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Rizzo et ux. v. Pittsburgh Railways Co.

Superior Court of Pennsylvania
Apr 3, 1974
323 A.2d 174 (Pa. Super. Ct. 1974)

Summary

In Rizzo v. Pittsburgh Railways Co., 226 Pa. Super. 566, 323 A.2d 174 (1974), we were faced with an analogous situation.

Summary of this case from Kennedy v. the Bulletin Co., et al

Opinion

November 15, 1973.

April 3, 1974.

Practice — Judgment of non pros. — Discretion of court — Delay in prosecuting suit longer than statute of limitations for commencement of suit — Delay resulting in prejudice to defendant.

1. In this case where plaintiffs did not have their case scheduled for arbitration for almost eleven years after the cause of action arose, and almost five years after the case had been ordered to arbitration by the lower court, and no reasonable explanation had been given by plaintiffs for the delay, and during the time the defendant company had been acquired by the Allegheny County Port Authority it was Held that the court below had properly entered a judgment of non pros.

2. The lower court may grant a non pros. when it appears that the plaintiff has failed to prosecute his action within a reasonable time, there is no reasonable excuse for the delay, and the delay has been prejudicial to the defendant.

3. The decision to grant a non pros. is within the sound discretion of the lower court and will not be reversed on appeal absent proof of a manifest abuse thereof.

4. If the delay in prosecuting the suit is as long or longer than the statute of limitations for the commencement of the action, a non pros. may generally be entered.

5. As a matter of fairness one who brings another into court should prosecute the claim against him with reasonable diligence.

Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, CERCONE, and SPAETH, JJ. (SPAULDING, J., absent.)

Appeal, No. 222, April T., 1973, from judgment of Court of Common Pleas, Civil Division, of Allegheny County, No. 1677 of 1973, in case of Charles Rizzo and Betty Jane Rizzo v. Pittsburgh Railways Company, Defendant, and City of Pittsburgh, Additional Defendant. Judgment of non pros. affirmed.

Trespass for personal injuries.

Order entered granting petition by defendants for judgment of non pros., order by PRICE, JR., J. Plaintiffs appealed.

Louis Vaira, for appellants.

Howard K. Hilner, with him Joseph A. Fricker, Jr., Assistant City Solicitor, for appellee.


Argued November 15, 1973.


This is an appeal by the plaintiffs from a judgment of non pros. entered in favor of the defendants. The only issue before us is whether the lower court abused its discretion in granting the non pros.

The accident which precipitated this lawsuit occurred on October 18, 1962. On July 17, 1963, the plaintiffs filed their complaint in trespass. The case was listed for trial on January 5, 1965, but at plaintiffs' request it was continued indefinitely. The case was again listed for trial on March 20, 1968, but at a pretrial conference on February 19, 1968, the lower court ordered the case to arbitration. No further proceedings were forthcoming until January 16, 1973, when plaintiffs had the case scheduled for an arbitration hearing on March 15, 1973. On February 13, 1973, defendant, Pittsburgh Railways Company, filed a petition requesting the court to enter a judgment of non pros., alleging that the plaintiffs had "abandoned the cause of action, and to re-list this case for trial, at the present time, would be prejudicial to the rights of the defendant."

The lower court may grant a non pros. when it appears that the plaintiff has failed to prosecute his action within a reasonable time, there is no reasonable excuse for the delay, and the delay has been prejudicial to the defendant. James Bros. Co. v. Union Banking Trust Co., 432 Pa. 129, 247 A.2d 587 (1968). Such a decision is within the sound discretion of the lower court and will not be reversed on appeal absent proof of a manifest abuse thereof. Id.; Gallagher v. Jewish Hosp. Ass'n, 425 Pa. 112, 228 A.2d 732 (1967); Poluka v. Cole, 222 Pa. Super. 500, 295 A.2d 132 (1972). If the delay in prosecuting the suit is as long or longer than the statute of limitations for the commencement of the action, a non pros. may generally be entered. 5 Standard Pennsylvania Practice 108-109 (1958).

The facts in the present case reveal that the cause of action occurred over 11 years ago; almost 5 years elapsed before the plaintiffs listed their case for arbitration after it had been ordered there by the lower court; no reasonable explanation was given by the plaintiffs for the delay; and during this time defendant, Pittsburgh Railways Company, was acquired by the Allegheny County Port Authority. The lower court found that such acquisition has prejudiced this defendant's ability to defend the action since defendant has lost control over its former employees who would have been helpful to its defense.

In Gallagher v. Jewish Hospital Association, supra at 115, 228 A.2d at 734, the Pennsylvania Supreme Court, quoting from Hruska v. Gibson, 316 Pa. 518, 521, 175 A. 514, 515-16 (1934), stated: "The statute of limitations fixes the time as two years from the happening of an accident to the bringing of suit. It imposes no hardship on those who institute suit to understand that they must bring this action within two years. It certainly does not impose a hardship on those bringing the suit to require them to bring it to trial within a reasonable time thereafter. If it is against public policy to permit trespass suits to be begun more than two years after the action arose, it is equally against public policy to permit trespass suits to be tried more than nine years after they were started, unless delay is satisfactorily explained. . . . As a matter of fairness one who brings another into court should prosecute the claim against him with reasonable diligence."

Under the facts presently before us, we cannot say that the court below has abused its discretion.

Judgment of non pros. affirmed.


Summaries of

Rizzo et ux. v. Pittsburgh Railways Co.

Superior Court of Pennsylvania
Apr 3, 1974
323 A.2d 174 (Pa. Super. Ct. 1974)

In Rizzo v. Pittsburgh Railways Co., 226 Pa. Super. 566, 323 A.2d 174 (1974), we were faced with an analogous situation.

Summary of this case from Kennedy v. the Bulletin Co., et al
Case details for

Rizzo et ux. v. Pittsburgh Railways Co.

Case Details

Full title:Rizzo et ux., Appellants, v. Pittsburgh Railways Company et al

Court:Superior Court of Pennsylvania

Date published: Apr 3, 1974

Citations

323 A.2d 174 (Pa. Super. Ct. 1974)
323 A.2d 174

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