Banks, R. v. Cooper, H. , 171 A.3d 798 ( 2017 )

J-A10019-17
2017 PA Super 304ROBERT BANKS AND YVONNE OWENS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
HEZEKIAH COOPER, AND
ALL STATE LOGISTICS, LLC, AND
ANNA KING
Appellees No. 3003 EDA 2016
Appeal from the Order Dated August 18, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): April Term, 2015, No. XX-XXXXXXX
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
OPINION BY SOLANO, J.: FILED SEPTEMBER 26, 2017
Appellants Robert Banks and Yvonne Owens appeal from the
August 18, 2016 order denying their petition to open a judgment of Non
Pros. For the reasons set forth below, we vacate the trial court’s order and
remand this case for further proceedings.
On May 8, 2015, Appellants filed suit against Hezekiah Cooper, Allstate
Logistics, LLC, and Anna King (collectively “Appellees”) for breach of contract
and fraud. According to Appellants, both Banks and Owens had loaned
Cooper money with an understanding that Cooper would repay the loans by
making each of them a 50% partner in his company, Allstate Logistics. In
addition, Owens claimed to have been in an amorous relationship with
Cooper for a number of years and alleged that her generosity toward him
had been based on the belief that she and Cooper would eventually get
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married. She further alleged that, to the contrary, Cooper was a “lothario”
who preyed upon numerous women by feigning romantic intentions in order
to obtain money from them. Appellants claimed that King “is the new
paramour of . . . Cooper, and is in conspiracy to defraud . . . Owens by
direct[ly] taking fund[s] from Allstate Logistics . . . for her own purposes and
not returning the funds provided by . . . Owens to Cooper and Allstate
Logistics.” Trial Ct. Op., 12/6/16, at 1-2.
Appellees did not file a timely answer.1 On September 15, 2015,
Banks and Owens filed a praecipe for entry of a default judgment against
Cooper individually and as an officer of Allstate. On April 12, 2016, Cooper,
pro se, filed a petition to open the default judgment, in which he averred
that he had not been properly served with the complaint. Banks and Owens
opposed Cooper’s petition. On May 18, 2016, the trial court granted
Cooper’s petition, and opened the default judgment entered against Cooper
individually and as an officer of Allstate.
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1
We note that Allstate appears to be represented by Cooper, pro se, a non-
lawyer and corporate officer. No counsel has entered an appearance for
Allstate. Cooper’s representation of Allstate is impermissible, and no further
filings by Cooper on behalf of Allstate may be accepted. See generally
David R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa.
Super. 2017) (holding, “LLC entities, generally, may not proceed in
Pennsylvania courts of common pleas except through a licensed attorney”).
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Cooper and King filed a joint answer on June 7, 2016.2 As the trial
court explained:
[In their answer, Cooper and King] denied Appellants’ allegations
of underhanded behavior, claiming the $5,000 loaned by Banks
was startup capital for Allstate Logistics, spent in furtherance of
this business venture that unfortunately failed, and that the
partnership agreement mentioned repeatedly in Appellants’
Complaint was a figment of Banks’ and Owens’ collective
imagination. In addition, Appellees stated that, though
Appellants’ attorney, Arsen Kashkashian, Esq., was aware of
Banks’ “involvement” in Cooper’s business operations,
Kashkashian and Banks “agreed that no documents should be
written up to discuss partnership[,] as it would affect [Banks] in
other [unspecified and] outstanding cases.” Finally, Appellees
maintained that Hezekiah Cooper had never borrowed any funds
from Yvonne Owens, and asserted that this lawsuit was actually
motivated by Yvonne Owens’ anger over Cooper’s decision to
end their romantic relationship, and by Banks’ displeasure with
Cooper’s cessation of their so-called “Over the Road trips.”2
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2
Appellees never explain what “Over the Road” means, but it
appears to be a trucking industry term of art, used to
describe interstate trips during which the driver lives out of
his truck and does not return to his home port for weeks on
end. See e.g., Over the Road: The Life of a Long-Haul Truck
Driver, truckingtruth.com, http://www.truckingtruth.com/over
_the_road.htm.
Trial Ct. Op., 12/6/16, at 1-2 (citations to the Answer and footnote 1
omitted; some formatting altered).
Meanwhile, on April 29, 2016, while Cooper’s petition to open the
default judgment was pending, the Honorable Idee Fox issued a “Notice of
Trial Attachment,” which informed the parties that their matter had been
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2
Allstate did not file an answer. Based on the pleadings, it appears that
Cooper controlled Allstate.
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specially listed for trial at 9:30 a.m. on July 6, 2016, in Courtroom 243 of
Philadelphia City Hall. That same day, the notice was sent to Arsen
Kashkashian, the lawyer for Banks and Owens, via the e-mail address he
had provided to the First Judicial District when he filed the complaint. Trial
Ct. Op. at 2-3.
On July 5, 2016, this case was assigned to the Honorable Ellen Ceisler
for a non-jury trial to be held the next day. A member of Judge Ceisler’s
staff e-mailed Kashkashian on July 5, 2016, at 2:53 p.m., to inform him that
the trial would begin the next day at 9:30 a.m. in Courtroom 453. Trial Ct.
Op. at 3.
On July 6, 2016, Banks, Owens, and Kashkashian did not appear for
the trial in either Courtroom 453 or Courtroom 243. Cooper and King, who
were pro se, did appear and were ready for trial.3 As a result of the failure
by Banks and Owens to appear, the trial court dismissed their case with
prejudice. Trial Ct. Op. at 3.4
On July 13, 2016, Banks and Owens filed a “Petition to Open Judgment
Pursuant to Pennsylvania Rule of Civil Procedure 206.1 et seq.” Banks and
Owens averred that although “[t]he Complex Litigation Center . . . indicated
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3
The trial court does not mention whether anyone appeared on behalf of
Allstate. As noted above, no counsel has entered an appearance for Allstate.
4
In its Pa.R.A.P. 1925(a) opinion, the trial court stated that it also dismissed
Anna King as a defendant in this matter. See Trial Ct. Op. at 3. However,
there is no such order in the certified record.
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that an e-mail and hard copies of notices were sent on May 3,[5] 2016,”
Kashkashian was unaware of the May 3 e-mail “[d]ue to a clerical error,”
and never received a hard copy of the notice. Pet. to Reopen at ¶¶ 5, 6.
Banks and Owens contended that Kashkashian was out of the office when
the July 5, 2016 e-mail was transmitted, and that the e-mail did not afford
sufficient notice of the trial date. Id. at ¶¶ 2, 7.
Cooper, King, and Allstate did not respond to the petition to open the
judgment. On August 18, 2016, the trial court denied Banks’ and Owens’
petition. In its order, the court explained:
Plaintiffs’ notice-related argument is not credible, as: 1. [the
April 29] order was sent to Plaintiffs’ counsel at the e-mail
address he had provided to the First Judicial District, and 2.
Plaintiffs’ counsel admitted that his failure to notice the April 29,
2016 e-mail was due to a “clerical error.” As such, Plaintiffs
have failed to provide a reasonable explanation for their failure
to appear at trial.
Order, 8/18/16.
On September 13, 2016, Banks and Owens filed a timely notice of
appeal. In their appeal, Banks and Owens raise the following issues, as
stated in their brief:
I. Did the Lower Court err in failing to grant Appellant[s’] Petition
to Open Judgment of Non Pros?
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5
Banks and Owens did not mention the April 29, 2016 notice in their
petition. There is a May 3, 2016 notice on the docket, but this notice is not
in the certified record and the trial court does not mention the May 3 notice
in its opinion. The contents of this notice are thus unclear. It appears that
Banks and Owens confused the April 29 notice with the May 3 notice.
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a. Was the petition timely filed?
b. Did [Appellants’] attorney provide a reasonable
explanation?
c. Did Appellant[s] present a meritorious cause of action?
II. Did the Lower Court abuse its discretion with regard to what
is equitable under the law?
Banks and Owens’ Brief at 3.6 All of Banks’ and Owens’ arguments pertain
to whether the trial court improperly denied their Petition to Open. Trial Ct.
Op. at 4.
“[A] trial court’s decision to deny a petition to open or strike a
judgment of non pros is reviewed pursuant to an abuse of discretion
standard.” Bartolomeo v. Marshall, 69 A.3d 610, 614 (Pa. Super. 2013)
(citation omitted). “This means that the trial court’s decision will be
overturned only if [it] reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.”
Womer v. Hilliker, 908 A.2d 269, 279 (Pa. 2006) (citation omitted).
Banks and Owens contend that the trial court abused its discretion in
keeping them out of court based solely on their attorney’s error. They aver
that their petition to open the judgment was promptly filed, their attorney’s
mistake was a sufficient explanation for their failure to appear for the trial,
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6
Appellees did not file a brief or participate in oral argument before this
Court.
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and their complaint stated viable causes of action for breach of contract and
fraud.
Under Rule of Civil Procedure 218, “[w]here a case is called for trial, if
without satisfactory excuse a plaintiff is not ready, the court may enter a
nonsuit on motion of the defendant or a non pros on the court’s own
motion.” Pa.R.Civ.P. 218(a). Moreover, “[a] party who fails to appear for
trial shall be deemed to be not ready without satisfactory excuse.” Id.
218(c).
“[A] judgment of non pros is subject to the filing of a petition under
Rule 3051 for relief from a judgment of non pros.” Pa.R.Civ.P. 218 Note. A
petition under Rule 3051 must allege facts showing that: “(1) the petition is
timely filed, (2) there is a reasonable explanation or legitimate excuse for
the conduct that gave rise to the entry of judgment of non pros, and (3)
there is a meritorious cause of action.” Pa.R.Civ.P. 3051(b). The trial
court’s decision in this case was based on its finding that Banks and Owens
failed to satisfy the second factor. The trial court did not address the other
two factors.
When evaluating the explanation or excuse proffered by a party who
failed to appear for trial and is seeking to open a judgment of non pros, the
court should consider:
1) whether the failure to appear was inadvertent; 2) whether
counsel’s failure to appear was part of a pattern of improper
behavior, misconduct or abuse; 3) whether the court attempted
to contact counsel prior to dismissing the [case]; 4) whether the
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opposing party would be prejudiced by the delay; and 5)
whether the court gave any consideration to lesser sanctions.
Faison v. Turner, 858 A.2d 1244, 1246-47 (Pa. Super. 2004) (citation
omitted).
This Court has been reluctant to deny a party his or her day in court
due to “simple attorney error indicating pure oversight.” Hopewell v.
Hendrie, 562 A.2d 899, 901 (Pa. Super. 1989), appeal denied, 577 A.2d
890 (Pa. 1990). In Hopewell, for example, the plaintiff’s attorney
mistakenly filed a discontinuance without the plaintiff’s knowledge. 562
A.2d at 899. Months later, the plaintiff learned of the discontinuance. Id. at
900. Within thirty days, the plaintiff filed a petition to strike it. Id. The
trial court denied that petition, but this Court held that the denial was an
abuse of discretion. Id. We explained that the plaintiff “should not be
denied her day in court simply because her attorney of record committed an
error which appellant moved to correct immediately upon discovering it.”
Id. at 901-02.
The Court in Hopewell applied the reasoning from a plurality opinion
of the Supreme Court of Pennsylvania, which also had concluded that a trial
court abused its discretion in denying a request to open a judgment of non
pros:
In . . . Jung v. St. Paul's Parish, . . . 560 A.2d 1356 (Pa.
1989) (plurality), the Court reiterated that in the context of
opening a default judgment (or a judgment of non pros), the
court must ascertain whether there are any equitable
considerations that weigh in favor of allowing the party against
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whom judgment was entered [to have] his/her day in court. The
Court also focused specifically on a situation like the present
one, where simple attorney error indicating pure oversight,
without fault of the party itself, resulted in the entry of a default
judgment. In such a situation, the Court found that equity
demanded the opening of the judgment.
Hopewell, 562 A.2d at 901 (typographical error corrected and most
citations omitted). In this context, we note that the Supreme Court of
Pennsylvania has admonished:
[I]t must always be borne in mind that lawsuits are more than
numbers or punches in computer cards. Individual cases are, of
course, of great importance to the litigants involved, and courts
must not overreach in their zeal to move cases to such an extent
as to allow for no deviations from strict and literal adherence to
policies justifiably laid down to improve the conditions of the
courts.
Budget Laundry Co. v. Munter, 298 A.2d 55, 58 (Pa. 1972) (per curiam).
In some cases, the trial court may need to conduct a hearing before
ruling on a petition to open a judgment of non pros. See Petrone v.
Whirlwind, Inc., 664 A.2d 172, 175 (Pa. Super. 1995). In Petrone, a
defendant’s attorney failed to appear for a pre-trial conference, and after the
court unsuccessfully tried twice to reach him by phone, the court dismissed
the defendant’s cross-claim for failure to prosecute. 664 A.2d at 173. The
attorney thereafter filed a timely petition to open the judgment of non pros,
claiming that “a mistake was inadvertently made in an office where this type
of mistake is not a pattern and that counsel’s attendance at a CLE course
prevented him from being informed of the need for his presence at the pre-
trial.” Id. at 175. The trial court denied the petition without examining the
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proffered explanation. Id. This Court reversed, explaining, “[b]ased on the
allegations in the Petition, [defendant]’s counsel may have a sufficient
excuse for failing to appear, or at the least to avoid a non pros. The [c]ourt
is required to conduct a hearing to determine whether the excuse of counsel
is satisfactory and whether the conduct warrants dismissal.” Id.Instantly, in their petition to reopen the judgment, Banks and Owens
averred that Kashkashian did not receive a hard copy of the first notice and
overlooked the first e-mail due to an unexplained “clerical error.” Banks and
Owens argued that the e-mail Kashkashian received the afternoon before
trial did not provide sufficient notice. Without any response from Cooper,
King, and Allstate, and without holding a hearing at which Kashkashian could
explain his error, the trial court concluded that Banks’ and Owens’
explanation was not credible. There is no indication in the record that the
trial court considered such factors as whether Kashkashian’s failure to
appear was part of a pattern of misconduct; whether efforts were made by
court administration or the trial court to contact Kashkashian immediately
before the hearing; whether Cooper, King, and Allstate would be prejudiced
by the delay; or whether lesser sanctions could be imposed. We therefore
hold that the trial court abused its discretion in denying the petition to
reopen. See Faison, 858 A.2d at 1246-47; Petrone, 664 A.2d at 175.
Accordingly, we vacate the trial court’s order denying Banks’ and
Owens’ petition, and we remand for the trial court to hold a hearing at which
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it can evaluate the credibility of the explanation proffered by counsel. We
instruct the court to consider the factors listed in Faison in evaluating
counsel’s explanation and to address all three factors in Rule 3051
(timeliness, reasonable explanation, and merit of the cause of action).7
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2017
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7
We also instruct the court to resolve whether King has been dismissed or
not.
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