J-S75018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

USA FEDERAL CREDIT UNION IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KATHERINE S. GARGES

Appellant No. 3422 EDA 2015

Appeal from the Order Entered October 9, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2005-02231

BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED OCTOBER 14, 2016

Katherine S. Garges appeals, pro se, from the October 9, 2015 order of 

the Court of Common Pleas of Montgomery County denying with prejudice her 

petition to reinstate this action following termination for inactivity. Because we 

conclude that Garges failed to establish good cause for reinstatement, we 

affirm.

In February 2005, USA Federal Credit Union (“USA”) filed a breach of 

contract action against Garges, seeking repayment of $11,156.14 in unpaid 

loans. In response, Garges filed an answer with new matter and a 

counterclaim, alleging that USA had engaged in unfair and deceptive debtcollection practices. Following substantial discovery, both parties filed motions 

for summary judgment: Garges on USA’s complaint and her counterclaim, and 

USA on Garges’s counterclaim. The trial court denied Garges’s summary 
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judgment motion on July 30, 2008 and granted USA’s summary judgment 

motion on August 18, 2008. As a result, the only remaining claims as of 

August 18, 2008 were USA’s claims against Garges. One year later, on August 

29, 2009, Garges filed a motion to compel answers to interrogatories and 

production of documents, which the trial court denied on October 15, 2009.

On October 20, 2014, after five years of docket inactivity, the trial court 

issued a notice of proposed termination (“Termination Notice”) to the parties 

pursuant to Montgomery County Local Rule of Judicial Administration 1901 

(“Montgomery County Rule 1901”),1 which provides in relevant part:

(b) The Court may initiate proceedings to terminate a case in 

which there has been no activity of record for two years or 

more by serving a notice of proposed dismissal of court case.

(c) The Court shall serve the notice on counsel of record, 

and on the parties if not represented, sixty days prior to the 

date of the proposed termination. The notice shall contain 

the date of the proposed termination and the procedure to 

avoid termination. . . .

. . .

(f) If no statement of intention to proceed has been filed in 

the required time period, the Prothonotary shall enter an 

order as of course terminating the matter with prejudice for 

failure to prosecute.

(g) If an action has been terminated pursuant to this rule, 

an aggrieved party may petition the court to reinstate the 

action. All matters so terminated may not be reinstated 

except with leave of Court, for cause shown.

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1 Montgomery County Rule 1901 is based on Pennsylvania Rule of 

Judicial Administration 1901 (“Pennsylvania Rule 1901”).
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Mont. Co. L.R.J.A. 1901. The Termination Notice advised the parties that the 

trial court would terminate the case without further notice unless either party 

filed a statement of intention to proceed by December 20, 2014. Neither USA 

nor Garges filed a statement of intention to proceed. Therefore, on January 5, 

2015, the trial court terminated the case.

On January 20, 2015, Garges filed a petition to reinstate the case 

pursuant to Montgomery County Rule 1901(g). After a hearing, the trial court 

denied Garges’s petition, finding that Garges had waived her right to challenge 

the termination by failing to respond to the Termination Notice. Garges timely 

appealed to this Court.2

On appeal, Garges asserts that Montgomery County Rule 1901 does not 

meet the requirements of Pennsylvania Rule 1901(c), which states, under the 

heading “Minimum standards,” that “[b]efore any order terminating a matter 

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2 USA asserts that this Court lacks jurisdiction because Garges failed to 

timely appeal from the January 5, 2015 order terminating the case. Based on 

our review of the trial court docket and the certified record, it appears that the 

trial court never entered a formal termination order. Instead, the docket 

includes an entry, dated January 5, 2015, stating that the case was 

“[t]erminated.” See Trial Ct. Dkt. Entry No. 87. It is undisputed that both 

parties received notice of the January 5, 2015 docket entry terminating the 

case. 

In any event, in terms of this Court’s jurisdiction, an order denying a 

petition to reinstate is itself an appealable order. See generally Setty v. 

Knepp, 722 A.2d 1099 (Pa.Super. 1998); Martin v. Grandview Hosp., 541 

A.2d 361 (Pa.Super. 1988). Here, Garges timely filed her notice of appeal 

from the October 9, 2015 order on November 4, 2015. Therefore, we have 

jurisdiction over this appeal.
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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” in person, by mail, or by publication in a legal 

newspaper. Pa. R.J.A. 1901(c) (emphasis added). Garges claims that because 

Montgomery County Rule 1901 does not require a pre-termination hearing, it 

does not satisfy the requirements of Pennsylvania Rule 1901. We disagree.3

Pennsylvania Rule 1901 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. Pa. R.J.A. 1901(b)(1). Although Pennsylvania Rule 1901(c) 

states that the parties should receive “30 days’ written notice of opportunity 

for hearing” (emphasis added), our Court has interpreted this provision to 

mean that the parties must be given an opportunity to respond 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 Pennsylvania Rule 1901’s “minimal procedural 

protections”); Clinger, 620 A.2d at 531 (stating that Pennsylvania Rule 

1901(c) requires trial court to provide parties with written notice in person, by 

mail, or by publication before terminating case); Taylor v. Oxford Land, Inc., 

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3 Our review of an order denying a petition to reinstate is limited to 

determining whether the trial court abused its discretion or committed an error 

of law. Clinger v. Tilley, 620 A.2d 529, 531 (Pa.Super. 1993).
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488 A.2d 59, 62-63 (Pa.Super. 1985) (holding that “the clear language of 

[Pennsylvania] Rule 1901 requires pre-termination notice” to parties). 

Montgomery County Rule 1901 requires the trial court to give the parties 

written notice of its intent to terminate and permits the parties to respond to 

the notice by filing a statement of intention to proceed within 60 days. When a 

party files a timely statement of intention to proceed, the case will not be 

terminated. Because Montgomery County Rule 1901 allows the parties to 

respond to the pre-termination notice and thereby prevent termination, we 

conclude that it satisfies the requirements of Pennsylvania Rule 1901.4

Next, Garges asserts that the trial court abused its discretion in denying 

her petition to reinstate because she established good cause for reinstatement. 

We disagree.

In denying Garges’s petition, the trial court relied on the waiver principle 

adopted in Tucker v. Ellwood Quality Steels Company, 802 A.2d 663 

(Pa.Super. 2002). In Tucker, after more than two years of docket inactivity, 

the trial court issued a rule to show cause why the case should not be 

terminated, directing the parties to respond to the rule at “the general calling 

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4 Moreover, the notice/response procedure outlined in Montgomery 

County Rule 1901 complies with newly amended Pennsylvania Rule of Civil 

Procedure 230.2, which also requires the filing of a statement of intention to 

proceed to avoid termination of an inactive case. See Pa. R.C.P. 230.2(b), (f) 

(eff. Dec. 31, 2016). However, Rule 230.2 was suspended between April 23, 

2014, and December 9, 2015, and, thus, was not in effect when the trial court 

terminated this case or denied Garges’s petition to reinstate.
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of all inactive cases on October 26, 2001.” Id. at 664. Because neither party 

appeared on that date, the trial court entered an order terminating the case 

with prejudice. Id. On appeal, this Court held that the appellant waived his 

right to challenge the termination by failing to respond to the rule to show 

cause. Id. at 666. We explained that “it would be inequitable for Appellant to 

be able to maintain his cause of action against Appellee. Through his failure to 

attend the hearing on whether his case should be terminated for inactivity, 

Appellant has demonstrated a manifested indifference towards the continuation 

of his cause of action.” Id. (citing Shope v. Eagle, 710 A.2d 1104, 1107 n.13 

(Pa. 1998)).5

Although neither Tucker nor Shope involved a petition to reinstate, the 

trial court applied the same waiver principle in this case, finding that Garges 

waived her right to challenge the termination by failing to respond to the 

Termination Notice. Had this appeal stemmed from a termination order, the 

trial court’s rationale would have been proper. Garges, however, did not 

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5

In Shope, our Supreme Court considered whether the appellants’ 

failure to respond to a notice of termination for inactivity resulted in waiver of 

their right to challenge the termination on appeal, stating:

We note that Appellants preserved their right to challenge the 

dismissal of the action by responding to the court order directing 

them to appear for a hearing on whether the case should be 

terminated for inactivity. Had they not done so, their right to 

challenge the dismissal would have been waived . . . .

710 A.2d at 1107 n.13 (emphasis added).
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appeal from a termination order. Garges appealed from the October 9, 2015 

order denying her reinstatement petition, which she had the right to file under 

Montgomery County Rule 1901(g), notwithstanding her failure to respond to 

the Termination Notice.

A party seeking reinstatement of a terminated case must establish good 

cause to reactivate the case. Setty, 722 A.2d at 1101; see Mont. Co. L.R.J.A. 

1901(g) (stating that reinstatement may be granted only “with leave of Court, 

for cause shown”). To establish good cause, “‘[t]he aggrieved party must 

demonstrate that: (1) the petition for reactivation was timely filed; (2) a 

reasonable explanation exists for the docket inactivity; and (3) facts exist 

supporting a meritorious cause of action.’” Setty, 722 A.2d at 1101 (citation 

omitted); see Samaras, 698 A.2d at 73.6 Notably, the good-cause test does 

not consider whether the party seeking reinstatement timely responded to a 

pre-termination notice. For this reason, the trial court’s reliance on Tucker

and Shope was misplaced.7

At the hearing on her reinstatement petition, Garges’s only explanation 

for the lengthy period of docket inactivity was that she was “impoverished 

during [that] entire time, due in significant part to [USA’s] actions.” N.T., 

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6 Garges’s reinstatement petition, filed 15 days after the termination, 

was timely.

7 We are not bound by the trial court’s rationale and may affirm on any 

basis. In re Jacobs, 15 A.3d 509, 509 n.1 (Pa.Super. 2001).
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10/7/15, at 9; see id. at 11. She further stated that any delay “was entirely 

due to [USA’s] deliberate attempts to frustrate [her] right of appeal” and that 

she “was not required during that period of time to do anything.” Id. at 8. In 

response, the trial court explained that Garges could have taken affirmative 

steps to continue the litigation:

[Y]ou’re ignoring the fact that there are available, to both 

parties, ways to move a case along. There are innumerable 

mechanisms where either party can move a case along.

In other words, if a plaintiff is dilatory, you can file a motion 

to compel them to take some action; you can ask, under our 

rules, for a 212 conference with the court, saying . . . order 

this case to trial. . . . You have the ability to do things 

yourself, or to file a motion to dismiss the case for lack of 

prosecution . . . .

Id. at 8-9; see id. at 13. However, the trial court docket shows that Garges 

filed nothing in the five years preceding termination. In fact, Garges admitted 

that USA “is the one who took the risk of not proceeding with [its] case that 

entire time” and that “the delay has worked in [her] favor.” Id. at 9-10.8

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8

“The law is well settled that it is [the] plaintiff, not [the] defendant, 

who bears the risk of failing to act within a reasonable time to move a case 

along.” Pilon v. Bally Eng’g Structures, 645 A.2d 282, 285 (Pa.Super. 

1994). Given that USA deliberately abandoned its cause of action against 

Garges, which sought more than $11,000 in damages, it is somewhat difficult 

to understand why Garges would want to reactivate USA’s claim. It appears 

that she wants the case re-opened in order to challenge the dismissal of her 

counterclaim.
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Based on the evidence of record, we conclude that Garges failed to offer 

a reasonable explanation for the docket inactivity. As the trial court aptly 

observed:

Had [Garges] pursued dismissal of [USA’s] action through 

non pros, her assertion that the Counterclaim was wrongly 

dismissed would have been ripe for review. Instead, she 

opted to delay more than five years until the Prothonotary 

was compelled to commence termination proceedings, and 

then seek discretionary leave of Court to pursue a claim 

long-since abandoned.

Trial Ct. Op. at 5-6. Accordingly, because Garges failed to establish good 

cause for reinstatement, we affirm the denial of her petition to reinstate.9

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2016

____________________________________________

9

In light of this disposition, we need not reach Garges’s remaining claims 

relating to the trial court’s rulings in the pre-termination litigation.