J-S03017-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KIMBERLY G. AND BRETT A. 

OSBORNE 

Appellants

v.

BOSCOV’S INC. & BOSCOV’S 

DEPARTMENT STORE LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 902 MDA 2023

Appeal from the Order Entered May 11, 2022

In the Court of Common Pleas of Berks County Civil Division at No(s): 

16-13921

BEFORE: OLSON, J., NICHOLS, J., and BECK, J.

MEMORANDUM BY NICHOLS, J.: FILED MAY 14, 2024

Appellants Kimberly G. Osbourne and Brett A. Osbourne appeal from 

the order terminating their case against Appellees Boscov’s Inc. and Boscov’s 

Department Store LLC due to inactivity. Appellants argue that the trial court 

erred in dismissing the case sua sponte. Following our review, we reverse 

and remand for further proceedings.

The trial court summarized the underlying facts of this matter as follows:

This slip and fall case has a long and protracted history of inaction. 

It began on June 20, 2016 by the filing of a writ [of summons]. 

On September 26, 2016, [Appellees] filed a praecipe for rule to 

file complaint. [Appellants] finally filed their complaint on 

February 15, 2017, almost eight months after the writ had been 

filed.

The complaint alleged that the [Appellants] are married. On June 

25, 2014, Kimberly Osborne (hereinafter, Wife) went to shop in 

[Appellees’] retail tent that was located on [Appellees’] parking 

lot. As Wife was walking inside the tent, her foot went into a
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depression in the asphalt paving, causing her to lose her balance 

and fall, whereupon she fractured her ankle and sustained other 

serious injuries. 

The complaint contained two counts. Count I was a negligence 

claim, and Count II was Brett Osborne’s claims for loss of 

consortium and for expenses. 

On March 19, 2018, [Appellees] filed an answer with new matter, 

containing a notice to plead. This was the last court action on the 

docket until February 19, 2020 when the Prothonotary’s office 

issued a termination notice with a projected termination date of 

March 20, 2020. On March 3, 2020, [Appellants] filed a statement 

of intention to proceed. Thereafter, on August 14, 2020, the 

parties filed a proposed joint case management order, which this 

court signed on August 17, 2020. 

The deadline for dispositive motions was May 1, 2021. The next 

activity on the docket was on July 20, 2022 when the 

Prothonotary’s office filed another termination notice. On August 

16, 2022, [Appellants] filed another statement of intention to 

proceed. 

Trial Ct. Op., 6/15/23, at 1-2 (some formatting altered).

The trial court conducted a status hearing on May 8, 2023. At that time, 

Appellants requested that the trial court allow the parties additional time to 

complete discovery and explained that, by the next status hearing, “[t]he case 

will either be finished, or we can list it for trial.” N.T. Hr’g, 5/8/23, at 8. In 

response, the trial court stated that it only had “45 days with this case, and 

then – then it’s someone else’s. And . . . my assignment [] is to dispose of 

these open cases, which is what I’m doing.” Id. at 8. Ultimately, after it 

became clear that the parties could not resolve the matter within that time 

period, see id. at 8-9, the trial court ordered the case “ended and discontinued 

with prejudice for failure to prosecute the matter.” Id. at 9.
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Thereafter, the following exchange occurred:

[Appellants’ counsel]: Your Honor, I – I can’t believe that, Your 

Honor. 

THE COURT: I’m sorry. I -- I don’t what else –

[Appellants’ counsel]: I mean, I -- I understand that you’re --

you’re going to retire, Your Honor, and that you’ve been asked to 

get these cases off of your docket. But this is a pending case. It’s 

an important case for my client. She fractured her ankle in the 

parking lot at Boscov’s and --

THE COURT: Well, you certainly have the right to appeal it. I

mean, that’s -- that’s for sure. Okay. All right. Thank you.

Id.

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing 

Appellants’ claims.

1. Did the trial court err when it sua sponte dismissed 

[Appellants’] complaint given that no parties to the proceedings

requested non pros?

2. Did the trial court err when it sua sponte dismissed 

[Appellants’] complaint given that there were compelling 

reasons for the delay and when there was no showing of 

prejudice to the adverse party?

Appellants’ Brief at 4.

Both of Appellants’ claims relate to the trial court’s order terminating 

their case for inactivity. First, Appellants argue that the trial court did not 

have the authority to terminate the case sua sponte. Id. at 9. Second, 

Appellants contend that the trial court erred in dismissing the complaint 
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because there were compelling reasons for the delay and no showing of 

prejudice to Appellees. Id. at 12.

It is well settled that a court may invoke its inherent power to dismiss a 

case for lack of activity on the docket. See Penn Piping, Inc. v. Insurance 

Co. of North America, 603 A.2d 1006, 1008 (Pa. 1992), abrogated in part 

by Jacobs v. Halloran, 710 A.2d 1098, 1102 (Pa. 1998); see also Pa.R.J.A. 

1901(a) (stating that “[w]here 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”).1 

In reviewing an order dismissing a case for inactivity, our standard of 

review is the same regardless of whether the motion is brought by the 

defendant or sua sponte by the trial court. See Shope v. Eagle, 710 A.2d 

1104, 1105 (Pa. 1998) (explaining that “the standard applicable to 

terminations for inactivity pursuant to a defendant’s motion for non pros 

applies equally to dismissals pursuant to Rule 1901”). As this Court has 

explained, the decision to dismiss a case “rests within the discretion of the 

trial court and will not be disturbed on appeal unless there is proof of a 

manifest abuse of that discretion.” Mudd v. Nosker Lumber, Inc., 662 A.2d 

660, 662 (Pa. Super. 1995) (citation omitted). 

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1 We further note that under Pa.R.J.A. 1901, “[i]t is [a] plaintiff’s duty to move 

the case forward and to monitor the docket to reflect that movement.” Golab 

v. Knuth, 176 A.3d 335, 339 (Pa. Super. 2017) (citation omitted). Rule 1901 

reflects the general policy of this Commonwealth to promote the prompt 

completion of litigation. See id. at 340.
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A trial court may dismiss a case for inactivity under the following 

circumstances: (1) a party has shown lack of due diligence by failing to 

proceed with reasonable promptitude, (2) there is no compelling reason for 

the delay, and (3) the delay has caused actual prejudice to the adverse party. 

See Jacobs, 710 A.2d at 1103. Our Supreme Court has explained that 

prejudice is “any substantial diminution of a party’s ability to properly present 

its case at trial.” Id. (citations omitted). This determination is to be made by 

the trial court, whose decision will not be disturbed absent an abuse of 

discretion. Id.

Here, the trial court explained:

In the case sub judice, the only act [Appellants] accomplished was 

to file a complaint. Even this was only done after [Appellees]

compelled [Appellants] by filing a praecipe to have [Appellants] 

file a complaint. The incident on which the accident is based 

occurred in 2014, almost nine years ago. This case has been 

stagnant since [Appellees] filed their answer with new matter on 

March 19, 2018. [Appellants] never filed a response to the new 

matter despite the notice to plead attached to the pleading. 

This is not a complex case. [Appellants] proffer[] no legitimate 

excuse for the delay. This case was inactive long before the 

restrictions of COVID-19 and continued to remain dormant even 

after the courts’ emergency orders were no longer in effect. 

Furthermore, the delay in this case exceeds five years. Thus, 

[Appellees] are presumed to have suffered prejudice. 

Trial Ct. Op. at 3.

Following our review of the record, we conclude that although the trial 

court had the authority to terminate the case for inactivity, see Penn Piping, 

603 A.2d at 1008, the trial court erred in doing so without determining
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whether “the delay . . . cause[d] actual prejudice to the defendant.” Shope, 

710 A.2d at 1108. In its opinion, the trial court found that Appellees were 

presumed to have suffered prejudice because the delay exceeded five years. 

See Trial Ct. Op. at 3. However, our Supreme Court has expressly rejected

the presumption of prejudice as “inconsistent with the well-established notion 

that the adversary must suffer harm before a case is dismissed for lack of 

prosecution.” See Jacobs, 710 A.2d at 1102 (abrogating in part Penn 

Piping). Further, there is nothing in the record to reflect that Appellees 

suffered prejudice as a result of the delay in this case. See N.T. Hr’g, 5/8/23, 

at 1-9. Accordingly, we are constrained to reverse the order terminating this 

action and remand for further proceedings. 

On remand, the trial court shall conduct a hearing to address the 

remainder of the three-part test, i.e., whether Appellees suffered actual 

prejudice due to the delay in activity. See Jacobs, 710 A.2d at 1103; Shope, 

710 A.2d at 1108.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/14/2024