ELCOMP, INC., Appellant, v. Peter J. DROLET, Appellee. (Two Cases)
Superior Court of Pennsylvania.
Filed Sept. 25, 1990.
581 A.2d 203
Argued May 8, 1990.
Because of the perceived uncertainty of the procedure to follow after entry of a judgment of non pros, as evidenced by this Court‘s en banc consideration of the issue, I would not dispose of appellant‘s direct appeal from the order dismissing the complaint on the merits, but instead would remand for completion of the fact-finding process initiated by appellant‘s “Motion for Reconsideration.”
For these reasons I respectfully dissent.
Daniel McIntyre, McKeesport, for appellee.
Before CAVANAUGH, ROWLEY, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
MONTEMURO, Judge:
In these consolidated appeals, we address the October 12, 1988 Order of the Court of Common Pleas of Allegheny County, dismissing with prejudice appellant‘s (Elcomp, Inc.) cause of action against appellee, Peter J. Drolet. We reverse.1
Elcomp filed a complaint in assumpsit on March 31, 1987, alleging that Peter Drolet owed Elcomp, a computer software company, approximately five thousand dollars ($5,000) reimbursement for monies paid as a draw against commissions. Elcomp asserted that Drolet did not earn any commissions during his five and one-half months of employment
On February 26, 1988, this matter was heard by a panel of arbitrators who entered an award in favor of Drolet.2 Elcomp filed a timely notice of appeal from the arbitration award and waived a jury trial. This matter was scheduled for a nonjury trial on October 12, 1988. Notice of the trial was published in the August 9, 1988 edition of the Pittsburgh Legal Journal, the official newspaper for the Allegheny County Court System.
On October 5, 1988, Daniel McIntyre, Esquire, counsel for Drolet, sent a letter and a copy of a motion for continuance of a non-jury trial to Dan Brookhart, Esquire, counsel for Elcomp, advising Elcomp that the motion would be presented to the trial court on Friday, October 7, 1988. The continuance was being requested because Drolet was unavailable due to out of town business. Brookhart was no longer associated with the firm representing Elcomp so Stanley Stein, Esquire, responded to this correspondence. On October 7, 1988, Stein called McIntyre to advise him that Elcomp would not oppose the request for a continuance. Unable to reach McIntyre, Stein left a message asking McIntyre to return his call but not explaining the nature of the call. Counsel exchanged calls throughout the day, but never spoke to each other or left messages explaining the purpose of the calls. McIntyre was in fact calling to advise counsel for Elcomp that he was unable to see the trial judge that day and was, therefore, abandoning his attempt to have the trial continued.
The entry of a judgment non pros will not be reversed absent a manifest abuse of discretion. “A court may properly enter a judgment of non pros when a party to a proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.” Carroll v. Kimmel, 362 Pa.Super. 432, 437, 524 A.2d 954, 956 (1987) (citations omitted).
Instantly, the record from the October 12, 1988, proceeding reveals that when no one appeared on behalf of Elcomp, the trial court entered a judgment of non pros. The
We therefore reverse and remand for further proceedings in the trial court. Jurisdiction is relinquished.
ROWLEY, J. concurs in the result.
JOHNSON, J. files a dissenting opinion joined by FORD ELLIOTT, J.
DEL SOLE, Judge, concurring.
While I concur in the result reached by the majority in this case, I write separately to point out that I believe the trial court‘s error caused the defendant not to file a post trial motion to remove the non pros.
The facts in this case, briefly stated, show that on the date when the case was called for trial, the plaintiff did not appear, and on motion of the defendant, the court dismissed the matter with prejudice.
However, since the trial court did not clearly label its order the granting of a non suit and since a good deal of confusion exists with regard to the appropriate practice in this case, I would join the result of the majority that would excuse the failure to file a post trial motion and vacate the non suit.
JOHNSON, Judge, dissenting.
I respectfully dissent. The trial court dismissed the case upon defendant Drolet‘s motion because the plaintiff failed to appear. Therefore,
At the time that the trial court entered the nonsuit under review on this appeal, there was nothing in or on the record
Had the plaintiff made a proper record, alleging or establishing a satisfactory excuse for the non-appearance, we would then be faced with deciding whether a subsequent decision to remove or not to remove the nonsuit should be upheld. The mere filing of a Motion to Reinstate Plaintiff‘s Claim and Re-Schedule Non-Jury Trial is insufficient to compel removal of a nonsuit, even where accompanied by the unsworn argument of counsel at a subsequent hearing at which no testimony is offered or taken. Accordingly, I must respectfully dissent.
On October 12, 1988, the Honorable Robert A. Doyle dismissed Elcomp, Inc. (Elcomp)‘s cause of action against Peter J. Drolet (Drolet). The case was dismissed with prejudice for failure to prosecute. The order was issued in open court and entered upon the record. Trial Transcript, October 12, 1988, page 2. The case had been advertised in the Pittsburgh Legal Journal on August 9, 1988. In that advertisement, the case had been listed for trial before Judge Doyle on October 12, 1988, in Courtroom 617, City-County Building, at 9:00 o‘clock. Id. At that time and place, Judge Doyle placed these facts on the record. He then inquired whether there was anybody in the hallway and whether the plaintiff was present. The court received answers in the negative to both questions. Id.
Rule 218 of our Pennsylvania Rules of Civil Procedure, as applicable at the time of the order in question, provided, in its entirety:
Rule 218. Party Not Ready When Case is Called for Trial
When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the court‘s own motion. If without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial.
The majority, relying on Carroll v. Kimmel, 362 Pa.Super. 432, 437, 524 A.2d 954, 956 (1987), asserts that Judge Doyle could not properly exercise his discretion in this matter without considering the possibility of prejudice to Drolet. Majority opinion, pages 205, 205. However, prejudice is not an element to be considered in the direct review of a Rule 218 dismissal. The only element which the trial court need consider prior to entry of a nonsuit on motion of the defendant, where the party is not ready when the case is called for trial, is whether the plaintiff is “without satisfactory excuse.” Rule 218, supra. A review of the record supports the action of Judge Doyle, in that the plaintiff did not answer the call, the case had been properly advertised, and the defendant moved for a nonsuit. Transcript, October 12, 1988, page 2.
I cannot join in my colleague‘s conclusion that a trial judge abuses his discretion by entering a nonsuit upon failure of the plaintiff to appear. This is precisely what is contemplated by Rule 218. And since the order may be entered in any situation where a satisfactory excuse is not tendered, a direct appeal from such an order leaves little to be reviewed. The only question on direct appeal would be: at the time the order was entered, was there any satisfactory excuse before the trial court?
Carroll v. Kimmel, supra, upon which the majority relies, is inapposite to the present appeal. In that case, we were called upon to review a judgment of non pros entered pursuant to
Nonsuits entered pursuant to Rule 218 need not, and should not, be treated as if they involved considerations identical to those found in
Where this petition practice is followed, both the trial court and any reviewing court has record evidence on the issue of whether the nonsuit should be removed. Upon such a record, it is the decision to remove, or the failure to remove, after consideration of all the evidence, which is subject to judicial review. Then, the issue on appeal is not whether the trial court should have entered the nonsuit, but whether reasons exist for opening the judgment, i.e., for removing the nonsuit.
The majority does not cite to any pleadings contained in the certified record. It appears to rely upon the Brief for Appellant and the Brief for Appellee to establish those “facts” which have “never been disputed.” In doing so, the majority accepts as “fact” matters on which the trial court has not passed.
Our supreme court has instructed us that, in resolving those issues properly before us, we may only look to the record prepared in the trial court. Alleging facts in a brief on which a trial court has not passed has been specifically condemned. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 214-15, 489 A.2d 1291, 1296 (1985); see Commonwealth v. Young, 456 Pa. 102, 114-16, 317 A.2d 258, 264 (1974) (collecting civil cases); Commonwealth v. Lowry, 385 Pa.Super. 236, 246, 560 A.2d 781, 785-86 (1989). For our court to attempt, now, to resolve issues based upon such allegations is precisely the type of review and analysis that was so roundly condemned by our Supreme Court in Reilly, supra.
Upon the certified record before us, we are limited to one, unverified motion prepared by counsel for Elcomp. The motion seeks to reinstate Elcomp‘s claim and have the de novo appeal from arbitrators rescheduled. The Motion to Reinstate is time-stamped as having been filed in the Court of Common Pleas on October 18, 1988, although attached under the same document binder as the order of the trial court denying the motion, which order is dated October 18,
We also have the unsworn argument of opposing counsel recorded at a hearing held October 18, 1988 before Judge Doyle. I do not find these items an adequate substitute for a certified evidentiary transcript from which the trial court would have been compelled to reach findings of fact and conclusions of law. Cox v. Felice Perri & Sons, 412 Pa. 415, 195 A.2d 79 (1963). The absence of a complete evidentiary record in this case illustrates why a direct appeal should not be permitted from the entry of a nonsuit on motion of the defendant pursuant to
Judge Doyle, in his Opinion Supporting Orders of Court of October 12 and 18, 1988, which Opinion was prepared and filed on November 22, 1988 pursuant to
Plaintiff appeals from Orders entered October 14 and 20, 1988. We find that Orders were not entered on these dates. If Plaintiff is alleging that the Orders were docketed on those dates, we still have nothing of record upon which to base an Opinion. We entered our Orders because the absence of Plaintiff‘s counsel was not satisfactorily explained and the explanation offered was refuted by counsel for Defendant.
Opinion, Doyle, J., filed November 22, 1988, pages 1-2. (emphasis added).
Elcomp has included a copy of a Motion for Reconsideration of Dismissal of Plaintiff‘s Claim in the Reproduced Record filed with this court on April 10, 1989. However, the original of that Motion has not been included in the original record, nor has it been referred to in the entries in the certified docket. In determining this appeal, we should disregard that document and its contents entirely. It re-
The majority seemingly would place upon our trial judges the burden of determining, at the time a case is called for trial, all of those factors which more properly are presented as part of the petition and rule practice. Suggestions of “a brief discussion with counsel present” and receiving “argument.... concerning any prejudice resulting to [defendant] from [plaintiff‘s] failure to appear” is exactly the type of extended procedure which Rule 218 is designed to avoid. The majority‘s suggestions appear to rule out the filing of any petition to vacate or open the nonsuit. But relying on brief discussions and unverified motions is the kind of procedure upon which our Supreme Court looked askance in Cox v. Felice Perri & Sons, supra.
In Cox, our Supreme Court reviewed, and reversed, an order which struck off a judgment of non pros because the reasons advanced to strike the judgment were all outside the certified record. On facts which closely parallel the situation on this appeal, the court said:
[T]he instant motion does not, nor does it purport to, attack the entry of this judgment for any defects apparent on the face of this record; on the contrary, the reasons assigned in the motion for the removal of the judgment are dehors the record of the judgment. The appropriate proceeding would have been a petition and rule to open the judgment, a proceeding which would necessarily have involved the taking of testimony to establish the verity of the facts alleged for the removal of the judgment... By the procedure adopted, clearly and patently erroneous, [defendant‘s] counsel was precluded from contradicting by testimony the facts averred in the motion.... In the third place, unlike a
review of an order granting the opening of a judgment wherein the test is whether there was an abuse of discretion on the part of the court below, on our review of this order we look only to the record to ascertain the presence of any defects and such an examination of the record clearly reveals no such defects.
412 Pa. at 417-18, 195 A.2d at 80-81.
The majority does not explain why this court should accept, as facts, allegations contained in an unverified motion where the trial court has expressly rejected those allegations and denied relief. In my view, upon the record before us, Elcomp has not sustained its burden of showing that its absence from trial on October 12, 1988 was accompanied by a satisfactory excuse. I therefore cannot find any reasonable basis for removing the nonsuit.
Thus, I dissent.
Joined by FORD ELLIOTT, J.