J-A11027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARTINEZ CONTRACTOR SERVICES IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellant

v.

MOON SITE MANAGEMENT, INC. AND

ETNA CORPORATION, INC.

No. 932 MDA 2016

Appeal from the Order Entered May 12, 2016

In the Court of Common Pleas of Berks County

Civil Division at No(s): 13-15951

BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 09, 2017

Martinez Contractor Services (“Martinez Contractor”) appeals from the 

May 12, 2016 order entered in the Berks County Court of Common Pleas 

denying Martinez Contractor’s petition to set aside the dismissal of its case. 

We vacate the order and remand for further proceedings.

This case arises from a contract between Martinez Contractor and Moon 

Site Management, Inc. (“Moon Site”) for snow removal services. On June 28, 

2013, Martinez Contractor filed a complaint alleging breach of contract against 

Moon Site, Moon Nurseries, Inc. (“Moon Nurseries”), and Etna Corporation, 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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Inc. (“Etna”).1 On July 22, 2013, Moon Site and Moon Nurseries filed 

preliminary objections. On August 12, 2013, counsel for Martinez Contractor 

entered his appearance and, on the same day, responded to the preliminary 

objections. On August 20, 2013, the trial court entered a partially handwritten 

order overruling the preliminary objections as to Moon Site and sustaining the 

preliminary objections as to Moon Nurseries. The order stated that Martinez 

Contractor “may file an amended complaint within twenty (20) days.” 

Amended Order, 8/30/13. On August 30, 2013, the trial court issued an 

amended order for clarification, containing the same language as the previous 

order. On September 23, 2013, Moon Site filed its answer. From November 

2013 to February 2014, there were several withdrawal and substitutions of 

counsel on behalf of Moon Site.

On February 2, 2016, the prothonotary issued a notice of proposed 

termination of the case. The notice stated that “[t]he court intends to 

terminate this case without further notice because the docket shows no 

activity in the case for at least two years. You may stop the court from 

terminating the case by filing a Statement of Intention to Proceed.” Notice of 

Proposed Termination of Court Case, 2/2/16 (“Termination Notice”). On 

February 17, 2016, Martinez Contractor filed a statement of intent to proceed. 

On March 4, 2016, the trial court scheduled a status conference for April 7, 

2016, which it continued to May 11, 2016. Counsel for Martinez Contractor 

____________________________________________

1 A review of the certified record indicates that Etna has not participated 

in this litigation.
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failed to appear at the status conference on May 11, 2016, and the trial court 

dismissed the case with prejudice. 

On May 20, 2016, Martinez Contractor filed a petition to set aside the 

dismissal. On May 31, 2016, the trial court issued an order for Moon Site and 

Etna to show cause within 25 days why Martinez Contractor was not entitled 

to the relief requested. On June 8, 2016, Martinez Contractor filed a timely 

notice of appeal.2 The trial court later scheduled argument on the petition to 

set aside the dismissal for July 14, 2016. Following the hearing, the trial court 

“denied [Martinez Contractor] the relief requested.”3 Opinion, 8/26/16, at 3. 

Martinez raises the following issues on appeal:

1. Is [Martinez Contractor] entitled to reinstatement of his 

case because the trial court did not consider [Martinez 

Contractor]’s inadvertent failure to attend the status 

conference and the three prong test to set aside the 

dismissal, but decided based only on the issue of lack of 

activity on the docket?

2. Did the trial court err in dismissing [Martinez 

Contractor]’s case without balancing the equitable 

considerations, in particular, failing to find prejudice to 

[Moon Site], from [Martinez Contractor]’s delay[?] The 

trial court also mentioned [Martinez Contractor]’s failure 

to file an amended complaint which [Martinez 

Contractor] submits was not supported by the record.

____________________________________________

2 On June 21, 2016, Moon Site filed a letter in lieu of a formal response 

to Martinez Contractor’s petition due to Martinez Contractor having filed a 

notice of appeal. 

3 The present appeal was properly taken from the May 12, 2016 order 

dismissing the case with prejudice. Given our conclusion that the trial court 

erred in dismissing the case on May 12, we need not address the court’s later 

denial of the petition to set aside that dismissal.
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3. Did the trial court violate a rule of procedure when it did 

not grant reconsideration within thirty (30) days of the 

dismissal as required by [Pa.R.A.P.] 1701, if the time to 

file an appeal is to run from the order on reconsideration, 

but then held a hearing and asked Moon Site to supply 

the missing element of prejudice[?]

4. If the Concise Statement of Errors is not received by the 

prothonotary within twenty-one (21) days set forth in the 

trial court’s order, the appellate court may raise the issue 

and deem the matters raised on appeal waived.

Martinez Contractor’s Br. at 5-7 (internal citations and arguments omitted).

We review “whether an action has been properly terminated pursuant 

to Pennsylvania Rule of Judicial Administration 1901 [(“Pa.R.J.A. 1901”)], or 

its local rule counterpart,” for an abuse of discretion and will not disturb a trial 

court’s decision “absent an abuse of that discretion or an error of law.” 

Tucker v. Ellwood Quality Steels Co., 802 A.2d 663, 664 (Pa.Super. 2002) 

(quoting Setty v. Knepp, 722 A.2d 1099 (Pa.Super. 1998)).4

Pa.R.J.A. 1901(a) states that “[i]t is the policy of the unified judicial 

system to bring each pending matter to a final conclusion as promptly as 

possible consistently with the character of the matter and the resources of the 

system.” Pa.R.J.A. 1901(a). “Where a matter has been inactive for an 

unreasonable period of time, the tribunal, on its own motion, shall enter an 

____________________________________________

4 We note that while Pennsylvania Rule of Civil Procedure 230.2 provides 

a procedural mechanism for the termination of inactive cases, the 

Pennsylvania Supreme Court suspended this rule from April 2014 to December 

2016. Thus, this rule was suspended during the time Martinez Contractor’s 

case was dismissed due to inactivity. See Pa.R.C.P. 230.2 exp. cmt. Pa.R.J.A. 

1901(a), however, remained in effect during that period.
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appropriate order terminating the matter.”5 Id. Rule 1901(b)(1) provides 

that each court of common pleas may develop its own local rule to dispose of 

cases that have been inactive for more than two years.6 Pa.R.J.A. 1901(b)(1). 

Although Pa.R.J.A. 1901(c) states that the parties should receive “30 days’ 

written notice of opportunity for hearing,” this Court has interpreted this 

provision to mean that the parties must be given an opportunity to respond 

____________________________________________

5 A dismissal of a case due to inactivity pursuant to Pa.R.J.A. 1901 is 

distinct from a judgment of non pros. In Shope v. Eagle, our Supreme Court 

explained:

Although terminations pursuant to Rule 1901 and motions 

for non pros both result in the dismissal of a case for 

inactivity, each action has a distinct procedure.

Rule 1901 is essentially an administrative tool by which 

the court, through the prothonotary, may rid the court 

dockets of stale matters that have not been discontinued by 

the parties. The local rules implemented thereunder are 

“intended to foster elimination of stale cases from the 

judicial system where the parties have failed to proceed and 

which are carried as open matters because of the failure on 

the part of any party to seek dismissal or otherwise to bring 

the matter to a conclusion.” Pa.R.J.A. 1901 Note.

A motion for a judgment of non pros is the vehicle by 

which a litigant asserts his or her common law right to a 

reasonably prompt conclusion to a case. In the companion 

case of Jacobs v. Halloran[, 710 A.2d 1098 (Pa. 1998)],

also decided today, we noted that the grant of a judgment 

of non pros is based upon the equitable principle of laches, 

which requires that the adversary suffer harm before a case 

is dismissed for inactivity.

710 A.2d 1104, 1106 (Pa. 1998) (internal footnotes omitted).

6 We note that Berks County has not enacted a local rule pursuant to 

Pa.R.J.A. 1901. 
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to the notice before termination, either orally or in writing. See, e.g.,

Samaras v. Hartwick, 698 A.2d 71, 72-73 (Pa.Super. 1997) (noting that 

local rule’s notice procedure, requiring filing of “a certification of active status 

within 30 days” of pre-termination notice, satisfied Pa.R.J.A. 1901’s “minimal 

procedural protections”).

Martinez Contractor contends that the trial court erred in dismissing its 

case because it filed a statement of intent to proceed in a timely manner as 

required by the Termination Notice.

The Termination Notice stated:

The court intends to terminate this case without further 

notice because the docket shows no activity in the case for 

at least two years.

You may stop the court from terminating the case 

by filing a Statement of Intention to Proceed. The 

Statement of Intention to Proceed should be filed with the 

Prothonotary of the Court at:

Berks County Prothonotary, 2nd Floor Courthouse, 633 

Court Street, Reading, PA 19601 on or before 4/02/16

IF YOU FAIL TO FILE THE REQUIRED STATEMENT OF 

INTENTION TO PROCEED, THE CASE WILL BE 

TERMINATED.

Termination Notice (full capitalization in original; other emphasis added).

On February 17, 2016, Martinez Contractor filed with the Prothonotary 

its statement of intent to proceed. On March 3, 2016, the trial court stated 

that because a statement of intent to proceed had been filed, it was scheduling 

a status conference for April 7, 2016, which it later continued to May 11, 2016. 
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Counsel for Martinez Contractor failed to appear,7 and the trial court dismissed 

the case with prejudice. In its May 11, 2016 order, filed on May 12, 2016, the 

trial court set forth its reasons for dismissing the case, which centered on 

Martinez Contractor’s failure to actively pursue the litigation.8 Further, in its 

Rule 1925(a) opinion, the trial court explained that “it did not sanction 

[Martinez Contractor]’s attorney for the missed conference; it sanctioned 

[Martinez Contractor] for its overall lack of prosecution since 2013, its lack of 

compelling reasons for the delay, and the prejudice to [Moon Site].” Opinion, 

____________________________________________

7 Counsel explained that he failed to appear at the status conference 

due to an inadvertent failure to add the new date on his calendar. Martinez 

Contractor’s Br. at 23.

8 The order dismissing the case stated:

AND NOW, this 11th day of May, 2016, it appearing that 

[Martinez Contractor] filed an action in 2013 by filing a civil 

complaint, and it further appearing that preliminary 

objections were filed and sustained by this Court and 

[Martinez Contractor] was given the opportunity to file an 

amended complaint, and it further appearing that no 

complaint is of record, and it further appearing that no 

action has been taken in two years, and it further appearing 

that notice has been provided by the Prothonotary of the 

termination of this case and that this Court, on April 7th, 

scheduled this matter for a status this date and that no one 

has appeared on behalf of [Martinez Contractor], it is hereby 

ordered that the motion to dismiss is sustained. The matter 

is discontinued, ended and completed with prejudice.

Trial Ct. Order, 5/12/16.
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8/26/16, at 7.9

The trial court’s Termination Notice required only that Martinez 

Contractor file a statement of intent to proceed by April 2, 2016 to prevent 

termination of the case. Within 15 days, Martinez Contractor filed its 

statement of intent to proceed, thus satisfying the only requirement in the 

notice. The status conference scheduled for May 11, 2016 was not a hearing 

to determine whether Martinez Contractor should be allowed to proceed. 

____________________________________________

9

In its May 12, 2016 order, the trial court also stated that: it had 

sustained Moon Site’s preliminary objections; had given Martinez Contractor 

an opportunity to file an amended complaint, which it did not file; and no 

complaint appeared in the record. We find it necessary to address the 

inaccuracies in these statements.

The amended order sustaining in part and overruling in part Moon Site 

and Moon Nurseries’ preliminary objections stated:

1. Defendants’ preliminary objection as to Moon Nurseries 

is sustained. Plaintiff may file an amended complaint 

within twenty (20) days of receipt of this Order.

2. The preliminary objections as to Moon Site Management, 

Inc. are overruled.

Amended Order, 8/30/13. The order stated that Martinez Contractor “may” 

file an amended complaint, which it would need to do if it wished to proceed 

against Moon Nurseries. As to Moon Site, the order stated that the preliminary 

objections were overruled, meaning that Martinez Contractor had no 

obligation to file an amended complaint. Indeed, in the paragraph addressing 

Moon Site, the order makes no mention of an amended complaint.

Further, while the May 12, 2016 order stated there was no complaint of 

record, our review of the certified record shows that Martinez Contractor filed 

a complaint on June 28, 2013.
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Accordingly, we conclude that the trial court abused its discretion in

terminating the case due to inactivity.10

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2017

____________________________________________

10 We note that Pennsylvania Rule of Civil Procedure 230.2 was 

reinstated effective December 31, 2016, and so would govern any subsequent 

termination of this case for inactivity.