Valley Peat & Humus v. Sunnylands, Inc. ( 1990 )

MONTEMURO, Judge:

Underlying the present appeal is a breach of contract action commenced by the appellant, Valley Peat & Humus, in November of 1984. Following the filing of the complaint, discovery ensued between the parties and the record before us contains interrogatories and deposition testimony. On November 3, 1988, appellant’s trial counsel, Attorney Rex F. Brien, filed a certificate of readiness requesting that the matter be placed on the trial list. Counsel for the appellee, Sunnylands, Inc., thereafter filed a motion for a continuance due to the unavailability of a material witness. By Order dated December 13, 1988, the trial court granted appellee’s motion for a continuance of trial, and scheduled trial for 9:30 a.m. on March 6, 1989. Due to the fact that Attorney Brien did not appear for trial, the trial court, pursuant to Pa.R.C.P. 218,¹ dismissed appellant’s cause of action against appellee with prejudice by Order dated March 7, 1989.

On March 14, 1989, appellant filed a petition for reconsideration of the entry of the non pros judgment. Although not entered in the docket, our record contains an Order signed by the trial court on March 16, 1989, which denied appellant’s reconsideration petition. Later, on May 9, 1989, the trial court again denied appellant’s reconsideration petition and entered an Opinion concerning this matter. On April 4, 1989, the appellant filed a notice of appeal from the March 7, 1989, non pros judgment. Although appellant’s reconsideration petition was viewed and disposed of by the trial court as, essentially, a petition to open the non pros judgment, the present appeal is a direct appeal from the entry of the non pros judgment.²

We first address the question of whether a direct appeal from a non pros judgment is proper, or whether a petition to open the non pros judgment must be filed and denied by the trial court prior to seeking appellate review. As an intermediate appellate court, our answer to this question must comport with the law as established by our Supreme Court. The Pennsylvania Supreme Court has accepted direct appeals from the entry of judgments of non pros, and the Court has disposed of these appeals on the merits. See James Bros. Lumber v. Union Banking & Trust Co., 432 Pa. 129, 247 A.2d 587 (1968); Manson v. First Nat’l Bank, 366 Pa. 211, 77 A.2d 399 (1951). This Court has also entertained appeals filed directly from the entry of a judgment of non pros in the trial court. See Roseman v. Hospital of the University of Pennsylvania, 377 Pa.Super. 409, 547 A.2d 751 (1988); Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987), appeal denied, 517 Pa. 613, 538 A.2d 496 (1987). Indeed, in Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982), this Court quashed an appeal wherein appellants had failed to file the appeal within thirty day of the entry of the non pros judgment but, instead, had waited to file the appeal until the trial court had denied their exceptions.³

In reviewing the entry of a non pros judgment, it is well settled law that the decision will not be reversed on appeal absent an abuse of discretion on the part of the trial court. The granting of a non pros judgment is founded upon the equitable doctrine of laches. James Bros. Lumber v. Union Banking & Trust Co., supra 432 Pa. at 133, 247 A.2d at 590. There are three general considerations which must be entertained by the trial court before a non pros judgment may properly be entered: “... a party to the 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.” Id., 432 Pa. at 132, 247 A.2d at 589 (citations omitted).

According to Supreme Court precedent, however, upon the entry of a judgment of non pros, an appeal need not be immediately pursued. A party may file a petition to open the non pros judgment in the trial court and, upon the denial of this petition, file and perfect an appeal. Such appeals have been accepted and reviewed on the merits by the Supreme Court and by this Court, even though a petition to open, was not filed or disposed of by the trial court within thirty days of the entry of the non pros judgment. In Narducci v. Mason’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988), a judgment of non pros had been entered by the Court of Common Pleas of Erie County, on October 25, 1983. A petition to open the non pros judgment was filed March 11, 1985, and granted in July of 1985. The Supreme Court reviewed the merits of the trial court’s decision to grant the petition to open and reversed. The Court recognized that, like the entry of the non pros judgment, a request to open a non pros judgment is based upon the equitable powers of the trial court, and such an exercise of power will not be disturbed on appeal “unless an abuse of discretion is clearly evident.” Id., 518 Pa. at 98, 541 A.2d at 325 (citations omitted). In order to open a non pros judgment, three factors must be present: (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action. Id.

We note that the second factor considered by a trial court when entertaining a petition to open a non pros judgment is akin to the following standard employed when entering the non pros judgment in the first instance: absence of a compelling reason for the delay. Further, when entering a non pros judgment or when granting a petition to open a non pros judgment, the trial court is bound to consider the prejudice to the adverse party. Prejudice to the adverse party is a requisite for the entry of a non pros judgment. In considering a petition to open, undue prejudice to the adverse party will prevent the granting of the petition to open:

Seeing that the request to open a judgment of non pros is directed to the conscience of the court, the court is required to balance the equities and to deny the petition even where the elements coalesce if the granting of relief would cause undue hardship or prejudice to the opponents.

Id., 518 Pa. at 98, 541 A.2d at 825 (citations omitted) (emphasis in original).

In summary, we find the present appeal properly perfected. We recognize that the equitable considerations employed when considering the entry of a judgment of non pros as compared to a petition to open a non pros judgment are substantially the same. Although we are of the opinion that the better course for counsel to follow would be to file a petition to open, because it gives the trial court the first opportunity to open its judgment and at the same time provides a more complete record for appeal purposes, we recognize that counsel has a choice. If there is to be a change in this area of the law, this change must come from our Supreme Court.

We note the dissent’s view that the general three prong test requiring: (1) a want of due diligence; (2) no compelling reason for the delay, and (3) some prejudice, has no application to non pros judgments entered under Rule 218. Although the position has superficial appeal, we do not agree. It is most important to remember that underlying the entry of a judgment of non pros, whether pursuant to Rule 218 or otherwise, is equity. The entry of a non pros judgment depends upon a proper balancing of equitable considerations in the discretion of the trial court. Although, like the dissent, we favor a procedure wherein a petition to open a non pros judgment would be filed and ruled upon by the trial court prior to the filing of an appeal, this does not assist us in reviewing the case sub judice. We must review the exercise of the trial court’s discretion on March 7, 1989. We must assure that the trial court did not abuse its discretion in balancing all of the surrounding facts and circumstances present at the time of the entry of the March 7, 1989, non pros judgment. The three part test is completely consistent with the language of Rule 218. The trial court must determine, as a factual matter, whether there is a want of due diligence or, in other words, whether the plaintiff is “not ready” for trial. Additionally, the court must determine whether there is a compelling reason or a “satisfactory excuse” for the delay. Finally, although Rule 218 makes no mention of prejudice to the party who has appeared for trial, prejudice has traditionally been a consideration in all non pros cases. In each type of case, and in each unique factual situation, the general considerations as espoused in the three part test for the entry of a non pros judgment will be given precise definition. While the element of prejudice may be less important in Rule 218 cases, where it has been determined that a plaintiff is not ready for trial without satisfactory excuse, we believe that prejudice must still be considered by the trial court prior to determining, as an equitable matter, that the entry of a non pros judgment is appropriate. To ignore this factor in balancing the equities in a non pros case, simply because the language of Rule 218 fails to mention prejudice explicitly, would amount to an abuse of the trial court’s discretion.

Turning to the facts of the present case, we find that the trial court abused its discretion in entering the judgment of non pros. A review of the record establishes that counsel had a compelling reason for his failure to arrive on March 6, 1989, and for his late arrival on March 7, 1989.⁴ Moreover, there is nothing in the record to show undue prejudice to the appellee, Sunnylands, Inc., except for the general reference that “witnesses may not be available at a continued trial.” Brief for Appellee at 7.

There is no dispute that on March 6,1989, the date set for trial of the instant matter, there was a snowstorm. Indeed, the trial court notes that jury selection on that day was delayed for two hours because of the snow. See Op. of Trial Court, May 9, 1989, at 1. Further, there is no dispute that appellant’s counsel, Attorney Brien, contacted the Pike County Court Administrator’s Office several times on March 6, 1989, to inform the court that despite an effort to travel on the roads, counsel was unable to make the trip from Philadelphia to Pike County. Attorney Brien requested a continuance, and this request was refused by the trial court. Id. at 2. On the following morning, Attorney Brien called the trial court and inquired as to whether he was to be in court on that day for jury selection. Learning that he was expected, Attorney Brien began the trip to Pike County. The trial court moved jury selection for appellant’s case to the end of the list of cases for trial. When Attorney Brien did not arrive by 10:43 a.m., the court on its own motion dismissed the case with prejudice for failure of counsel to appear. When Attorney Brien arrived at approximately noon on March 7, 1989, he was advised that the case had been dismissed.⁵

Given the weather conditions on March 6, 1989, and Attorney Brien’s clear notice to the court that he would not be able to reach Pike County on that day, we are convinced that had the court entered a non pros judgment on March 6, Attorney Brien would have had a compelling reason for his failure to appear on that day. However, the trial court, according to its Opinion, dismissed appellant’s case for another reason. The trial court states in its Opinion that Attorney Brien “failed to comprehend, or chose to ignore” instructions that he was to report for jury selection at 9:30 a.m. on March 7, 1989. Instead, Attorney Brien called the court in the morning of March 7 at approximately 9:15 a.m., verified that he was expected to select a jury that day, and then began his journey to Pike County.

The authority of the trial court to enter a non pros judgment under Rule 218 is based upon a plaintiffs failure to “be ready” when a case is called for trial. Implicit in Rule 218 is a failure of plaintiff or his counsel to be diligent in determining when the case is to be called for trial. See Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986) (plaintiff would not be relieved from judgment of non pros where plaintiffs counsel had failed to monitor major jury list to learn when the case was scheduled to commence; it was counsel’s duty as a diligent practitioner to monitor major trial list and individual judge calendars). See also Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988) (vacation of non pros proper where both parties displayed a similar lack of due diligence in failing to monitor the trial list so as to appear when the case was called for trial). Although Attorney Brien was admittedly not present at 10:43 a.m., on March 7, 1989, when the trial court called appellant’s case, we find that under the particular circumstances of the present case, appellant was “not ready” under Rule 218 in only a technical sense. There is no question that the trial court was aware of Attorney Brien’s efforts to travel to the courthouse in Pike County on the previous day, and of Attorney Brien’s communication with the trial court that, although he was aware that appellant’s case was scheduled to commence on March 6, he was physically unable to reach the courthouse that day. Although Attorney Brien was not present when the court opened on the following day, the trial court was aware he was on his way as the court moved the case to the end of the list for jury selection. Whether Attorney Brien misunderstood or was mistaken concerning his directions to be present at the start of court on March 7, or whether he failed to follow them knowingly and, instead, phoned the court first on March 7 before travelling to Pike County, we do not know. In any event, given the general disruption of the court’s calendar due to the snowstorm on March 6, and the admitted conduct of Attorney Brien in notifying the court concerning his whereabouts on March 6 and again on March 7, 1989, we find that the trial court abused its discretion in determining that the failure of Attorney Brien to be present earlier than noon on March 7 was not “satisfactorily excused.” See Pa.R.C.P. 218. Given the general disruption in the court’s calendar, we are convinced that a compelling reason existed for the delay which occurred in this matter, thus precluding the entry of a non pros judgment.

In reaching our decision, we are mindful of the following statements of our Supreme Court:

Dilatory practices by lawyers cannot be countenanced. Nor can lawyers be permitted to disrupt the orderly process of disposition of litigation by the sheer weight of the number of cases which they are engaged to try. But it must always be borne in mind that law suits 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 or literal adherence to policies justifiably laid down to improve the condition of the courts.

Budget Laundry Company v. Munter, 450 Pa. 13, 21-22, 298 A.2d 55, 58 (1972)

The Order of March 7, 1989, dismissing appellant’s case pursuant to Pa.R.C.P. 218, is hereby reversed and vacated. This matter is remanded for further proceedings. Jurisdiction is relinquished.

Opinion by MONTEMURO, J., joined by CAVANAUGH, McEWEN, OLSZEWSKI, DEL SOLE and HUDOCK, JJ. Dissenting opinion by JOHNSON, J., joined by FORD ELLIOTT, J. Dissenting statement by ROWLEY, J.

1 . We note that Pa.R.C.P. 218 specifically provides:

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.

2 . The dissent views the issue presented in this case as "not whether the trial court could properly enter judgment of non pros on March 7, 1989 upon the plaintiffs failure to appear.” The present appeal was perfected on April 4, 1989, and was taken directly from the entry of the non pros judgment on March 7, 1989. This, then, is the proceeding and the order which shall be reviewed on appeal.

3 . The holding in Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982), was later viewed by a panel of this Court as limited to its facts. See Iole v. Western Auto Supply Company, 352 Pa.Super. 528, 532 n. 3, 508 A.2d 600, 602 n. 3 (1986).

4 . The appellant has argued that it was improper for the trial court to conduct its own investigation of this matter by acquiring affidavits from various court employees. We will not specifically consider whether the trial court’s conduct in this regard was improper, because the averments in these affidavits have no effect on the disposition of this appeal.

5 . The facts upon which we base our determination today are facts which the trial court itself accepted in its Opinion of May 8, 1989. Thus, contrary to the view of the dissent that we have "lifted” these facts from somewhere else, we are firmly convinced that it is the undisputed facts of record which support our holding in this matter. Specifically, we note the following circumstances which existed at the time the non pros judgment was entered: poor weather conditions, disruption of the court’s calendar, communications from Attorney Brien to the trial court, Attorney Brien’s arrival at noon on March 7, 1989. Significantly, while the signals may have crossed at some point, this is not a case where, having heard only silence from a party, and finding the party absent on the scheduled date and time of trial, the trial court entered a judgment of non pros pursuant to Rule 218.