Online Auctions v. Brimar Enterprises ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ONLINE AUCTIONS C/O SUSAN MILLER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BRIMAR ENTERPRISES, LLC AND MARK
SCHOLL, INDIVIDUALLY AND ACTING IN
HIS CAPACITY AS MANAGER OF BRIMAR
ENTERPRISES, LLC AND BRIAN KIGER,
INDIVIDUALLY AND ACTING IN HIS
CAPACITY AS MANAGER OF BRIMAR
ENTERPRISES, LLC,
Appellee No. 391 WDA 2014
Appeal from the Order Entered February 25, 2014
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2009-10718
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 20, 2015
Online Auctions C/O Susan Miller (“Tenant”) appeals from the order
dismissing her complaint after she failed to appear on the scheduled date of
her jury trial. After careful review, we vacate the order and remand for
additional proceedings.
The underlying facts in this matter stem from a landlord-tenant
dispute that arose in 2005. Tenant rented commercial space from Appellees,
(“Landlords”) on October 15, 2005, for a retail clothing store. According to
Tenant, she notified Landlords on November 2, 2005, of a plumbing issue in
a space above her rental property. She averred that on November 10,
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2005, the ceiling in her space began to collapse. Tenant also maintained
that she informed Landlords of a serious roof leak at the property on
December 1, 2005, and that her ceiling collapsed on December 5, 2005,
damaging her personal property stored at the rental space. In addition,
Tenant claimed that she notified Landlords on June 9, 2006, of a serious
water leak from the roof. Tenant submitted that Landlords accepted
responsibility for the damage to her property, agreed to fix the roof, and
promised to reimburse her for her losses. However, Tenant alleged that
Landlords failed to adequately correct the roof or water problems and did not
pay for the damage to her property.
Subsequently, Landlords filed a complaint to evict Tenant before the
magisterial district judge on April 15, 2008. Tenant filed a counterclaim
alleging that Landlords breached her lease, were negligent, and illegally
were trying to evict her. The magisterial district court conducted a hearing
on the matter on May 5, 2008. Landlords were not present due to a
scheduling error. The magisterial district judge entered an award for $8,010
in favor of Tenant. Landlords timely appealed and Tenant filed a complaint
with the court of common pleas alleging the same facts from her
counterclaim. The trial court dismissed Tenant’s complaint after she failed
to comply with discovery requests and orders.
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Tenant appealed to this Court. We dismissed that appeal, on January
28, 2010, after Tenant failed to file a brief.1 However, Tenant did not vacate
the rental space and Landlords filed a complaint for eviction on November
19, 2009. Tenant filed a counterclaim largely reasserting her prior claims
from the previous litigation. The magisterial district court entered an order
in favor of Landlords and denied Tenant’s counterclaims. Tenant appealed
and Landlords filed a complaint in eviction before the trial court. Tenant also
filed a complaint duplicative of her counterclaims from the November 19,
2009 litigation. The eviction complaint and Tenant’s appeal from the
magisterial district court were consolidated, and Landlords prevailed. Tenant
again appealed. This Court, however, quashed that appeal on May 16,
2012.
Tenant’s separate complaint is the subject of this appeal. Although
ostensibly arguing much of the same positions previously set forth in the
prior cases, Landlords did not raise below any arguments relative to res
judicata or collateral estoppel. Landlords did not challenge any of Tenant’s
claims as failing to state a cause of action. Ultimately, the case was placed
on the trial list and scheduled for trial on February 3, 2014. The order
scheduling the trial was mailed to Tenant on January 14, 2014, and
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1
Tenant misleadingly posits that we remanded the case to the trial court
because the trial court did not notify her of a hearing date and time. See
Tenant’s brief at 12 n.2. The case was not remanded for additional
proceedings.
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indicated that no continuances would be granted. Tenant attempted to
postpone the scheduled trial date, claiming that she did not learn of the
scheduled trial date until January 24, 2014. Accordingly, on January 27,
2014, Tenant filed with the trial court a motion for continuance seeking a
new trial date.2 The court did not rule on that motion, and maintained on
the date of trial that it had not addressed the motion because it had not
been presented in motions court or left with the court.
On the day of the scheduled trial, Tenant did not appear. However,
her mother contacted Landlords’ counsel by phone at approximately 8:15
a.m., and indicated that she was taking Tenant to the emergency room.
According to Landlords’ attorney, he advised Tenant’s mother that she
should contact the court since he did not control whether the trial was
postponed. The record reflects that the trial court received a message from
Tenant’s mother at 9:22 a.m., who indicated that she was taking her
daughter to Jefferson Hospital and provided a contact number. Tenant’s
mother also telephoned the district attorney’s office stating that she was
transporting Tenant to the Mon Valley Hospital. That office emailed the trial
judge this message. The court contacted Jefferson Memorial Hospital and
spoke with an emergency room nurse who acknowledged that Tenant had
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2
Tenant erroneously maintains in her brief that she filed this motion on
January 23, 2014. The motion was not docketed until January 27, 2014.
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arrived at that hospital. According to the court, it asked the hospital to fax
any papers indicating what treatment Tenant was seeking and left a fax
number. At this juncture, it was shortly after 11:00 a.m., and the court, at
the suggestion of Landlords’ counsel, recessed until 1:00 p.m.
When the court reconvened, it placed on the record that hospital staff
had informed the court that Tenant was being treated for a breathing
ailment and was unsure whether Tenant could participate at trial. According
to the court, the emergency room physician was unable to state that Tenant
could appear. A member of the court’s staff also spoke with Tenant’s father,
who was at the hospital, and requested that the doctors fax a diagnosis of
Tenant, and indicated that the court would wait until 1:00 p.m. to begin jury
selection. Thereafter, Tenant’s mother informed the court that Tenant would
not be attending. Importantly, the emergency room department did fax a
form that set forth that Tenant was being treated for respiratory problems
and a rash, and asked that Tenant be excused from court attendance.
Landlords moved for dismissal, maintaining that it appreciated the
doctor’s excuse, but that counsel had been involved with the case for a
substantial period and that this was “just one more opportunity for [Tenant]
to take advantage of the system and to avoid facing responsibility of either
resolving the case amicably or dismissing it or prosecuting it.” N.T., 2/3/14,
at 17. The court then granted Landlords’ oral motion to dismiss for failure
to prosecute. It added that Tenant could not resurrect the case unless she
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paid “all costs for what has occurred here today and that would include the
cost of the jury being here, whatever is outstanding to the witness that she
subpoenaed and I would as [Landlords’ counsel] to calculate the sums that
they have charged and have been taken out-of-pocket due to this
unforeseen circumstance to the Court.” Id.
Tenant filed a timely petition seeking to vacate the order and
requesting a new trial. The court denied that motion on February 25, 2014.
This timely appeal ensued. The trial court directed Tenant to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Tenant complied, and the trial court authored its Pa.R.A.P. 1925(a) decision.
The matter is now ready for our review. Tenant presents the following
issues for this Court’s consideration.
1. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s constitutional rights by dismissing Miller’s
case with prejudice despite the fact that the trial court, the trial
judge, and the defendants’ lawyer were immediately notified of
Miller’s emergency medical condition, and therefore all parties
possessed current and positive knowledge and information that
Miller had been hospitalized from approximately 8:30 AM until
1:04 PM on February 3, 2014?
2. Did the trial court commit [an] error of law and abuse [its]
discretion by denying, without any proffered or supported legal
reason or other explanation, Miller’s petition for post-trial relief,
petition to vacate order and petition for a new trial, despite the
court having express knowledge of Miller’s emergency medical
condition on February 3, 2014?
3. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s constitutional rights by entertaining and
ruling on a motion (encouraged by the trial court judge)
presented by defense counsel on February 3, 2014, without
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Miller being present, or without her having been made aware
that said motion was being presented?
4. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s constitutional rights by imposing
onerous, arduous, and deliberately disadvantageous sanctions
and penalties upon Miller who was proceeding pro se and in
forma pauperis, compelling her to expend monies the judge
knew Miller did not have, and in effect, prohibiting and
precluding Miller from protecting her constitutional rights and
interesst in the proceedings?
5. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s constitutional rights by exhibiting
prejudice, bias, and intemperance by failing to issue a ruling on
Miller’s January 23, 2014 non-hearing motion asking for a
continuance and new trail [sic] date, and further, without
conducting a hearing or affording Miller an opportunity to
respond to a motion presented by defense counsel which the
judge granted?
6. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s constitutional rights by proceeding at
trial on February 3, 2014 despite having express knowledge of
deficient service of said trail [sic] date, despite having
knowledge of Miller’s lack of opportunity to subpoena all
necessary witnesses, despite having knowledge that Miller had
not received necessary transcripts intended for her use at trial
until February 5, 2014; two (2) days post-trial, and most
importantly, despite having knowledge of Miller’s emergency
medical circumstances?
7. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s due process constitutional rights by
exhibiting obvious indifference and bias towards Miller, a pro se
litigant, throughout the proceedings?
8. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s constitutional rights by denying to Miller
the right and the the [sic] opportunity to be hear at trail [sic]
before proceeding to dismiss her case?
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9. Did the trial court commit [an] error of law, abuse of discretion
and violation of Miller’s constitutional rights by proceeding to
entertain and rule on various motions throughout the
proceedings which were presented by defense counsel despite
Miller’s averments that service of those various motions was
non-existent?
10. Did the trial court commit [an] error of law, abuse of
discretion and violation of Miller’s constitutional rights by
dismissing with prejudice Miller’s case despite having concrete
and substantiated evidence that Miller was hospitalized in the
emergency room at Jefferson Regional Medical Center near
Pittsburgh, Pennsylvania from 8:30 AM until 1:04 PM on
February 3, 2014?
Tenant’s brief at 3-6 (emphasis in original).
Although Tenant levels ten claims in her brief, she provides only one
argument, noting that her issues are closely related.3 Since Tenant
concedes that her claims are similar and combines her arguments, we do not
address each issue separately. Essentially, Tenant’s core complaint is that
the trial court erred in not continuing the case and dismissing this matter
where she notified the court and Landlords that she suffered a medical
emergency and was unable to attend the scheduled trial.
Pa.R.C.P. 218 states in pertinent part:
(a) Where a case is called for trial, if without satisfactory
excuse a plaintiff is not ready, the court may enter a
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3
We disapprove of Tenant’s repetitive and overlapping claims and her
violation of the appellate rules of procedure. See Pa.R.A.P. 2119; Pa.R.A.P.
2116.
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nonsuit on motion of the defendant or a non pros on the
court's own motion.
....
(b) A party who fails to appear for trial shall be deemed to be
not ready without satisfactory excuse.
Pa.R.C.P. 218. The comment to the rule provides that, “[t]he mere failure to
appear for trial is a ground for the entry of a nonsuit or a judgment of non
pros[.]”4 However, the illness of a party and counsel is grounds for a
continuance. Pa.R.C.P. 216 (“The following are grounds for a continuance . .
. . (2) Illness of counsel of record, a material witness, or a party.”). Where
the court requests a certificate from a physician, it must be furnished and
indicate “that such illness will probably be of sufficient duration to prevent
the ill person from participating in the trial[.]” Pa.R.C.P. 216(2).
“A ‘satisfactory excuse’ that may prevent the operation of the Rule
must be an excuse that would constitute a valid ground for granting a
continuance, such as an agreement of counsel; illness of counsel, a party, or
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4
Neither party nor the trial court indicates whether the order entered a
nonsuit or a judgment of non pros. The distinction is relevant for purposes
of res judicata as a proper grant of non pros has no res judicata implications,
in contrast to a nonsuit. In addition, the methods for challenging a nonsuit
and judgment of non pros are distinct. See Comment to Pa.R.C.P. 218 (“A
nonsuit is subject to the filing of a motion under Rule 227.1(a)(3) for post-
trial relief to remove the nonsuit and a judgment of non pros is subject to
the filing of a petition under Rule 3051 for relief from a judgment of non
pros.”).
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a material witness[.]” GOODRICH AMRAM (2d ed.) § 218:3 (footnote
omitted); Manack v. Sandlin, 812 A.2d 676, 681 (Pa.Super. 2002).
The decision to grant or deny a continuance as well as to enter either a
nonsuit or non pros are governed by an abuse of discretion standard.
Felsing v. Beining, 345 A.2d 290 (Pa.Super. 1975) (refusal to grant a
continuance considered under abuse of discretion standard); Dietzel v.
Gurman, 806 A.2d 1264 (Pa.Super. 2002) (review of motion denying
removal of compulsory nonsuit is for an abuse of discretion); Florig v.
Estate of O'Hara, 912 A.2d 318, 323 (Pa.Super. 2006) (“The standard
governing our review of a trial court decision to deny a petition to open a
judgment of non pros is one of abuse of discretion.”). As neither party’s
argument focuses on the court’s dismissal of the case by discussing the law
relative to either a nonsuit or judgment of non pros,5 but hone in on the
court’s decision not to continue the trial, we will limit our analysis to the
same.
Here, we find that Tenant presented a satisfactory excuse, precluding
dismissal. Tenant, via her mother and father, notified opposing counsel and
the court of her illness and trip to the emergency room. The illness of
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5
We are cognizant that to open a judgment of non pros, a party must show
that there is a meritorious cause of action. Pa.R.C.P. 3051. Our vacating of
the trial court’s order, however, should not be read as suggesting that all of
Tenant’s causes of action are meritorious since the questions argued relate
to failing to continue the case.
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counsel and a party is a legitimate excuse for failing to appear. After the
court requested a doctor’s excuse, Tenant faxed a signed doctor’s excuse
from the hospital. That excuse clearly asked that Tenant be excused from
attending trial on that date. The incident was not a feigned trip that did not
occur. The court’s observation that the doctor’s signature was difficult to
read does not suggest any impropriety or that a doctor did not sign the
form. Landlords’ reliance on Davidson v. Davidson, 262 Pa. 520 (1919), is
unpersuasive. That case did not involve an illness that arose on the date of
trial. Rather, the defendant was in Florida on the advice of his doctor and
elected not to return. The High Court reasoned that the denial of a
continuance in such circumstances was not improper where attendance did
not involve a serious risk to the defendant's health.
Instantly, Tenant’s respiratory problems occurred on the date of trial
and precluded her from being present, and she presented a valid doctor’s
excuse in accordance with the court’s request. This Court has opined that
dismissal, due to its severe nature, should occur only in extreme
circumstances. See Stewart v. Rossi, 681 A.2d 214 (Pa.Super. 1996). We
find this case does not meet that criteria. Since the trial court abused its
discretion in dismissing the case where Tenant’s absence was due to a
medical emergency, we vacate the order and remand for additional
proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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