Becker, H. v. M.S. Reilly, Inc.
123 A.3d 776
Pa. Super. Ct.2015Background
- Becker sued M.S. Reilly, Inc. in negligence (April 2011), alleging stormwater/drainage on Reilly’s property damaged Becker’s property.
- After pleadings and motions, trial was scheduled for December 16, 2013; on December 12 Becker filed a praecipe to discontinue under Pa.R.C.P. 229.
- Reilly filed a petition to strike the discontinuance and gave notice it would present the petition at the December 16 call; Becker did not appear at trial.
- The trial court granted Reilly’s motion to strike the discontinuance, proceeded with trial in Becker’s absence, and found for Reilly after Reilly presented expert testimony and other evidence.
- Becker filed post-trial motions arguing (1) the trial judge should have recused due to prior administrative action against Becker’s counsel in Orphans’ Court, and (2) the discontinuance was improperly stricken and the court erred by trying the case in Becker’s absence; both were denied.
- Becker appealed; the Superior Court affirmed the judgment in favor of Reilly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judge should have recused for bias due to administrative order against Becker's counsel | Judge had bias/appearance of impropriety because, as administrative judge, he issued a rule and threatened to bar counsel | The administrative order was routine, applied to several attorneys for unpaid filing fees; judge disavowed any intent to bar counsel and no personal bias existed | No abuse of discretion; recusal denied and decision not reviewable as to judge's personal belief (Goodheart standard) |
| Whether court erred in striking off Becker's discontinuance filed 4 days before trial | Rule 229(c) requires a hearing and proper motion practice; discontinuance should have been effective | Rule 229(c) requires petition and notice (not a hearing); Reilly would suffer prejudice and expense if discontinuance stood given Becker's delay and Reilly's readiness | Strike was proper under the court's discretion; no error in striking the discontinuance (court weighed equities; Pohl/Foti guidance) |
| Whether court erred by proceeding to trial in Becker's absence after striking discontinuance | Trial should not proceed without scheduled hearing or proper notice; local rules were violated | Becker had notice of trial date and notice Reilly would proceed if discontinuance was struck; plaintiff failed to appear | No error: court may try a case where a notified party fails to appear (Pa.R.C.P. 218); proceeding was permissible |
Key Cases Cited
- Goodheart v. Casey, 565 A.2d 757 (Pa. 1989) (two-part recusal test: personal bias and appearance of impropriety)
- Pohl v. NGK Metals Corp., 936 A.2d 43 (Pa. Super. 2007) (trial court may strike discontinuance to prevent unfair prejudice and repetitive litigation)
- Foti v. Askinas, 639 A.2d 807 (Pa. Super. 1994) (abuse of discretion where discontinuance granted would force defendant to repeat extensive prior effort and expense)
- Prime Media Assocs. v. Valley Forge Ins. Co., 970 A.2d 1149 (Pa. Super. 2009) (orders denying post-trial motions interlocutory; final judgment is appealable)