Edwards, K. v. Allstate Insurance Comp. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KRISTINA EDWARDS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALLSTATE INSURANCE COMPANY : No. 2174 EDA 2020
Appeal from the Order Entered October 9, 2020
In the Court of Common Pleas of Delaware County
Civil Division at No(s): No. CV-2005-006279
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 10, 2022
This appeal presents us with a request by Kristina Edwards to reverse
the trial court and reinstate her case against Allstate Insurance Company in
which she is seeking underinsured motorist (“UIM”) coverage emanating from
a car accident that occurred shortly after the turn of the century. We affirm.
On May 21, 2000, Kristina Edwards was a passenger in a car, which was
insured by Allstate through its insured driver. The car collided with another
vehicle, and Edwards sustained injuries as a result of the accident. Edwards
exhausted the liability coverage available under the other vehicle’s policy.
Consequently, Edwards sought UIM coverage from Allstate.
Pursuant to the policy, the parties pursued arbitration, and each party
named an arbitrator. However, when they could not agree on a third neutral
arbitrator, Allstate filed a petition for the appointment of an arbitrator in the
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trial court. On December 2, 2005, the trial court entered an order granting
the request and appointing Michael Raith, Esq., as neutral arbitrator. For over
thirteen years after Attorney Raith’s appointment, there was no activity on the
trial court docket. Then, on July 22, 2019, Edwards filed a petition to appoint
a new/substitute third/neutral arbitrator.1 On August 12, 2019, Allstate filed
preliminary objections in the nature of a demurrer. Edwards filed an answer
to the preliminary objections on September 4, 2019.
Initially, the trial court granted Edwards’s petition on November 25,
2019. Allstate moved for reconsideration, and Edwards filed an answer. The
trial court granted the request for reconsideration and held an evidentiary
hearing on September 23, 2020. On October 9, 2020, the trial court dismissed
Edwards’s case with prejudice and denied Edwards’s petition for appointment
of a third arbitrator. Edwards filed a motion for reconsideration, which the trial
court denied.
This appeal followed, in which Edwards presents claims that the trial
court improperly granted Allstate’s preliminary objections. We review a trial
court order granting preliminary objections for an error of law and apply the
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1The trial court explained that “Attorney Raith recused himself as the neutral
arbitrator in this case” because “a bad faith claim was made by [Edwards’s]
counsel in the United States District Court for the Eastern District of
Pennsylvania in which Michael Raith, Esquire, the neutral arbitrator, was
named as one of several defendants.”
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same standard as the trial court. Estate of O’Connell ex rel. O’Connell v.
Progressive Ins. Co., 79 A.3d 1134, 1137 (Pa. Super. 2013).
We first address Edwards’s claim that the trial court improperly
considered Allstate’s preliminary objections. Edwards argues that Allstate
presented affirmative defenses in its preliminary objections in violation of the
Rules of Civil Procedure.
The propriety of Allstate raising the defense of laches to Edwards’s
petition is subject to two separate procedural concerns. First, we must address
whether a preliminary objection was the proper procedural vehicle for Allstate
to file in response to Edwards’s petition. Pa.R.C.P. 1028 governs preliminary
objections and instructs that preliminary objections may be filed by any party
to any pleading. See Pa.R.C.P. 1028(a). Rule 1028 provides that preliminary
objections may be filed against any pleading. Petitions, such as the petition to
appoint a new arbitrator at issue here, are not included in the definition of
pleadings. See Pa.R.C.P. 1017(a). However, a court does not necessarily err
if it sustains a preliminary objection to a petition; a preliminary objection is
functionally equivalent to an answer to a petition. See Cid v. Erie Ins. Group,
63 A.3d 787 (Pa. Super. 2013) (treating a preliminary objection as the
functional equivalent of an answer to a petition to compel arbitration).
Therefore, Allstate’s titling its filing a preliminary objection is not controlling
here.
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We therefore turn to Edwards’s claim that the defense of laches cannot
be raised by preliminary objection. Edwards correctly notes that affirmative
defenses are generally not to be pled in a preliminary objection. See
Richmond v. McHale, 35 A.3d 779, 782 (Pa. Super. 2012). However, as
noted above, the titling of Allstate’s filing is not controlling here. Viewed in
context, Allstate’s filing was functionally equivalent to an answer to Edward’s
petition. The trial court then held a hearing on the issue of laches, and
ultimately found that Allstate had established its right to relief. Under these
circumstances, there is no reason to treat Allstate’s filing as a preliminary
objection, and Edward’s challenge on this basis is due no relief.
We next address Edwards’s second issue on appeal, wherein he
challenges the trial court’s determination that the doctrine of laches applied
to dismiss this matter. The doctrine of laches acts as an equitable bar to relief
when a claim has become stale due to the passage of time. See Fulton v.
Fulton, 106 A.3d 127, 131 (Pa. Super. 2014). Pursuant to the doctrine of
laches, trial courts are empowered to enter a judgment of non pros where a
plaintiff has unduly delayed in prosecuting an action after it has been
instituted. See Jacobs v. Halloran, 710 A.2d 1098, 1101 (Pa. 1998).
Here, the trial court stated in its written opinion, “this court submits that
Allstate would be entitled to non pros based upon the extraordinary
circumstances of this case.” Trial Court Opinion, 2/9/21, at 7 n.6. We agree
with the trial court’s assessment.
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It is undisputed that a court may invoke its inherent power to dismiss a
case for lack of activity on the docket. See Penn Piping, Inc. v. Insurance
Co. of North America, 603 A.2d 1006, 1008 (Pa. 1992).2 An analysis for a
judgment of non pros is the same whether the motion is brought by the
defendant or whether it is brought sua sponte by the court. Mudd v. Nosker
Lumber, Inc., 662 A.2d 660, 662 (Pa. Super. 1995) (citation omitted). A trial
court may enter a judgment of non pros under the following circumstances:
(1) a party has shown lack of due diligence by failing to proceed with
reasonable promptitude, (2) there is no compelling reason for the delay, and
(3) the delay has caused actual prejudice to the adverse party. See Jacobs,
710 A.2d at 1103 (citing James Brothers Co. v. Union Banking and Trust
Co. of DuBois, 247 A.2d 587, 589 (Pa. 1968)). Our Supreme Court has
approved the definition of prejudice as “any substantial diminution of a party’s
ability to properly present its case at trial.” Id. This determination is to be
made by the trial court, whose decision will not be disturbed absent an abuse
of discretion. Id.____________________________________________
2 We further note that under Pa.R.J.A. 1901, “[i]t is [a] plaintiff’s duty to move
the case forward and to monitor the docket to reflect that movement.” Golab
v. Knuth, 176 A.3d 335, 339 (Pa. Super. 2017). Rule 1901 reflects the
general policy of this Commonwealth to promote the prompt completion of
litigation. See id. at 340. In short, pursuant to Rule 1901, “[w]here a matter
has been inactive for an unreasonable period of time, the tribunal, on its own
motion, shall enter an appropriate order terminating the matter.” Pa.R.J.A.
1901(a).
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Our review of the certified record reflects that this matter stems from
Edwards’s efforts to collect UIM coverage from Allstate following an accident
in 2000. The matter was first presented to the trial court when Allstate filed a
petition to appoint a third neutral arbitrator in 2005. The trial court entered
an order appointing the arbitrator on December 2, 2005. From that date, the
trial court’s docket in this matter remained untouched for over thirteen years
and seven months. The next item on the trial court’s docket appeared on July
22, 2019, when Edwards filed a petition to appoint a new/substitute
third/neutral arbitrator. Thereafter, a flurry of filings with the trial court
ensued. As indicated, Allstate filed preliminary objections, and the trial court
ultimately held an evidentiary hearing on September 23, 2020.
As the trial court stated in its written opinion, “Allstate demonstrated a
lack of due diligence by [Edwards’s counsel] in his blatant and deliberate
failure to participate in the case or respond to counsel’s correspondence for a
period of many years.” Trial Court Opinion, 2/9/21, at 7. In addition, as the
trial court observed, Edwards’s attorney acknowledged at the hearing that
nothing happened in the case from 2011 until 2019. See id. at 4 (citing N.T.,
9/23/20, at 71-72). Further, Edwards’s counsel stated that he “had no
[specific] recollection or explanation for the delay.” Id. Therefore, we conclude
that the trial court did not abuse its discretion in determining that Edwards
failed to proceed with reasonable promptitude.
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We next consider whether there was a compelling reason for the
extensive delay. Edwards testified at the hearing that there were “stretches
of time” when she did not have contact with either of her attorneys. See N.T.,
9/23/20, at 31. Further, Edwards’s attorney, Elliott Tolan, admitted at the
hearing that in 2011 the arbitrator issued, over Edwards’s objection, a
discovery order directing Edwards to provide to Allstate with a medical
authorization, a sworn statement, and medical records. See N.T. 9/23/20, at
70-71. Attorney Tolan further testified that he willfully violated the order. See
id. at 71.
Moreover, Alan Feingold, who had represented Edwards prior to his
disbarment in 2008, testified at the hearing. Feingold expressed that he did
not provide any records to Allstate regarding the UIM claim. See N.T.,
9/23/20, at 129-130. Feingold further stated, “I wouldn’t even talk to
[Allstate’s counsel].” N.T., 9/23/20, at 130.
Matthew Yancheff, a Claim Service Leader who manages a group of
insurance adjusters for Allstate, also testified at the hearing. Yancheff
confirmed that Edwards’s UIM claim file does not contain a medical
authorization from Edwards and does not contain any medical records. This
evidence provided to the trial court reflects a purposeful system of
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noncooperation by Edwards in this matter.3 Accordingly, the trial court
concluded that there was no compelling reason for the delay, and we discern
no abuse of discretion in this determination.
Finally, for a judgment of non pros to be entered, a showing of prejudice
is required. Prejudice can be established by the “absence of a material
witness” or any other “substantial diminution of a party’s ability to properly
present its case at trial.” Jacobs, 710 A.2d at 1103 (quotation marks
omitted). Here, Edwards provided testimony at the hearing that established
her faded recollection over the years since the accident. Particularly, Edwards
could not recall the full names of various doctors who provided her treatment
following the accident. See N.T., 9/23/20, at 27-28. In addition, she could not
“remember exactly” whether there were additional doctors that provided her
treatment. Id. at 28. This testimony dovetails with the testimony offered by
Yancheff, which expressed the various challenges to determining liability for
an accident 20 years after it occurred. See id. at 90.
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3 As explained by Allstate in its reply brief in support of its preliminary
objections, Edwards’s counsel’s actions have resulted in a “situation where
there are no longer any arbitrators.” Reply Brief, Record Entry 12, at 3.
Allstate clarified that (1) Edwards’s counsel indicated that Edwards’s arbitrator
was removed and no replacement has ever been named; (2) the neutral
arbitrator recused himself because Edwards’s prior counsel sued the arbitrator
for bad faith; and (3) Allstate’s arbitrator retired during the many years that
the matter was closed due to Edwards’s failure to pursue the case. See id.
While these facts are not of record, Edwards has not made any effort to
dispute them. We do not directly rely on these allegations in reaching our
decision, but these circumstances would not surprise us given Edwards’s delay
in moving the matter forward.
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The trial court offered the following apt observation:
The car accident underlying this case occurred over 20 years ago.
To date, Allstate has not received a single medical record of
[Edwards]. [Edwards] did not cooperate or participate in any
meaningful discovery in this case. It was clear throughout the
hearing before this court that both [Edwards] and counsel had
faded recollections of the events underlying the accident. The
availability of records at this stage is unlikely.
Trial Court Opinion, 2/9/21, at 8-9. Considering these realities, we conclude
that because of the extraordinary passage of time and due to the faded
recollection of Edwards, the delay precipitated by Edwards hampered Allstate’s
ability to investigate, evaluate and defend this claim. Consequently, the trial
court did not abuse its discretion in determining that Allstate was prejudiced
in its ability to present its case.
Based on the foregoing, Edwards has failed to demonstrate on appeal
that the trial court erred in finding she failed to act with due diligence in
moving her case forward, did not have a compelling reason for the delay, and
that Allstate suffered actual prejudice. Therefore, we conclude the trial court
did not abuse its discretion in dismissing this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2022
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