Mangan, J. v. Safe Auto ( 2015 )

J-A29039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES MANGAN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SAFE AUTO INSURANCE COMPANY, :
:
Appellant : No. 1991 WDA 2014
Appeal from the Judgment November 26, 2014
in the Court of Common Pleas of Allegheny County,
Civil Division, No. AR 14-002796
BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 23, 2015
Safe Auto Insurance Company (“Safe Auto”) appeals from the
Judgment entered against it, and in favor of James Mangan (“Mangan”), for
$35,000. We affirm, but modify the verdict to $25,000.
On May 29, 2014, Mangan’s vehicle was involved in a traffic accident,
and incurred significant damage. At the time of the accident, Mangan had
an existing auto insurance policy with Safe Auto, which included collision
coverage. After informing Safe Auto of the accident, Mangan took the
vehicle to the dealership from which he purchased it for repairs, which
totaled $10,100.26. Safe Auto, however, refused to pay for the repairs.
Because of this, Mangan’s repaired vehicle remained in the body shop for
over two months, until Mangan’s mother used her personal funds to pay for
the repairs.
J-A29039-15
In July 2014, Mangan filed a Complaint against Safe Auto, in the
Arbitration Division of the Allegheny County Court of Common Pleas, alleging
breach of contract, and bad faith refusal to pay Mangan’s claim. In August
2014, Safe Auto filed an Answer and New Matter, asserting that it was not
required to cover the damage to the vehicle under the terms of Mangan’s
policy with Safe Auto. Safe Auto was represented by Jeffrey C. Catanzarite,
Esquire (hereinafter “defense counsel”).
On the day the Complaint was filed, an arbitration hearing was
scheduled for September 29, 2014. Because neither defense counsel nor a
representative for Safe Auto appeared at the scheduled hearing time, the
trial court held an ex parte trial, on the same day, pursuant to its authority
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under Pa.R.C.P. 1303,1 and Allegheny County Local Rule 1303(a)(2)(1).2
After hearing argument from Mangan’s counsel, and testimony from
1
Rule 1303 provides as follows:
(a)(1) The procedure for fixing the date, time and place of hearing
before a board of arbitrators shall be prescribed by local rule,
provided that not less than thirty days’ notice in writing shall be
given to the parties or their attorneys of record.
(2) The local rule may provide that the written notice required by
subdivision (a)(1) include the following statement:
“This matter will be heard by a board of arbitrators at the time,
date and place specified but, if one or more of the parties is not
present at the hearing, the matter may be heard at the same
time and date before a judge of the court without the absent
party or parties. There is no right to a trial de novo on appeal
from a decision entered by a judge.”
(b) When the board is convened for hearing, if one or more parties is
not ready the case shall proceed and the arbitrators shall make an
award unless the court
(1) orders a continuance, or
(2) hears the matter if the notice of hearing contains the
statement required by subdivision (a)(2) and all parties present
consent.
Note: It is within the discretion of the court whether it
should hear the matter or whether the matter should
proceed in arbitration. …
Pa.R.C.P. 1303 (some notes omitted). In the instant case, Mangan’s
Complaint contained the written notice required by subsection (a)(2).
2
See PA Allegheny Cty. LR 1303(A)(2)(1) (providing that “[i]f a party fails
to appear for a scheduled arbitration hearing, the matter may, if all present
parties agree, be transferred immediately to a Judge of the Court of
Common Pleas for an ex parte hearing on the merits and entry of a non-jury
verdict, from which there shall be no right to a trial de novo on appeal.”).
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Mangan, the trial court entered a verdict against Safe Auto for $35,000,
which included over $24,000 in bad faith damages.
A few days after the entry of the verdict, Safe Auto filed a Motion for
post-trial relief. Safe Auto asserted that the trial court should vacate the
verdict, and schedule the case for a new arbitration hearing, because there
was no evidence presented that defense counsel’s failure to appear was
intentional, and defense counsel was not adequately notified concerning the
time of the arbitration hearing. Safe Auto additionally claimed that the trial
court erred by failing to (1) consider any lesser sanctions than imposing an
ex parte verdict; and (2) limit the non-jury award to $25,000, in violation of
Allegheny County Local Rule 1303(a)(2).3
By an Order dated November 25, 2014, the trial court denied Safe
Auto’s post-trial Motion, without a hearing, and directed the prothonotary to
enter a judgment in favor of Mangan for $35,000. The prothonotary entered
Judgment the next day. Safe Auto then filed a timely Notice of Appeal. The
trial court ordered Safe Auto to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, and it timely complied. The trial court
issued a Pa.R.A.P. 1925(a) Opinion.
On appeal, Safe Auto presents the following questions for our review:
1. Whether the trial court erred in entering a non-jury
verdict against [Safe Auto], where [defense] counsel
3
See PA Allegheny Cty. LR 1303(A)(2)(2) (providing that “[a] non-jury
verdict entered at a hearing held pursuant to Local Rule 1303(a)(2)(1) shall
not exceed $25,000 (exclusive of interest and costs) to any party.”).
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failed to appear at an arbitration hearing, without
considering[:] whether [defense] counsel’s failure to
appear was part of a pattern of improper behavior,
misconduct or abuse[;] whether the failure to appear was
inadvertent[;] whether any prejudice was caused by the
delay[;] and whether the [trial] court gave any
consideration to lesser sanctions, even though defense
counsel had entered an appearance, filed an Answer, and
otherwise manifested his intent to defend the case[?]
2. Whether the [trial] court [] erred in failing to vacate the
verdict and remand[] the case for a new hearing on the
basis of fundamental fairness and to promote the interest
of justice[?]
3. Whether the [trial] court [] erred in failing to vacate the
verdict and remand the case for a new hearing[,] as the
court had no basis for an award of damages under 42
Pa.C.S. § 8371[?]
Brief for Appellant at 4 (issues renumbered for ease of disposition) (some
capitalization omitted).4
This Court’s standard and scope of review in an appeal from a non-jury
verdict is as follows:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of
fact of the trial judge must be given the same weight and effect
4
Initially, we observe that at the end of its Argument section, Safe Auto
appears to raise a fourth “issue,” asserting that one of the cases that
Mangan relies upon in his appellate brief is inapplicable. See Brief for
Appellant at 15. However, Safe Auto did not set forth this claim in either its
Rule 1925(b) Concise Statement or in the Statement of Questions Presented
section of its brief. Accordingly, it is waived. See Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that “[a]ny issues not raised in
a 1925(b) statement will be deemed waived.”); see also Pa.R.A.P. 2116(a)
(stating that “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”).
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on appeal as the verdict of a jury. We consider the evidence in a
light most favorable to the verdict winner. We will reverse the
trial court only if its findings of fact are not supported by
competent evidence in the record or if its findings are premised
on an error of law.
J.J. DeLuca Co. v. Toll Naval Assocs., 56 A.3d 402, 410 (Pa. Super.
2012) (citation omitted). Additionally, “[w]e will respect a trial court’s
findings with regard to the credibility and weight of the evidence unless the
appellant can show that the court’s determination was manifestly erroneous,
arbitrary and capricious or flagrantly contrary to the evidence.” Id. (citation
omitted).
We will address Safe Auto’s first two issues together, as they are
related. In its first issue, Safe Auto argues that the trial court erred by
“fail[ing] to consider the factors enumerated by the appellate courts to be
used to determine whether an action should be dismissed for failure to
appear[.]” Brief for Appellant at 8. Safe Auto relies primarily upon the
decision of our Commonwealth Court in Williams v. Sch. Dist. of
Philadelphia, 870 A.2d 414 (Pa. Cmwlth. 2005)5 (where neither the
defendant nor its counsel attended a scheduled arbitration hearing, and the
trial court conducted an ex parte trial and entered a verdict against the
defendant, holding that the trial court erred and should have considered the
following factors: “(1) whether counsel’s failure to appear was part of a
5
Although decisions by the Commonwealth Court are not binding on this
Court, they may be persuasive. See, e.g., Citizens’ Ambulance Serv.
Inc. v. Gateway Health Plan, 806 A.2d 443, 447 n.3 (Pa. Super. 2002).
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pattern of improper behavior, misconduct or abuse; (2) whether the failure
to appear was inadvertent; (3) whether the court attempted to contact
counsel; (4) whether the opposing party would be prejudiced by the delay;
and (5) whether the court gave any consideration to lesser sanctions.”). In
the instant case, Safe Auto asserts that the trial court improperly failed to
consider the Williams factors. Brief for Appellant at 9-11. According to
Safe Auto, all of these factors weigh in favor of a determination that the trial
court’s ex parte verdict was improper, for the following reasons:
There is no evidence in the case at bar that defense counsel’s
failure to appear was intentional. … There is absolutely no
evidence that [] defense counsel’s failure to appear was part of a
pattern of improper behavior, misconduct or abuse. Defense
counsel is an upstanding member of the [Pennsylvania] Bar[,]
and has never missed an arbitration hearing date in his eighteen
[] years of practice[.] … The evidence in this case certainly
shows that the failure of defense counsel to appear for the
arbitration hearing was “inadvertent.” …[D]efense counsel
simply failed to enter the arbitration date on his calendar, due in
part to the failure of the pleadings to conform to the
Pennsylvania Rules of Civil Procedure and provide proper notice
of the arbitration hearing. There was no attempt on the part of
[Mangan’s counsel] or the [trial] court to contact [defense]
counsel. … [Mangan] would not have been prejudiced by the
delay in either allowing defense counsel to attend the
[arbitration] hearing after a simple telephone call[,] or even a
continuance of the arbitration hearing to another date. …
Lastly, there is no evidence that th[e trial] court gave any
consideration to any lesser sanctions ….
Brief for Appellant at 9-10 (paragraph breaks and some capitalization
omitted).
In its second issue, Safe Auto argues that “[t]he verdict should be
vacated on the basis of fundamental fairness and to promote the interest of
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justice[,] as the failure of [defense counsel] to appear for the [arbitration
h]earing was due to a misunderstanding and/or lack of proper notice[,] and
was in no way designed to cause [Mangan] … or [the trial c]ourt any
inconvenience.” Id. at 13; see also id. at 14 (citing Budget Laundry Co.
v. Munter, 298 A.2d 55, 58 (Pa. 1972) (stating that “[i]ndividual 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 condition of the courts.”)).
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed
Safe Auto’s claims, and determined that the court properly denied Safe
Auto’s request that the verdict be vacated, as defense counsel did not offer a
satisfactory excuse for his failure to appear. See Trial Court Opinion,
2/24/15, at 4-8; see also id. at 1 (stating that “[defense] counsel[’s] …
excuses for his failure to put the arbitration hearing date in his calendar[,]
and his failure to appear …, accepted as true, were not the sort that would
have misled any attorney, especially an experienced attorney such as
[d]efen[se] counsel.”); see also id. at 9-10 (conclusion section). Our
review discloses that the trial court’s cogent analysis is supported by the law
and the record, and we discern no abuse of discretion by the court.
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Accordingly, we affirm based the trial court’s Opinion with regard to Safe
Auto’s first two issues. See id. at 1, 4-8, 9-10.6
In its third issue, Safe Auto urges us to vacate the non-jury verdict
and remand for a new trial, arguing that the trial court had no basis for
awarding bad faith damages. See Brief for Appellant at 12-13. According to
Safe Auto, there was no “clear and convincing” evidence of its bad faith. Id.
at 12 (citing Terletsky v. Prudential Prop. & Cas. Ins. Co., 649 A.2d
680, 688 (Pa. Super. 1994) (stating that “[f]or purposes of an action against
an insurer for failure to pay a claim, [bad faith] imports a dishonest purpose
and means a breach of a known duty (i.e., good faith and fair dealing),
through some motive of self-interest or ill will,” and that “bad faith must be
proven by clear and convincing evidence” (citation omitted)); see also Brief
for Appellant at 12-13 (stating that Safe Auto, “in its Answer and New Matter
to [Mangan’s] Complaint, set forth specific defenses to [Mangan’s] claims
and provided the specific reasons why the claim of [Mangan] was denied.”).
Moreover, Safe Auto argues that “the [trial c]ourt did not take any testimony
at the time of the one[-]minute non-jury trial to support any award of
punitive damages pursuant to 42 Pa.C.S.A. § 8371” (the statute governing
6
As an addendum, we observe that Safe Auto’s reliance upon Williams is
misplaced, as that case is readily distinguishable. See Williams, 870 A.2d
at 415, 417 (holding that defense counsel did offer a satisfactory excuse for
missing the arbitration hearing where she (1) was hospitalized several times
due to complications with her pregnancy; and (2) did not receive notice of
the time of the scheduled hearing).
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damages that a trial court may award where it finds that an insurer has
acted in bad faith toward the insured). Brief for Appellant at 13.
In its Opinion, the trial court addressed Safe Auto’s claim as follows:
As for the contention that the evidence doesn’t support the
verdict, especially as to bad faith damages, … the non-jury trial
held … pursuant to Pa.R.C.P. 1303 is of record in an 8-page
[t]ranscript. [Safe Auto] contends that the trial was only one[-]
minute long, apparently because the time noted in the transcript
at the start of the trial is the same noted eight pages later at the
end, 10:45 a.m. [The trial court] cannot account for the time
notations[,] but [the court] highly doubts that all present spoke
fast enough to produce eight pages in one minute.
The transcript reveals clear and convincing evidence of
[Safe Auto’s] bad faith conduct regarding [Mangan’s] insurance
claim. [Mangan] met his burden. It must be kept in mind that
the evidence was uncontroverted[,] and was found by the [trial
court], as fact finder, to be credible and compelling. [The trial
court was] impressed not only by [Mangan’s counsel’s] summary
of [Safe Auto’s] conduct[,] but also by [Mangan’s] demeanor and
statements during and after the summary. No one needs the
kind of aggravation [that Safe Auto] put [Mangan] through.
Trial Court Opinion, 2/24/15, at 9. We agree with the trial court’s rationale,
which is supported by the record, and affirm on this basis in concluding that
the trial court properly exercised its discretion in imposing bad faith
damages. See id.; see also J.J. DeLuca Co., supra (stating that this
Court must respect a trial court’s findings with regard to the credibility and
weight of the evidence).
Finally, we observe that the trial court conceded that it incorrectly
failed to limit the non-jury award to $25,000 pursuant to Local Rule
1303(a)(2). See Trial Court Opinion, 2/24/15, at 8; see also PA Allegheny
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Cty. LR 1303(A)(2)(2), supra; see also Brief for Appellant at 6 n.1. We
agree, and therefore direct that the trial court prothonotary modify the
$35,000 verdict in favor of Mangan to $25,000.7
Judgment affirmed as modified. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2015
7
Mangan does not challenge the modification of the verdict. See Brief for
Appellee at 2.
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CIVIL DIVISION
JAMES MANGAN, )
)
Plaintiff, ) No. AR-14-002796
)
)
vs. )
)
SAFE AUTO INSURANCE )
COMPANY, )
)
Defendant. )
OPINION
Defendant has appealed from the entry of judgment against it after its Motion for Post-
Trial Relief was denied. A non-jury verdict was entered against Defendant, who had failed to
appear at the scheduled arbitration hearing. On appeal, Defendant's counsel gives two excuses
for his failure to put the arbitration hearing date in his calendar and his failure to appear: (1) he
blames Plaintiff and (2) he blames the Court. We concluded that his blame was misplaced and
that the mistakes, accepted as true, were not the sort that would have misled any attorney,
especially an experienced attorney such as Defendant's counsel. We also found that the
Defendant's Motion and its 1925(b) Statement make out its counsel's own negligence, for which
the two proffered excuses are unsatisfactory.
1
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AR-14-002796
The supposedly critical error by the Court, according to Defendant's counsel, is that the
date stamp placed on his copy of the Complaint in Arbitration showed only the hearing date and
the portion indicating that the stamped date was the hearing date was missing or illegible. 1 The
error by Plaintiff consisted of some typographical errors in the mandatory Hearing Notice that
informs defendants of the significance of there being a complaint filed against them, the need to
file an Answer and their duty to appear at the scheduled Arbitration hearing. We assumed that
both those facts were correct. However, alone or together, we concluded that they did not
constitute a valid excuse for Defendant's failure to appear, as will be discussed later herein.
ISSUES RAISED ON APPEAL
Defendant filed a timely l 925(b) Statement which lists eight matters, fully quoted below:
"1. This Honorable Court erred in rendering a Non-Jury Verdict due to its failure to
consider the factors enumerated by the Superior Court in determining whether an action
should be dismissed for failure to appear for an Arbitration hearing.
"2. This Honorable Court erred in not vacating the Verdict and remanding the case
for a new Hearing due to the Notice of Hearing Date failing to comply with Allegheny
County Local Rule 1302.
"3. This Honorable Court erred in failing to vacate the Verdict and remand the case
for a new Hearing as the Court had no basis for an award of damages under 42 Pa. C.S
§8371.
1
The original in the Court papers has a complete and legible stamped date of hearing. However, we assumed the
stamp on Defendant's copy was indeed incomplete and contained only an undescribed, but clearly printed, date.
2
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2. Whether principles of fundamental fairness and the interest of justice were violated,
i.e. whether prejudice (here, to the Plaintiff) and the consideration of "lesser sanctions" are
relevant concepts in the context of Rules 1303 and 218, absent an initial finding that a
satisfactory excuse was indeed proffered.
3. Whether there was clear and convincing evidence to warrant the imposition of bad
faith damages, and if so, whether correcting the maximum judgment amount, which we now
admit is $25,000, requires that there be a new hearing or trial.
DISCUSSION
1. The hearing properly proceeded in Defendant's absence since the record and Defendant's
Motion demonstrate that its counsel had sufficient notice of the date and merely failed to note it
in his calendar.
We reviewed Defendant's Motion for Post-Trial Relief and concluded that Counsel's
excuses for his non-appearance were unsatisfactory and did not warrant granting Defendant a
new arbitration hearing. We properly concluded that it was counsel's own negligence that
caused him not to note the date. It is well settled that negligence of counsel is not a basis for
granting a new trial. To the extent that this is a matter for the Court's discretion, there has been
no abuse of that discretion.
According to Defendant's Motion, the law firm representing Defendant has a well-
established local practice. It is clearly not a new practice nor an out-of-town practice, which
might be unaware of our Local Rules and custom. Counsel states he has been in practice here for
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a long time and has never before missed a hearing. In addition, Defendant itself is not an
unsophisticated private individual encountering our legal system or the Arbitration Section for
the first time.
There were several indicators which should have alerted counsel of the hearing date:
(1) The Local Rules as well as local custom provide that the hearing date is
assigned when an arbitration complaint is filed; a simple glance at the Defendant's copy of the
cover sheet reveals a clearly stamped date; if that glance did not convey the fact that it was
probably the hearing date, a search of the easily accessible electronic docket for the "missing"
date would have disclosed the date.
(2) The electronic docket itself contains the hearing date, so any perusal of it for
other reasons would have revealed the hearing date.
(3) Defendant had filed its Answer to the complaint, an indication that it was
aware that there would be a hearing before a Board of Arbitrators at some time and was on notice
that it should find out what hearing date had been assigned;
(4) The hearing date was advertised in the Pittsburgh Legal Journal, which has
always been regarded as adequate notice to attorneys of an upcoming hearing or trial.
Despite all the above indicators, Defendant places the blame for the failure to attend on
Plaintiff's counsel and the Court, asserting, in effect, that the Local Rules, policies and customs
of the Civil Division of the Court of Common Pleas for the Fifth Judicial District improperly
ignore the factors set forth by our appellate courts.
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2. Prejudice to the Plaintiff and the "consideration of lesser sanctions" only apply if there is
first a satisfactory excuse for the Defendant's failure to appear at the Arbitration hearing.
If Defendant had had a satisfactory excuse for not appearing, we would then have to look
at the prejudice to the Plaintiff caused by requiring him to attend a new hearing or trial.
However, to give meaning to Local Rule 1303, we should not consider such prejudice if the non-
appearing party's excuse is unsatisfactory, as here. As for the "consideration of lesser
sanctions," that, too, logically can only make sense if a satisfactory excuse is first proffered. We
do not view conducting a trial after due notice to the absent party as a "sanction." Rather, it is an
inevitable consequence of non-appearance or non-responsiveness that attorneys must take care to
avoid and which even pro se litigants are subject to.
In accordance with Local Rule 1303 and local custom, the case at issue was assigned to
the Motions Court Judge sitting on the day of the arbitration hearing. Defendant's counsel
complains that neither the judge nor opposing counsel gave him the courtesy of a call to remind
him he had not appeared. This is all said to violate principles of fundamental fairness and the
interest of justice.
Defendant relies on Williams v. School District of Philadelphia, 870 A.2d 414 (Pa.
Cmwth. 2005) which was based on a case in the Pennsylvania Superior Court, Shin v. Brenan,
764 A.2d 6009 (Pa. Super. 2000). Neither Williams nor Shin nor any Rule of Court requires that
a non-appearing party be given a telephone reminder in the circumstances here. The applicable
concept is notice, not a courtesy call. Furthermore, requiring that the Court make courtesy calls,
which would then have to be made to all parties who do not show up for an arbitration hearing,
would put an undue burden on the clerks who run the Arbitration Section.
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The 1981 Explanatory Comment to Rule 1303 makes it clear that it is up to opposing
counsel to decide whether or not to ask the court to continue the matter. There is no mandate at
all for a courtesy call. Furthermore, in light of the 1998 Explanatory Comment regarding the
addition of sub-paragraph (a)(2), encouraging such an extension of professional courtesy might
very well undermine the purpose of that provision. That Comment is fully quoted below:
EXPLANATORY COMMENT-- 1998
If at a hearing before a board of arbitrators one party was ready
and the other was not, Rule of Civil Procedure 1303 previously provided
for the arbitration to proceed and an award to be made unless the court
ordered a continuance. Under this rule, some courts experienced the
problem of a party failing to appear for the arbitration hearing and then
appealing for a trial de novo before the court.
Rule 1303 has been amended to provide an additional alternative in
such a circumstance and allow a court of common pleas by local rule to
provide that the court may hear the case if the notice of hearing so advised
the parties and all parties present agree. If the court hears the matter, then
the parties will have had their trial in the court of common pleas. Relief
from the decision of the court will be by motion for post-trial relief
following the entry of a nonsuit or a decision of the court or by petition to
open a judgment of non pros. Relief from the action of the trial court will
be by appeal to an appellate court. As the new notice advises, there will
be "no right to a de nova trial on appeal from a decision entered by a
judge.
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Rule 218 governs the instance when a party is not ready when a
case is called for trial. The note to subdivision ( c) prior to its amendment
referred to the right of a plaintiff to seek relief from the entry of a nonsuit
or a judgment of non pros but omitted any reference to a defendant
seeking relief from the decision of the court following a trial. A new
paragraph has been added to the note calling attention to the defendant's
right to file a motion for post-trial relief "on the ground of a satisfactory
excuse for the defendant's failure to appear." [That new paragraph is Rule
218( c ): "A party who fails to appear for trial shall be deemed to be not
ready without satisfactory excuse."]
A post-trial motion based on an excuse for the defendant's failure
to appear must first allege facts that, if true, make out a satisfactory
excuse, so as to rebut the presumption created by 218( c ). Here the only
excuse, negligence, is not satisfactory, especially given the law involving
published notice in the Legal Journal.
3. We confess error as to the maximum amount awardable in the circumstances here; however
the imposition of the correct but lower maximum was supported by clear and convincing
evidence.
Counsel for both parties agree that our Local Rule 1303 (a)(2)(2) limits a non-jury award
to $25 ,000. We agree that this aspect of Defendant's Post-Trial Motion should have been
granted and the judgment amount should have been reduced to $25,000. However, making this
correction does not require a new trial.
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As for the contention that the evidence doesn't support the verdict, especially as to bad
faith damages, we note that the non-jury trial held before the undersigned pursuant to Pa.R.C.P.
1303 is of record in an 8-page Transcript. Defendant contends that the trial was only one minute
long, apparently because the time noted in the transcript at the start of the trial is the same noted
eight pages later at the end, 10:45 a.m. We cannot account for the time notations but we highly
doubt that all present spoke fast enough to produce eight pages in one minute.
The transcript reveals clear and convincing evidence of Defendant's bad faith conduct
regarding Plaintiffs insurance claim. The Plaintiff met his burden. It must be kept in mind that
the evidence was uncontroverted and was found by the undersigned, as fact finder, to be credible
and compelling. We were impressed not only by the summary of Defendant's conduct but also
by Plaintiffs demeanor and statements during and after the summary. No one needs the kind of
aggravation Defendant put Plaintiff through.
CONCLUSION
We did not abuse our discretion by finding that simple steps could have and should have
revealed the date of the impending arbitration hearing to defense counsel at any time, and that in
any case counsel had sufficient notice when the hearing date was published in the Legal Journal.
The ruling here does not "shock the conscience" or violate principles of justice. Rather, it was
based on well-settled principles regarding when a party's failure to appear does or does not
warrant entry of a verdict against it. Those principles should not be violated and our court's
usual practices and policies ignored simply for the purpose of benefiting one attorney or one
1because
client merely they are usually diligent.
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Neither the Court's procedures nor Plaintiffs counsel's typographical errors in the
Hearing Notice were of such magnitude that we should have ruled they were the cause of
Defendant's failure to attend the hearing. We applied Rules 1303 and 218 appropriately and this
appeal is without merit. The judgment amount should be modified to $25,000 and otherwise
affirmed. ~ ~
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