USA Federal v. Garges, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
USA FEDERAL CREDIT UNION IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KATHERINE S. GARGES
Appellant No. 3422 EDA 2015
Appeal from the Order Entered October 9, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2005-02231
BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 14, 2016
Katherine S. Garges appeals, pro se, from the October 9, 2015 order of
the Court of Common Pleas of Montgomery County denying with prejudice her
petition to reinstate this action following termination for inactivity. Because we
conclude that Garges failed to establish good cause for reinstatement, we
affirm.
In February 2005, USA Federal Credit Union (“USA”) filed a breach of
contract action against Garges, seeking repayment of $11,156.14 in unpaid
loans. In response, Garges filed an answer with new matter and a
counterclaim, alleging that USA had engaged in unfair and deceptive debt-
collection practices. Following substantial discovery, both parties filed motions
for summary judgment: Garges on USA’s complaint and her counterclaim, and
USA on Garges’s counterclaim. The trial court denied Garges’s summary
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judgment motion on July 30, 2008 and granted USA’s summary judgment
motion on August 18, 2008. As a result, the only remaining claims as of
August 18, 2008 were USA’s claims against Garges. One year later, on August
29, 2009, Garges filed a motion to compel answers to interrogatories and
production of documents, which the trial court denied on October 15, 2009.
On October 20, 2014, after five years of docket inactivity, the trial court
issued a notice of proposed termination (“Termination Notice”) to the parties
pursuant to Montgomery County Local Rule of Judicial Administration 1901
(“Montgomery County Rule 1901”),1 which provides in relevant part:
(b) The Court may initiate proceedings to terminate a case in
which there has been no activity of record for two years or
more by serving a notice of proposed dismissal of court case.
(c) The Court shall serve the notice on counsel of record,
and on the parties if not represented, sixty days prior to the
date of the proposed termination. The notice shall contain
the date of the proposed termination and the procedure to
avoid termination. . . .
...
(f) If no statement of intention to proceed has been filed in
the required time period, the Prothonotary shall enter an
order as of course terminating the matter with prejudice for
failure to prosecute.
(g) If an action has been terminated pursuant to this rule,
an aggrieved party may petition the court to reinstate the
action. All matters so terminated may not be reinstated
except with leave of Court, for cause shown.
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1
Montgomery County Rule 1901 is based on Pennsylvania Rule of
Judicial Administration 1901 (“Pennsylvania Rule 1901”).
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Mont. Co. L.R.J.A. 1901. The Termination Notice advised the parties that the
trial court would terminate the case without further notice unless either party
filed a statement of intention to proceed by December 20, 2014. Neither USA
nor Garges filed a statement of intention to proceed. Therefore, on January 5,
2015, the trial court terminated the case.
On January 20, 2015, Garges filed a petition to reinstate the case
pursuant to Montgomery County Rule 1901(g). After a hearing, the trial court
denied Garges’s petition, finding that Garges had waived her right to challenge
the termination by failing to respond to the Termination Notice. Garges timely
appealed to this Court.2
On appeal, Garges asserts that Montgomery County Rule 1901 does not
meet the requirements of Pennsylvania Rule 1901(c), which states, under the
heading “Minimum standards,” that “[b]efore any order terminating a matter
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2
USA asserts that this Court lacks jurisdiction because Garges failed to
timely appeal from the January 5, 2015 order terminating the case. Based on
our review of the trial court docket and the certified record, it appears that the
trial court never entered a formal termination order. Instead, the docket
includes an entry, dated January 5, 2015, stating that the case was
“[t]erminated.” See Trial Ct. Dkt. Entry No. 87. It is undisputed that both
parties received notice of the January 5, 2015 docket entry terminating the
case.
In any event, in terms of this Court’s jurisdiction, an order denying a
petition to reinstate is itself an appealable order. See generally Setty v.
Knepp, 722 A.2d 1099 (Pa.Super. 1998); Martin v. Grandview Hosp., 541
A.2d 361 (Pa.Super. 1988). Here, Garges timely filed her notice of appeal
from the October 9, 2015 order on November 4, 2015. Therefore, we have
jurisdiction over this appeal.
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on the ground of unreasonable inactivity is entered, the parties shall be
given at least 30 days’ written notice of opportunity for hearing on
such proposed termination” in person, by mail, or by publication in a legal
newspaper. Pa. R.J.A. 1901(c) (emphasis added). Garges claims that because
Montgomery County Rule 1901 does not require a pre-termination hearing, it
does not satisfy the requirements of Pennsylvania Rule 1901. We disagree.3
Pennsylvania Rule 1901 provides that each court of common pleas may
develop its own local rule to dispose of cases that have been inactive for more
than two years. Pa. R.J.A. 1901(b)(1). Although Pennsylvania Rule 1901(c)
states that the parties should receive “30 days’ written notice of opportunity
for hearing” (emphasis added), our Court has interpreted this provision to
mean that the parties must be given an opportunity to respond to the notice
before termination, either orally or in writing. See, e.g., Samaras v.
Hartwick, 698 A.2d 71, 72-73 (Pa.Super. 1997) (noting that local rule’s notice
procedure, requiring filing of “a certification of active status within 30 days” of
pre-termination notice, satisfied Pennsylvania Rule 1901’s “minimal procedural
protections”); Clinger, 620 A.2d at 531 (stating that Pennsylvania Rule
1901(c) requires trial court to provide parties with written notice in person, by
mail, or by publication before terminating case); Taylor v. Oxford Land, Inc.,
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3
Our review of an order denying a petition to reinstate is limited to
determining whether the trial court abused its discretion or committed an error
of law. Clinger v. Tilley, 620 A.2d 529, 531 (Pa.Super. 1993).
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488 A.2d 59, 62-63 (Pa.Super. 1985) (holding that “the clear language of
[Pennsylvania] Rule 1901 requires pre-termination notice” to parties).
Montgomery County Rule 1901 requires the trial court to give the parties
written notice of its intent to terminate and permits the parties to respond to
the notice by filing a statement of intention to proceed within 60 days. When a
party files a timely statement of intention to proceed, the case will not be
terminated. Because Montgomery County Rule 1901 allows the parties to
respond to the pre-termination notice and thereby prevent termination, we
conclude that it satisfies the requirements of Pennsylvania Rule 1901.4
Next, Garges asserts that the trial court abused its discretion in denying
her petition to reinstate because she established good cause for reinstatement.
We disagree.
In denying Garges’s petition, the trial court relied on the waiver principle
adopted in Tucker v. Ellwood Quality Steels Company, 802 A.2d 663(Pa.Super. 2002). In Tucker, after more than two years of docket inactivity,
the trial court issued a rule to show cause why the case should not be
terminated, directing the parties to respond to the rule at “the general calling
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4
Moreover, the notice/response procedure outlined in Montgomery
County Rule 1901 complies with newly amended Pennsylvania Rule of Civil
Procedure 230.2, which also requires the filing of a statement of intention to
proceed to avoid termination of an inactive case. See Pa. R.C.P. 230.2(b), (f)
(eff. Dec. 31, 2016). However, Rule 230.2 was suspended between April 23,
2014, and December 9, 2015, and, thus, was not in effect when the trial court
terminated this case or denied Garges’s petition to reinstate.
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of all inactive cases on October 26, 2001.” Id. at 664. Because neither party
appeared on that date, the trial court entered an order terminating the case
with prejudice. Id. On appeal, this Court held that the appellant waived his
right to challenge the termination by failing to respond to the rule to show
cause. Id. at 666. We explained that “it would be inequitable for Appellant to
be able to maintain his cause of action against Appellee. Through his failure to
attend the hearing on whether his case should be terminated for inactivity,
Appellant has demonstrated a manifested indifference towards the continuation
of his cause of action.” Id. (citing Shope v. Eagle, 710 A.2d 1104, 1107 n.13
(Pa. 1998)).5
Although neither Tucker nor Shope involved a petition to reinstate, the
trial court applied the same waiver principle in this case, finding that Garges
waived her right to challenge the termination by failing to respond to the
Termination Notice. Had this appeal stemmed from a termination order, the
trial court’s rationale would have been proper. Garges, however, did not
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5
In Shope, our Supreme Court considered whether the appellants’
failure to respond to a notice of termination for inactivity resulted in waiver of
their right to challenge the termination on appeal, stating:
We note that Appellants preserved their right to challenge the
dismissal of the action by responding to the court order directing
them to appear for a hearing on whether the case should be
terminated for inactivity. Had they not done so, their right to
challenge the dismissal would have been waived . . . .
710 A.2d at 1107 n.13 (emphasis added).
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appeal from a termination order. Garges appealed from the October 9, 2015
order denying her reinstatement petition, which she had the right to file under
Montgomery County Rule 1901(g), notwithstanding her failure to respond to
the Termination Notice.
A party seeking reinstatement of a terminated case must establish good
cause to reactivate the case. Setty, 722 A.2d at 1101; see Mont. Co. L.R.J.A.
1901(g) (stating that reinstatement may be granted only “with leave of Court,
for cause shown”). To establish good cause, “‘[t]he aggrieved party must
demonstrate that: (1) the petition for reactivation was timely filed; (2) a
reasonable explanation exists for the docket inactivity; and (3) facts exist
supporting a meritorious cause of action.’” Setty, 722 A.2d at 1101 (citation
omitted); see Samaras, 698 A.2d at 73.6 Notably, the good-cause test does
not consider whether the party seeking reinstatement timely responded to a
pre-termination notice. For this reason, the trial court’s reliance on Tucker
and Shope was misplaced.7
At the hearing on her reinstatement petition, Garges’s only explanation
for the lengthy period of docket inactivity was that she was “impoverished
during [that] entire time, due in significant part to [USA’s] actions.” N.T.,
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6
Garges’s reinstatement petition, filed 15 days after the termination,
was timely.
7
We are not bound by the trial court’s rationale and may affirm on any
basis. In re Jacobs, 15 A.3d 509, 509 n.1 (Pa.Super. 2001).
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10/7/15, at 9; see id. at 11. She further stated that any delay “was entirely
due to [USA’s] deliberate attempts to frustrate [her] right of appeal” and that
she “was not required during that period of time to do anything.” Id. at 8. In
response, the trial court explained that Garges could have taken affirmative
steps to continue the litigation:
[Y]ou’re ignoring the fact that there are available, to both
parties, ways to move a case along. There are innumerable
mechanisms where either party can move a case along.
In other words, if a plaintiff is dilatory, you can file a motion
to compel them to take some action; you can ask, under our
rules, for a 212 conference with the court, saying . . . order
this case to trial. . . . You have the ability to do things
yourself, or to file a motion to dismiss the case for lack of
prosecution . . . .
Id. at 8-9; see id. at 13. However, the trial court docket shows that Garges
filed nothing in the five years preceding termination. In fact, Garges admitted
that USA “is the one who took the risk of not proceeding with [its] case that
entire time” and that “the delay has worked in [her] favor.” Id. at 9-10.8
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8
“The law is well settled that it is [the] plaintiff, not [the] defendant,
who bears the risk of failing to act within a reasonable time to move a case
along.” Pilon v. Bally Eng’g Structures, 645 A.2d 282, 285 (Pa.Super.
1994). Given that USA deliberately abandoned its cause of action against
Garges, which sought more than $11,000 in damages, it is somewhat difficult
to understand why Garges would want to reactivate USA’s claim. It appears
that she wants the case re-opened in order to challenge the dismissal of her
counterclaim.
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Based on the evidence of record, we conclude that Garges failed to offer
a reasonable explanation for the docket inactivity. As the trial court aptly
observed:
Had [Garges] pursued dismissal of [USA’s] action through
non pros, her assertion that the Counterclaim was wrongly
dismissed would have been ripe for review. Instead, she
opted to delay more than five years until the Prothonotary
was compelled to commence termination proceedings, and
then seek discretionary leave of Court to pursue a claim
long-since abandoned.
Trial Ct. Op. at 5-6. Accordingly, because Garges failed to establish good
cause for reinstatement, we affirm the denial of her petition to reinstate.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2016
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9
In light of this disposition, we need not reach Garges’s remaining claims
relating to the trial court’s rulings in the pre-termination litigation.
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