J-S62038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH L. MICHILINE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
VINCENT G. DOUGHERTY,
INDIVIDUALLY, VINCE G. DOUGHERTY,
A/K/A VINCENT G. DOUGHERTY,
CHARLES P. LEACH, AND J. RICHARD
GEORGE, ALL INDIVIDUALLY AND
T/D/B/A NEW BETHLEHEM PLAZA II,
AND CNB COMMUNITY BANK
Appellees No. 789 WDA 2015
Appeal from the Order April 13, 2015
In the Court of Common Pleas of Clarion County
Civil Division at No(s): 801 CD 2004
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 26, 2015
Appellant, Joseph L. Michiline, appeals from the order entered in the
Clarion County Court of Common Pleas, which dismissed with prejudice, due
to docket inactivity, Appellant’s civil action against Appellees, Vincent G.
Dougherty, individually, Vince G. Dougherty, a/k/a Vincent G. Dougherty,
Charles P. Leach, and J. Richard George, all individually and t/d/b/a New
Bethlehem Plaza II (collectively, “Dougherty Appellees”), and CNB
Community Bank (“Appellee Bank”). We affirm.
The relevant facts and procedural history of this case are as follows.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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On February 1, 2005, Appellant filed a complaint against the Dougherty
Appellees and Appellee Bank.1 Appellant alleged a fire occurred on or about
April 29, 2002 on Appellees’ property, which is nearby or adjoining
Appellant’s property. Appellant maintained that Appellees demolished the
building on their property after the fire and the demolition changed the
contours of the ground, which ultimately caused ground water to leak into
the basement of Appellant’s property, beginning around March 2003.
Appellant claimed the leakage caused structural damage to his property. On
April 20, 2005, Appellant filed an amended complaint. Appellant filed a
second amended complaint on February 21, 2006, and a third amended
complaint on March 22, 2006. Appellee Bank filed an answer and new
matter on April 26, 2006; the Dougherty Appellees filed an answer and new
matter on May 11, 2006.2 Appellant filed replies on June 23, 2006.
Between June 2006 and December 2010, Appellant took no action to
prosecute his case.3 Consequently, the court issued notice proposing to
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1
Appellant initially commenced this action by writ of summons filed on June
28, 2004.
2
On May 19, 2006, Appellee Bank filed a complaint joining an additional
defendant, Hilliard’s, Inc. Nothing in the record indicates that Appellee Bank
actually served Hilliard’s, Inc. with the joinder complaint, and Hilliard’s, Inc.
has not filed a responsive pleading. Therefore, Hilliard’s Inc. is a non-party.
3
The only docket activity during this timeframe was a praecipe for
withdrawal of appearance and a praecipe for entry of appearance by counsel
for Appellee Bank on February 12, 2008.
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terminate the case for inactivity. On December 28, 2010, Appellant filed a
statement of intent to proceed with his case, and the case remained active
on the court’s docket. No additional docket activity took place until
November 5, 2013, when Appellee Bank filed a motion for judgment on the
pleadings. Appellant responded to the motion on December 4, 2013. The
court denied Appellee Bank’s motion on February 12, 2014.
On December 10, 2014, the court issued an order again proposing
termination of Appellant’s case due to inactivity. The court’s order gave
Appellant until February 23, 2015, to file a response. On February 23, 2015,
Appellant objected to termination of the case. The Dougherty Appellees
responded to Appellant’s objections on April 2, 2015, and Appellee Bank
responded on April 6, 2015. The court held a hearing on April 7, 2015, at
which time Appellees presented argument on prejudice they suffered as a
result of Appellant’s delay in prosecuting the case. By order dated April 7,
2015, and entered on the docket on April 13, 2015, the court dismissed
Appellant’s case with prejudice. Appellant timely filed a motion for
reconsideration on April 23, 2015, which the court denied the following day.
Appellant timely filed a notice of appeal on May 13, 2015. On May 14, 2015,
the court ordered Appellant to file a concise statement of errors complained
of on appeal per Pa.R.A.P. 1925(b), which Appellant timely filed on June 3,
2015.
Appellant raises two issues for our review:
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DID THE TRIAL COURT ERR IN DISMISSING THE CASE AS
TO ALL [APPELLEES]?
DID THE TRIAL COURT ERR IN DISMISSING THE CASE AS
TO [APPELLEE BANK]?
(Appellant’s Brief at 4).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues Appellees did not give him sufficient notice of their claims of actual
prejudice. Appellant asserts he needed more time before the hearing to
investigate Appellees’ claims of prejudice. Appellant contends the court
dismissed his case before Appellant had an opportunity to investigate
Appellees’ allegations of prejudice, which deprived him of due process.
Alternatively, Appellant maintains that even if the court properly dismissed
the case against the Dougherty Appellees based on their allegations of
prejudice, the court’s dismissal of the case against Appellee Bank was
inappropriate because Appellee Bank’s allegations of prejudice were less
precise than those advanced by the Dougherty Appellees. Appellant
concludes the court failed to give him sufficient time to investigate
Appellees’ claims of prejudice, and this Court should remand for another
hearing after Appellant has reasonable time to investigate Appellees’ claims.
We cannot agree.
Preliminarily, appellate briefs must conform in all material respects to
the briefing requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing
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specific requirements of each subsection of brief on appeal). Regarding the
argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided
into as many parts as there are questions to be argued;
and shall have at the head of each part—in distinctive type
or in type distinctively displayed—the particular point
treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). Importantly, where an appellant fails to raise or develop
his issues on appeal properly, or where his brief is wholly inadequate to
present specific issues for review, this Court will not consider the merits of
the claims raised on appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super.
2000) (holding appellant waived claim where she failed to set forth adequate
argument concerning her claim on appeal; argument lacked meaningful
substance and consisted of mere conclusory statements; appellant failed to
explain cogently or even tenuously assert how trial court abused its
discretion or made error of law). See also Lackner v. Glosser, 892 A.2d
21 (Pa.Super 2006) (explaining arguments must adhere to rules of appellate
procedure and arguments which are not appropriately developed are waived
on appeal; arguments not appropriately developed include those where
party has failed to cite any authority in support of contention); Estate of
Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must
support each question raised by discussion and analysis of pertinent
authority; absent reasoned discussion of law in appellate brief, this Court’s
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ability to provide review is hampered, necessitating waiver of issue on
appeal).
Instantly, Appellant’s entire argument section consists of only two
short paragraphs. Significantly, Appellant fails to discuss any relevant legal
authority to support his claims on appeal.4 See Pa.R.A.P. 2119(a).
Appellant’s failure to develop his claims with discussion and analysis of
pertinent legal authority precludes meaningful review and waives his issues
on appeal.5 See Lackner, supra; Haiko, supra; Butler, supra.
Moreover, in reviewing a trial court’s termination of an action due to
docket inactivity, we will not disturb the court’s determination absent an
abuse of discretion or error of law. Tucker v. Ellwood Quality Steels Co.,
802 A.2d 663, 664 (Pa.Super. 2002). Pennsylvania Rule of Judicial
Administration 1901 provides, in pertinent part:
Rule 1901. Prompt Disposition of Matters;
Termination of Inactive Cases
(a) General policy. It is the policy of the unified
judicial system to bring each pending matter to a final
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4
The only citation to legal authority in Appellant’s argument section is to
Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998). Appellant claims this
case provides the “proper standard” in this matter, but he fails to explain
what that standard is or discuss Shope in any meaningful way.
5
Additionally, Appellant failed to preserve in his Rule 1925(b) statement his
claim that the court gave him insufficient time to investigate Appellees’
allegations of prejudice; thus, his challenge is waived for this reason as well.
See HSBC Bank, NA v. Donaghy, 101 A.3d 129 (Pa.Super. 2014) (stating
issues not raised in concise statement will be deemed waived on appeal).
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conclusion as promptly as possible consistently with the
character of the matter and the resources of the system.
Where a matter has been inactive for an unreasonable
period of time, the tribunal, on its own motion, shall enter
an appropriate order terminating the matter.
* * *
(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….
Pa.R.J.A. 1901(a), (c). “To dismiss a case for inactivity there must first be a
lack of due diligence on the part of the plaintiff in failing to proceed with
reasonable promptitude. Second, the plaintiff must have no compelling
reason for the delay. Finally, the delay must cause actual prejudice to the
defendant.” Shope, supra at 367, 710 A.2d at 1107-08. “[I]t is plaintiff,
not defendant, who bears the risk of failing to act within a reasonable time
to move a case along.” Id. at 368, 710 A.2d at 1108.
Instantly, in dismissing Appellant’s case due to inactivity, the trial
court reasoned:
On December 10, 2014, this court notified all the parties
that due to an unreasonable period of docket inactivity, the
case would be dismissed pursuant to Rule of Judicial
Administration 1901(a) unless [Appellant] objected.
[Appellant] did file an Objection to Dismissal, to which
[Appellees] replied, and a hearing was held on April 7,
2015. At that hearing, it was established that the incident
giving rise to the suit, a fire consuming a building giving
rise to allegedly negligent demolition of the structure, had
occurred in 2002, with [Appellant] filing suit in 2004. After
an initial flurry of activity including various preliminary
objections and amended complaints, the matter sat,
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stagnant, from 2006 to the present. In that time, the only
activities were attempts by [Appellees] to compel
discovery from [Appellant], or to terminate the action by
seeking judgment on the pleadings. The only explanation
[Appellant] offered for this delay was a scheduling conflict
that prevented a deposition in [the] summer of 2014.
[Appellees], for their part, established that the delay in the
case had caused them to be unable to locate important
fact witnesses, one of whom had since died, and that
certain probative documents were no longer available.
To dismiss a case for inactivity there must be a lack of due
diligence on the part of the plaintiff in failing to proceed
with reasonable promptitude, the plaintiff must have no
compelling reason for the delay, and the delay must cause
actual prejudice to the defendant. [Id. at 367, 710 A.2d
at 1107-08]. In the present case, [Appellant] presented
no satisfactory explanation for [his] failure to file any
motions, perform any substantial discovery, or list the case
for trial in almost nine years. In contrast, [Appellees]
presented substantial evidence of prejudice to themselves
in the form of unavailable witnesses and evidence.
Accordingly, the court found all of the criterion for
dismissal were met, and terminated the case with
prejudice.
(Trial Court Opinion, filed June 17, 2015, at 1-2). Under these
circumstances, we see no reason to disrupt the trial court’s dismissal of the
case. See Tucker, supra. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2015
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