J. A12039/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM TRIMBLE, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

: No. 1320 EDA 2017

CHRISTOPHER RODRIGUEZ AND 

BONNIE RODRIGUEZ

:

:

Appeal from the Order Entered April 20, 2017,

in the Court of Common Pleas of Pike County

Civil Division at No. 856-2013-Civil

BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 16, 2018

William Trimble (“appellant”) appeals from the April 20, 2017 order 

entered by the Court of Common Pleas of Pike County denying appellant’s 

motion to strike pro forma dismissal and reopen matter. After careful review,

we reverse and remand for further proceedings consistent with this 

memorandum.

The trial court provided the following synopsis of the relevant facts:

On December 30, 2016, the Pike County Court 

Administrator, issued a Notice identifying all pending 

matters which, pursuant to Pennsylvania Rule of Civil 

Procedure 230.2,[

1] would be dismissed for inactivity 

unless a request for a hearing on the matter was 

timely made.

 

1 The notice issued by the Pike County court administrator was sent pursuant 

to Pike County Local Rule 230.2.
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Approximately thirty (30) days later, Defendants 

Christopher and Bonnie Rodriguez [(“appellees”)] filed 

a Motion to Compel Plaintiff’s Responses to 

Supplemental Interrogatories and Request for 

Production of Documents (“Motion to Compel”). This 

Court issued a Rule Returnable for Answer in 

twenty (20) days (“Rule Returnable”) on January 31, 

2017. Appellant filed an Answer to the Motion to 

Compel on February 22, 2017.

On April 10, 2017, [appellees] filed a Petition for Oral 

Argument and on April 13, 2017, this Court issued an 

Order indicating that the matter had been closed since 

December 30, 2016, due to inactivity and vacating the 

Rule Returnable issued on January 31, 2017. On 

April 18, 2017, [a]ppellant filed a Motion to Strike 

Pro Forma Dismissal and Reopen Matter (“Motion to 

Strike”), claiming neither [a]ppellant nor [a]ppellant’s 

counsel received notice of dismissal for inactivity.

On April 20, 2017, this Court issued an Order denying 

[a]ppellant’s Motion to Strike, citing Pennsylvania 

Rule of Civil Procedure 230.2. Appellant filed a Notice 

of Appeal on April 21, 2017, and was ordered to file 

and serve a Concise Statement of Matters Complained 

of on Appeal (“Concise Statement”) three (3) days 

later. Appellant filed a Concise Statement on May 15, 

2017, and [appellees] filed a Response to 

[appellant’s] Statement of Matters Complained of on 

Appeal on May 25, 2017.

Trial court opinion, 6/6/17 at 1-2. The trial court filed an opinion pursuant to 

Pa.R.A.P. 1925(a) on June 6, 2017.

Appellant raises the following issue for our review:

Did the trial court abuse its discretion or commit 

errors of law in (a) refusing to conduct a hearing or 

other fact-finding to determine if notice of the 

proposed termination of the underlying action and 

notice of the actual order terminating the action were 

properly served in accordance with relevant rules, 

where there is no indication in the record that they 
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were; and (b) refusing to reinstate the action in light 

of the peculiar procedural facts of this case and where 

the plaintiff's request for reinstatement was made 

immediately upon discovering that the matter had 

been terminated?

Appellant’s brief at 4.

Before addressing appellant’s issue on appeal on its merits, we must 

first note that at the time the trial court dismissed appellant’s case on 

December 30, 2016, Pennsylvania Rule of Civil Procedure 230.2 was 

suspended pursuant to a per curiam order entered April 23, 2014 by our 

supreme court.2 The order, however, indicated that trial courts may 

administratively purge dormant civil matters pursuant to Pennsylvania Rule of 

Judicial Administration 1901. Accordingly, our standard of review is as 

follows:

The question of whether an action has been properly 

terminated pursuant to Pa.R.J.A. 1901, or its local rule 

counterpart, rests within the discretion of the trial 

court and will not be disturbed absent an abuse of that 

discretion or an error of law. Jacobs v. Halloran, [],

710 A.2d 1098, 1101 (Pa. 1998) (whether non pros

was properly granted for plaintiff’s failure to prosecute 

his action within a reasonable period of time rests 

within the discretion of the trial court); Shope v. 

Eagle, [], 710 A.2d 1104, 1105 (Pa. 1998) (applying 

the abuse of discretion standard set forth in Jacobs, 

supra, where complaint dismissed pursuant to 

Pa.R.J.A. 1901); Marino v. Hackman, [], 710 A.2d 

1108, 1110 n.4 (Pa. 1998) (same); Samaras v. 

Hartwick, 698 A.2d 71, 72 (Pa.Super. 1997).

 

2 Rule 230.2 was reinstated on December 31, 2016.
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Tucker v. Ellwood Quality Steels Co., 802 A.2d 663, 664-665 (Pa.Super. 

2002), quoting Setty v. Knepp, 722 A.2d 1099, 1101 (Pa.Super. 1998).

Pennsylvania Rule of Judicial Administration 1901, in relevant part, 

requires a trial court to enter an appropriate order terminating a case, 

sua sponte, after a case “has been inactive for an unreasonable period of 

time.” Pa.R.J.A. 1901(a). Rule 1901 also provides the following minimum 

requirements for terminating a case:

(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, which notice shall be given:

(1) In person or by mail to the last 

address of record of the parties or 

their counsel of record and setting 

forth a brief identification of the 

matter to be terminated; or

(2) By publication in the manner 

provided by rule of court in the legal 

newspaper designated by rule of 

court for the publication of legal 

notices in any case where notice by 

mail cannot be given or has been 

returned undelivered or where the 

docket of the matter shows no 

evidence of activity during the 

previous two years. Any matter 

terminated after notice by 

publication pursuant to this 

paragraph may be reinstated by the 

court after dismissal upon written 

application for good cause shown.

Pa.R.J.A. 1901(c).
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Finally, Rule 1901 directs each court of common pleas to implement 

local rules of court pursuant to Rule 1901. Pa.R.J.A. 1901(b)(1). The Pike 

County Local Rules of Court provide, in relevant part:

Rule 230.2. Termination of Inactive Cases

(a) At the direction of the Court Administrator, the 

Prothonotary shall create a list of all civil 

matters in which no steps or proceedings have 

been taken for two years or more prior thereto.

Upon creation of the list the Court Administrator 

shall serve notice to counsel of record and to the 

parties for whom no appearance has been 

entered, as provided by Pa.R.C.P. 230.2(2).

(b) Parties receiving notice of the proposed 

termination of their case, as described in 

paragraph (a) may file a Statement of Intention 

to Proceed. The Statement of Intention to 

Proceed shall be filed with the Prothonotary 

within sixty (60) days from the date the Notice 

of Proposed Termination is filed. A copy of the 

Statement of Intention to Proceed shall be 

served upon the Court Administrator and the 

opposing party, or counsel, if represented.

(c) If no Statement of Intention to Proceed is filed

within sixty (60) days of the Notice of Proposed 

Termination, the Prothonotary shall enter an 

order as of course, terminating the matter with 

prejudice for failure to prosecute.

Pa.R. Pike Cty. Civ. Rule 230.2(a)-(c).

We now turn to appellant’s contention that the trial court erred when it 

refused to conduct an evidentiary hearing to determine if notice of the 

proposed termination of the underlying action and notice of the order 

dismissing this case were properly served in accordance with the relevant 
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rules of civil procedure and judicial administration. On appeal, appellant 

makes the following argument:

Although the Notice of Proposed Termination 

references the plaintiff’s counsel’s mailing address, it

is submitted that correspondence between the court 

and local attorneys (including proposed termination 

notices, which issue at regular intervals) is almost 

always conducted via inter-office mailboxes in the 

Pike County Courthouse, and based on informal,

off-record communication with Pike County’s Office of 

Court Administration, it is believed and therefore 

averred that if the trial court had held an evidentiary 

hearing on the plaintiff’s motion requesting 

reinstatement, the relevant member of Court

Administration’s staff would have testified under oath 

that the common practice was to deliver proposed 

termination notices to local counsel via their 

inter-office boxes . . . .

Appellant’s brief at 10-11. In raising this argument, appellant cites to Kane 

v. Vigunas, 967 A.2d 987 (Pa.Super. 2009), appeal denied, 981 A.2d 220 

(Pa. 2009). In Kane, this court held that serving notice via an inter-office 

mailbox was not sufficient notice pursuant to Pa.R.Civ.P. 230.2,3thereby 

reversing the trial court’s denial of Darryl Kane’s petition to reinstate action 

that had been terminated due to inactivity. Kane, 967 A.2d at 994.

In its Rule 1925(a) opinion, the trial court cited to case law referencing

the mailbox rule, and found that appellant is unable to overcome the mailbox 

rule’s presumption of receipt. 

 

3 While Pa.R.Civ.P. 230.2 was suspended when this case was terminated, both 

Pa.R.J.A. 1901 and Pike County Local Rule 230.2 contained virtually identical 

language.
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The mailbox rule provides that “depositing in the post 

office a properly addressed prepaid letter raises a 

natural presumption, founded in common experience, 

that it reached its destination by due course of mail.” 

Jensen v. McCorkell, [], 26 A. 366, 367 (Pa. 1893) 

(citation omitted). As the Pennsylvania Supreme 

Court noted: “The overwhelming weight of statistics 

clearly indicates that letters properly mailed and 

deposited in the post office are received by the 

addressees. Meierdierck v. Miller, [], 147 A.2d 406, 

408 (Pa. 1959). Thus, “[e]vidence that a letter has 

been mailed will ordinarily be sufficient to permit a 

[fact finder] to find that the letter was in fact received 

by the party to whom it was addressed.” Shafer v. 

A. I. T. S., Inc., [], 428 A.2d 152, 156 (Pa.Super. 

1981) (citations omitted).

However, “evidence of actual mailing is not required.” 

Commonwealth, Dep’t of Transp. v. Brayman 

Constr. Corp., [], 513 A.2d 562, 566 (Pa.Cmwlth. 

1986)[]. The Superior Court has held that “when a 

letter has been written and signed in the usual course 

of business and placed in the regular place of mailing, 

evidence of the custom of the establishment as to the 

mailing of such letters is receivable as evidence that 

it was duly mailed.” Christie v. Open Pantry Food 

Marts Inc. of Delaware Valley, [], 352 A.2d 165, 

166-167 (Pa.Super. 1975) (citation omitted). To 

trigger the presumption of receipt, “the party who is 

seeking the benefit of the presumption must adduce 

evidentiary proof that the letter was signed in the 

usual course of business and placed in the regular 

place of mailing.” Geise v. Nationwide Life & 

Annuity Co. of America, 939 A.2d 409, 423 

(Pa.Super. 2007) (emphasis added); Shafer, 428 

A.2d at 156. “A presumption that a letter was 

received cannot be based on a presumption that the 

letter was mailed. A presumption cannot be based on 

a presumption.” Geise, 939 A.2d at 423 (citations 

omitted). Documentary evidence of mailing or 

testimony from the author that a document was 

mailed may establish the presumption of receipt. See 

[Commonwealth, Dep’t of Transp. v. Grasse, 606 

A.2d 544, 546 (Pa.Super. 1992)] (holding appellees 
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met burden of proof of mailing by producing certified 

driving record which included document showing 

notice was mailed; cf. Meierdierck, [], 147 A.2d at 

408 (holding that “[w]here the use of the mails as a 

means of acceptance is authorized or implied from the 

surrounding circumstances, the acceptance is 

complete by posting the letter in normal mail 

channels, without more.”).

Szymanski v. Dotey, 52 A.3d 289, 292-293 (Pa.Super. 2012) (emphasis in 

original).

In Szymanski, the Civil Court Administrator testified that she was the 

author of a trial notice to be sent to David Szymanski, the appellant in the 

case. Id. at 293. The Court Administrator did not testify “that she placed the 

notice in her office’s usual place for outgoing mail, nor did she testify that she 

or any other employee mailed it via any method of mailing.” Id. Moreover, 

the trial court in Szymanski found that the record did not reflect any 

documentary evidence indicating that the trial notice was mailed. In 

Commonwealth v. Thomas, 814 A.2d 754, 759 (Pa.Super. 2002), this court 

found that testimony regarding the general practice of mailing hearing notices 

was not sufficient to establish the mailbox rule’s presumption of receipt. The 

record also did not reflect any documentary evidence that the notice was 

mailed. Id. at 760.

Here, the trial court specifically found that “[t]he record indicates that a 

Notice of Proposed Termination of Court Case was sent to each attorney of 

record in the above-captioned matter on September 30, 2016.” (Trial court 

opinion, 6/6/17 at 5.) The trial court further concluded that “the Proposed 
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Termination Notice contained in the record is sufficient to raise the rebuttable 

presumption that it was properly mailed to each attorney of record on or about 

September 30, 2016, and received.” (Id. at 6.) The trial court also “note[d] 

that the Proposed Termination Notice contains the names and mailing 

addresses of both attorneys of record, a clear indication that the Proposed 

Termination Notice was mailed. (Id. at 7.)

The record before us does not support the trial court’s findings. A notice 

of proposed termination of court case dated September 30, 2016, is located 

within the record; however, the document does not have a corresponding

entry in the docket. Moreover, the notice does not facially reflect that it was 

mailed to appellant’s counsel, and no certificate of service is included. While 

the trial court is correct in its observation that each attorney’s name and 

mailing address is included on the termination notice, the inclusion of such 

information does not automatically trigger a presumption that the notice was 

mailed. Indeed, appellant’s counsel’s name and mailing address appeared on 

the notice in the following context:

NOTICE OF PROPOSED TERMINATION OF COURT 

CASE

To Movant or Counsel if represented:

Thomas E. Mincer, Esquire

106 W High Street

Milford, PA 18337

Copy of this Notice was sent to the Opposing 

Party or Counsel if represented:
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Benjamin A. Nicolosi, Esquire

PO Box 3118

Scranton, PA 18505

Re: William Trimble v. . . . 

Notice of proposed termination of court case, 9/30/16 (bold type in original). 

Taken in this context, it is impossible to determine whether this notice was 

mailed, personally handed to Mr. Mincer, or placed in an inter-office mailbox 

as Mr. Mincer avers. (See appellant’s brief at 10-11.) Further, unlike with 

other orders of court throughout the case, there is no entry on the docket 

reflecting that a copy of the notice had been mailed to the parties.

Accordingly, we find that the trial court abused its discretion when it 

declined to conduct a hearing or other fact-finding to determine if the notice 

of proposed termination was properly served. We therefore reverse the trial 

court’s April 20, 2017 order denying appellant’s motion to strike, and remand 

for the trial court to conduct an evidentiary hearing as to whether the notice 

of proposed termination was properly served.

Order reversed. Case remanded. Jurisdiction relinquished.

Ott, J. joins this Memorandum.

Bowes, J. files a Concurring and Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/18