Appealing Judgment Non Pros Which Was Given Without Holding a Hearing
In Tri-State Asphalt Corporation v. Department of Transportation, 875 A.2d 1199, 1202 (Pa. Cmwlth. 2005), this Court was presented with a petition for review from an order of the Board of Claims (Board), which granted the Department of Transportation's (DOT) motions for entry of judgment non pros and discovery sanctions, cancelled a scheduled pre-trial conference and hearing, and dismissed Tri-State Asphalt's complaint against DOT.
In 1990, Tri-State Asphalt had filed an action with the Board, asserting various breaches of a construction contract.
Substantial docket activity occurred in 1990 and 1991.
For the next ten (10) years, the Board periodically requested and received status reports on the case.
On May 3, 2004, the Board issued a scheduling order requiring that all depositions and discovery be completed by September 22, 2004, and that pre-trial statements of the parties be filed by October 1, 2004.
A pre-trial conference was scheduled for October 8, 2004, and pre-trial motions were due by October 15, 2004.
Hearings were scheduled, beginning in late November, 2004.
On August 10, 2004, prior to any of the deadlines established by the scheduling order, DOT filed a motion for entry of judgment non pros.
On that same day, DOT served its first set of interrogatories upon Tri-State Asphalt.
When DOT had not received a response by September 23, 2004, one (1) day after the discovery deadline established by the scheduling order, DOT filed a motion for discovery sanctions.
On October 7, 2004, without holding a hearing, the Board granted both of the motions filed by DOT, cancelled the pre-trial conference and hearing, and dismissed the complaint with prejudice.
The Board found that DOT was prejudiced by the delay because witnesses' memories had faded, witnesses had disappeared and documents had become lost or destroyed.
In making that determination, the Board relied on an affidavit of an assistant construction engineer for DOT, which affidavit was attached to DOT's motion.
The affidavit stated that:
(1) the majority of DOT's witnesses had retired;
(2) the recollection of the witnesses who spoke to the assistant construction engineer about the case have faded with respect to the details of the work performed by Tri-State Asphalt;
(3) the assistant construction engineer attempted to gather all records relating to the case and found some contract records missing;
(4) the assistant construction engineer was told that some DOT records were destroyed in a fire.
Tri-State Asphalt petitioned for review, arguing that because the Board never held a hearing to determine whether DOT was prejudiced by the delay, there was no evidence of record.
The Court agreed, and we remanded the matter for an evidentiary hearing.
In reaching that determination, the Court wrote:
First, even if the majority of DOT's witnesses have retired, they have not disappeared. Second, [the assistant construction engineer's] statement regarding what other unnamed witnesses told him about their fading recollections is hearsay.
Therefore, the statement is insufficient to support a Board finding that witness memories have faded.
Third, [the assistant construction engineer's] statement about his attempt to gather all records relating to this case does not indicate whether he attempted to obtain the missing contract records from Tri-State or whether the missing records would prejudice DOT's ability to present its case. Finally, [the assistant construction engineer's] statement that unnamed individuals told him that a fire destroyed DOT records is hearsay. Therefore, the statement is not sufficient to support a finding that documents have been destroyed.
Based on the foregoing, the Court concluded that the Board's entry of a judgment of non pros for failure to prosecute, or inordinate delay, without holding a hearing to take admissible evidence on the matter was manifestly unreasonable.Tri-State Asphalt, 875 A.2d at 1202-03.