Herb v. Snyder

SAYLOR, Judge,

dissenting.

Most respectfully, I dissent. It remains the unshifting burden of a plaintiff, having brought a defendant into court, to move the case to trial. See Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992) (plaintiff, not defendant, is responsible for moving case forward); Pennridge Electric, Inc. v. Souderton Area Joint School Authority, 419 Pa.Super. 201, 615 A.2d 95 (1992) (settled law that it is plaintiffs burden to move case to trial).

Here, the plaintiffs sought to avoid a non pros by pointing to the defendants’ inaction in failing to praecipe their preliminary objections onto the argument list. However, the plaintiffs themselves could, and in my view should, have listed the preliminary objections for argument so as to advance their cause. “If plaintiffs counsel finds herself faced with delays created by others, she must take action to move the case forward, such as filing praecipes for argument on undecided motions____” Pennridge, 419 Pa.Super. at 209, 615 A.2d at 99.

In Penn Piping, for example, where the plaintiff filed an amended complaint and then took no further action for six years, our Supreme Court affirmed the grant of a non pros upon the defendant’s motion, even though the defendant had never filed an answer to the complaint. As in the present case, the Penn Piping plaintiff argued that it was the defendant who should have been held responsible for the delay. The Supreme Court rejected such argument, describing as “erroneous [the plaintiff’s] assertion that [the defendant] was responsible for not moving the case forward----” Id., 529 Pa. at 357 n. 3, 603 A.2d at 1009 n. 3.