on April 13, 2017, this Court issued an
            Order indicating that the matter had been closed since
            December 30, 2016, due to inactivity and vacating the
            Rule Returnable issued on January 31, 2017. On
            April 18, 2017, [a]ppellant filed a Motion to Strike
            Pro Forma Dismissal and Reopen Matter (“Motion to
            Strike”), claiming neither [a]ppellant nor [a]ppellant’s
            counsel received notice of dismissal for inactivity.

            On April 20, 2017, this Court issued an Order denying
            [a]ppellant’s Motion to Strike, citing Pennsylvania
            Rule of Civil Procedure 230.2. Appellant filed a Notice
            of Appeal on April 21, 2017, and was ordered to file
            and serve a Concise Statement of Matters Complained
            of on Appeal (“Concise Statement”) three (3) days
            later. Appellant filed a Concise Statement on May 15,
            2017, and [appellees] filed a Response to
            [appellant’s] Statement of Matters Complained of on
            Appeal on May 25, 2017.

Trial court opinion, 6/6/17 at 1-2. The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on June 6, 2017.

      Appellant raises the following issue for our review:

            Did the trial court abuse its discretion or commit
            errors of law in (a) refusing to conduct a hearing or
            other fact-finding to determine if notice of the
            proposed termination of the underlying action and
            notice of the actual order terminating the action were
            properly served in accordance with relevant rules,
            where there is no indication in the record that they


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             were; and (b) refusing to reinstate the action in light
             of the peculiar procedural facts of this case and where
             the plaintiff's request for reinstatement was made
             immediately upon discovering that the matter had
             been terminated?

Appellant’s brief at 4.

        Before addressing appellant’s issue on appeal on its merits, we must

first note that at the time the trial court dismissed appellant’s case on

December 30, 2016, Pennsylvania Rule of Civil Procedure 230.2 was

suspended pursuant to a per curiam order entered April 23, 2014 by our

supreme court.2      The order, however, indicated that trial courts may

administratively purge dormant civil matters pursuant to Pennsylvania Rule of

Judicial Administration 1901.      Accordingly, our standard of review is as

follows:

             The question of whether an action has been properly
             terminated pursuant to Pa.R.J.A. 1901, or its local rule
             counterpart, rests within the discretion of the trial
             court and will not be disturbed absent an abuse of that
             discretion or an error of law. Jacobs v. Halloran, [],
             710 A.2d 1098, 1101 (Pa. 1998) (whether non pros
             was properly granted for plaintiff’s failure to prosecute
             his action within a reasonable period of time rests
             within the discretion of the trial court); Shope v.
             Eagle, [], 710 A.2d 1104, 1105 (Pa. 1998) (applying
             the abuse of discretion standard set forth in Jacobs,
             supra, where complaint dismissed pursuant to
             Pa.R.J.A. 1901); Marino v. Hackman, [], 710 A.2d
             1108, 1110 n.4 (Pa. 1998) (same); Samaras v.
             Hartwick, 698 A.2d 71, 72 (Pa.Super. 1997).




2   Rule 230.2 was reinstated on December 31, 2016.


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Tucker v. Ellwood Quality Steels Co., 802 A.2d 663, 664-665 (Pa.Super.

2002), quoting Setty v. Knepp, 722 A.2d 1099, 1101 (Pa.Super. 1998).

     Pennsylvania Rule of Judicial Administration 1901, in relevant part,

requires a trial court to enter an appropriate order terminating a case,

sua sponte, after a case “has been inactive for an unreasonable period of

time.” Pa.R.J.A. 1901(a). Rule 1901 also provides the following minimum

requirements for terminating a case:

           (c)   Minimum Standards.           Before any order
                 terminating a matter 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, which notice shall be given:

                 (1)   In person or by mail to the last
                       address of record of the parties or
                       their counsel of record and setting
                       forth a brief identification of the
                       matter to be terminated; or

                 (2)   By publication in the manner
                       provided by rule of court in the legal
                       newspaper designated by rule of
                       court for the publication of legal
                       notices in any case where notice by
                       mail cannot be given or has been
                       returned undelivered or where the
                       docket of the matter shows no
                       evidence of activity during the
                       previous two years. Any matter
                       terminated      after   notice     by
                       publication    pursuant     to    this
                       paragraph may be reinstated by the
                       court after dismissal upon written
                       application for good cause shown.

Pa.R.J.A. 1901(c).


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      Finally, Rule 1901 directs each court of common pleas to implement

local rules of court pursuant to Rule 1901. Pa.R.J.A. 1901(b)(1). The Pike

County Local Rules of Court provide, in relevant part:

            Rule 230.2. Termination of Inactive Cases

            (a)   At the direction of the Court Administrator, the
                  Prothonotary shall create a list of all civil
                  matters in which no steps or proceedings have
                  been taken for two years or more prior thereto.

                  Upon creation of the list the Court Administrator
                  shall serve notice to counsel of record and to the
                  parties for whom no appearance has been
                  entered, as provided by Pa.R.C.P. 230.2(2).

            (b)   Parties receiving notice of the proposed
                  termination of their case, as described in
                  paragraph (a) may file a Statement of Intention
                  to Proceed. The Statement of Intention to
                  Proceed shall be filed with the Prothonotary
                  within sixty (60) days from the date the Notice
                  of Proposed Termination is filed. A copy of the
                  Statement of Intention to Proceed shall be
                  served upon the Court Administrator and the
                  opposing party, or counsel, if represented.

            (c)   If no Statement of Intention to Proceed is filed
                  within sixty (60) days of the Notice of Proposed
                  Termination, the Prothonotary shall enter an
                  order as of course, terminating the matter with
                  prejudice for failure to prosecute.

Pa.R. Pike Cty. Civ. Rule 230.2(a)-(c).

      We now turn to appellant’s contention that the trial court erred when it

refused to conduct an evidentiary hearing to determine if notice of the

proposed termination of the underlying action and notice of the order

dismissing this case were properly served in accordance with the relevant


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rules of civil procedure and judicial administration.    On appeal, appellant

makes the following argument:

            Although the Notice of Proposed Termination
            references the plaintiff’s counsel’s mailing address, it
            is submitted that correspondence between the court
            and local attorneys (including proposed termination
            notices, which issue at regular intervals) is almost
            always conducted via inter-office mailboxes in the
            Pike County Courthouse, and based on informal,
            off-record communication with Pike County’s Office of
            Court Administration, it is believed and therefore
            averred that if the trial court had held an evidentiary
            hearing on the plaintiff’s motion requesting
            reinstatement, the relevant member of Court
            Administration’s staff would have testified under oath
            that the common practice was to deliver proposed
            termination notices to local counsel via their
            inter-office boxes . . . .

Appellant’s brief at 10-11. In raising this argument, appellant cites to Kane

v. Vigunas, 967 A.2d 987 (Pa.Super. 2009), appeal denied, 981 A.2d 220

(Pa. 2009). In Kane, this court held that serving notice via an inter-office

mailbox was not sufficient notice pursuant to Pa.R.Civ.P. 230.2,3 thereby

reversing the trial court’s denial of Darryl Kane’s petition to reinstate action

that had been terminated due to inactivity. Kane, 967 A.2d at 994.

      In its Rule 1925(a) opinion, the trial court cited to case law referencing

the mailbox rule, and found that appellant is unable to overcome the mailbox

rule’s presumption of receipt.




3 While Pa.R.Civ.P. 230.2 was suspended when this case was terminated, both
Pa.R.J.A. 1901 and Pike County Local Rule 230.2 contained virtually identical
language.


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          The mailbox rule provides that “depositing in the post
          office a properly addressed prepaid letter raises a
          natural presumption, founded in common experience,
          that it reached its destination by due course of mail.”
          Jensen v. McCorkell, [], 26 A. 366, 367 (Pa. 1893)
          (citation omitted). As the Pennsylvania Supreme
          Court noted: “The overwhelming weight of statistics
          clearly indicates that letters properly mailed and
          deposited in the post office are received by the
          addressees. Meierdierck v. Miller, [], 147 A.2d 406,
          408 (Pa. 1959). Thus, “[e]vidence that a letter has
          been mailed will ordinarily be sufficient to permit a
          [fact finder] to find that the letter was in fact received
          by the party to whom it was addressed.” Shafer v.
          A. I. T. S., Inc., [], 428 A.2d 152, 156 (Pa.Super.
          1981) (citations omitted).

          However, “evidence of actual mailing is not required.”
          Commonwealth, Dep’t of Transp. v. Brayman
          Constr. Corp., [], 513 A.2d 562, 566 (Pa.Cmwlth.
          1986)[]. The Superior Court has held that “when a
          letter has been written and signed in the usual course
          of business and placed in the regular place of mailing,
          evidence of the custom of the establishment as to the
          mailing of such letters is receivable as evidence that
          it was duly mailed.” Christie v. Open Pantry Food
          Marts Inc. of Delaware Valley, [], 352 A.2d 165,
          166-167 (Pa.Super. 1975) (citation omitted). To
          trigger the presumption of receipt, “the party who is
          seeking the benefit of the presumption must adduce
          evidentiary proof that the letter was signed in the
          usual course of business and placed in the regular
          place of mailing.” Geise v. Nationwide Life &
          Annuity Co. of America, 939 A.2d 409, 423
          (Pa.Super. 2007) (emphasis added); Shafer, 428
          A.2d at 156. “A presumption that a letter was
          received cannot be based on a presumption that the
          letter was mailed. A presumption cannot be based on
          a presumption.” Geise, 939 A.2d at 423 (citations
          omitted).    Documentary evidence of mailing or
          testimony from the author that a document was
          mailed may establish the presumption of receipt. See
          [Commonwealth, Dep’t of Transp. v. Grasse, 606
          A.2d 544, 546 (Pa.Super. 1992)] (holding appellees


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             met burden of proof of mailing by producing certified
             driving record which included document showing
             notice was mailed; cf. Meierdierck, [], 147 A.2d at
             408 (holding that “[w]here the use of the mails as a
             means of acceptance is authorized or implied from the
             surrounding circumstances, the acceptance is
             complete by posting the letter in normal mail
             channels, without more.”).

Szymanski v. Dotey, 52 A.3d 289, 292-293 (Pa.Super. 2012) (emphasis in

original).

      In Szymanski, the Civil Court Administrator testified that she was the

author of a trial notice to be sent to David Szymanski, the appellant in the

case. Id. at 293. The Court Administrator did not testify “that she placed the

notice in her office’s usual place for outgoing mail, nor did she testify that she

or any other employee mailed it via any method of mailing.” Id. Moreover,

the trial court in Szymanski found that the record did not reflect any

documentary evidence indicating that the trial notice was mailed.              In

Commonwealth v. Thomas, 814 A.2d 754, 759 (Pa.Super. 2002), this court

found that testimony regarding the general practice of mailing hearing notices

was not sufficient to establish the mailbox rule’s presumption of receipt. The

record also did not reflect any documentary evidence that the notice was

mailed. Id. at 760.

      Here, the trial court specifically found that “[t]he record indicates that a

Notice of Proposed Termination of Court Case was sent to each attorney of

record in the above-captioned matter on September 30, 2016.” (Trial court

opinion, 6/6/17 at 5.) The trial court further concluded that “the Proposed


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Termination Notice contained in the record is sufficient to raise the rebuttable

presumption that it was properly mailed to each attorney of record on or about

September 30, 2016, and received.” (Id. at 6.) The trial court also “note[d]

that the Proposed Termination Notice contains the names and mailing

addresses of both attorneys of record, a clear indication that the Proposed

Termination Notice was mailed. (Id. at 7.)

      The record before us does not support the trial court’s findings. A notice

of proposed termination of court case dated September 30, 2016, is located

within the record; however, the document does not have a corresponding

entry in the docket. Moreover, the notice does not facially reflect that it was

mailed to appellant’s counsel, and no certificate of service is included. While

the trial court is correct in its observation that each attorney’s name and

mailing address is included on the termination notice, the inclusion of such

information does not automatically trigger a presumption that the notice was

mailed. Indeed, appellant’s counsel’s name and mailing address appeared on

the notice in the following context:

            NOTICE OF PROPOSED TERMINATION OF COURT
            CASE

            To Movant or Counsel if represented:

            Thomas E. Mincer, Esquire
            106 W High Street
            Milford, PA 18337

            Copy of this Notice was sent to the Opposing
            Party or Counsel if represented:



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            Benjamin A. Nicolosi, Esquire
            PO Box 3118
            Scranton, PA 18505

            Re: William Trimble v. . . .

Notice of proposed termination of court case, 9/30/16 (bold type in original).

Taken in this context, it is impossible to determine whether this notice was

mailed, personally handed to Mr. Mincer, or placed in an inter-office mailbox

as Mr. Mincer avers. (See appellant’s brief at 10-11.) Further, unlike with

other orders of court throughout the case, there is no entry on the docket

reflecting that a copy of the notice had been mailed to the parties.

      Accordingly, we find that the trial court abused its discretion when it

declined to conduct a hearing or other fact-finding to determine if the notice

of proposed termination was properly served. We therefore reverse the trial

court’s April 20, 2017 order denying appellant’s motion to strike, and remand

for the trial court to conduct an evidentiary hearing as to whether the notice

of proposed termination was properly served.

      Order reversed. Case remanded. Jurisdiction relinquished.



      Ott, J. joins this Memorandum.

      Bowes, J. files a Concurring and Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/16/18




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