Randazzo, J. v. AAA Club Alliance ( 2023 )

J-S37034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOAN RANDAZZO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
AAA CLUB ALLIANCE, INC. : No. 562 EDA 2022
:
Appeal from the Order Entered October 8, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 190900817
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 10, 2023
Appellant, Joan Randazzo, appeals pro se from the October 8, 2021
order denying Appellant’s motion to open the judgment of non pros entered
in favor of AAA Club Alliance, Inc. (“Club Alliance”) on August 17, 2022.1 We
affirm.
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1 As discussed infra, Appellant originally filed pro se a complaint against AAA
Mid Atlantic – Member Relations (“AAA Member Relations”) and American
Automotive Association (“AAA”), corporate organizations that are separate
and distinct from Club Alliance. Club Alliance maintained that Appellant filed
her complaint against improper parties (AAA Member Relations and AAA) and,
instead, should have filed the suit only against Club Alliance. Initially,
Appellant disagreed with Club Alliance’s assertion, and refused to substitute
Club Alliance as the party-defendant in place of the two aforementioned
entities. See United States District Court for the Eastern District of
Pennsylvania Memorandum Opinion, 5/27/20, at 1 n.1. On August 6, 2020,
Appellant filed pro se a motion to amend the complaint to include Club Alliance
as a named party-defendant, which the trial court understood to be a praecipe
to correct the complaint’s caption to include Club Alliance as a named party.
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The trial court summarized the factual history as follows:
[Appellant and her husband, David Hatchigian, (“Hatchigian”)]
had been 49[-]year members of [AAA] and were members in good
standing on September 12, 2018[. Appellant and Hatchigian]
were senior citizens[, and Appellant] had disability tags on her
[vehicle]. On September 15, 2018, [Hatchigian] was locked out
of his [vehicle,] which was parked on his property. He called AAA
[member services] to request emergency assistance for entry into
his vehicle, but no one from AAA came to his assistance. Two
days later, [Hatchigian] contracted with another automobile
service to assist him and to perform work on the vehicle, which
would not run. He wrote AAA to complain, but no one ever
contacted him. According to AAA's membership plan, [Hatchigian]
was promised certain services [that] were not rendered. As a
result, he was deprived of the services of his automobile for three
days. [Hatchigian] alleged that the instant matter [began] in
municipal court as a breach of contract matter[. The] municipal
court found in [Club Alliance’s] favor, and [Appellant and
Hatchigian] appealed to [the trial] court[. Club Alliance
purportedly] retaliated by cancelling both [Appellant’s and
Hatchigian’s] AAA memberships. On April 19, 2018, [Appellant],
a disabled senior [citizen], called [AAA member services] to
access her benefits, but she was treated rudely on the
[tele]phone[. As a result, Appellant was] left stranded without
fuel or the ability to procure an independent towing company to
provide roadside out-of-fuel assistance[, and] was unprepared to
cope with an automotive breakdown.
Trial Court Opinion, 6/23/22, at 2-3 (extraneous capitalization omitted).
As a result of the couple’s experiences with AAA member services,
Appellant and Hatchigian filed pro se a complaint against Club Alliance on
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On August 24, 2020, the parties stipulated that Club Alliance was the proper
party-defendant in place of AAA Member Relations and AAA. On September
1, 2020, the trial court granted Appellant’s request to amend the caption. As
such, Club Alliance is the properly named appellee in this appeal, and we have
corrected the caption accordingly.
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September 5, 2019, alleging causes of actions for negligence (count 1),
wrongful termination of benefits (count 2), breach of contract (count 3),
breach of implied warranty (count 4), breach of written services warranty
(count 5), violation of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law2 (count 6), intentional representation/inducement (count 7),
and unjust enrichment (count 8). On July 6, 2020, Club Alliance filed its
answer to Appellant’s complaint, as well as new matter, asserting several
affirmative defenses.3 Appellant filed a response to Club Alliance’s new matter
on July 21, 2020. On August 3, 2020, the case was listed for trial. On August
13, 2020, Club Alliance filed a petition to transfer Appellant’s case from the
civil trial division to a compulsory arbitration program pursuant to Philadelphia
local rule 1303(f)(1)(b). On September 10, 2020, Appellant filed a response
to Club Alliance’s request for transfer to arbitration. On September 25, 2020,
the trial court granted Club Alliance’s motion and transferred the case to the
compulsory arbitration program. Appellant filed a motion for reconsideration
of the trial court order transferring the case to arbitration on October 5, 2020,
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2 73 P.S. §§ 201-1 to 201-10.
3 Upon the granting of AAA’s October 14, 2019 request, Appellant’s case was
removed to the United States District Court for the Eastern District of
Pennsylvania. On May 27, 2020, the federal district court remanded the case
to the trial court.
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which the trial court subsequently denied.4 Thereupon, the parties engaged
in discovery.
On February 10, 2021, Club Alliance filed a motion for partial judgment
on the pleadings, requesting the trial court dismiss with prejudice counts 1 - 8
of Appellant’s complaint as related to Hatchigian and bar Hatchigian from
pursuing additional pro se litigation against Club Alliance without leave of
court. Club Alliance’s Motion for Partial Judgment on the Pleadings, 2/10/21,
at ¶¶ 1-2. Club Alliance further requested the trial court dismiss with
prejudice counts 1, 2, 7, and 8 as related to Appellant. Id. at ¶¶ 3-6.
Appellant filed a response in opposition to Club Alliance’s motion on March 1,
2021. On March 15, 2021, the trial court dismissed counts 1 - 8 as related to
Hatchigian, barred Hatchigian from pursuing additional pro se litigation
against Club Alliance without leave of court, and dismissed with prejudice
counts 1, 2, 7, and 8, as related to Appellant. On April 5, 2021, Appellant
filed a motion for reconsideration of the March 15, 2021 order and, on April
12, 2021, filed a notice of appeal of said order. The trial court denied
Appellant’s motion for reconsideration on May 20, 2021. In a June 16, 2021
per curiam order, this Court quashed Appellant’s appeal on the grounds the
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4On October 16, 2020, Appellant filed a motion to certify the September 25,
2020 order transferring this case to arbitration as an appealable, interlocutory,
order pursuant to 42 Pa.C.S.A. § 702(b), as well as Pa.R.A.P. 312 and 313.
The trial court subsequently denied Appellant’s motion on October 19, 2020.
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March 15, 2021 order was not a final, appealable order. See Per Curiam
Order, 6/16/21 (878 EDA 2021).
On August 12, 2021, notice was provided to the parties that an
arbitration hearing on Appellant’s remaining causes of action (counts 3 – 6)
was scheduled on August 17, 2021. On August 17, 2021, the trial court
entered a judgment of non pros in favor of Club Alliance and against Appellant
on the ground Appellant failed to appear for the arbitration hearing scheduled
earlier that same day.
On September 2, 2021, Appellant filed a motion to open the judgment
of non pros.5 On September 27, 2021, Club Alliance filed a response in
opposition to Appellant’s motion to open the judgment of non pros. On
October 8, 2021, the trial court denied Appellant’s motion. This appeal
followed.6
Appellant raises the following issue for our review: “Did the [trial c]ourt
mis-apply the applicable standard when ruling that [Appellant’s husband]
could not present [pro se] her appearance by affidavit prior to dismissing her
case?” Appellant’s Brief at 6.
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5 Although the judgment of non pros was entered against Appellant, as the
only remaining party-plaintiff in the case, and despite Hatchigian having been
dismissed as a party-plaintiff as to all counts, both Appellant and Hatchigian
filed pro se a motion to open the judgment of non pros.
6 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant’s issue, in essence, challenges the trial court’s denial of her
motion to open the judgment of non pros on the ground the trial court abused
its discretion in finding Appellant’s failure to appear at the arbitration hearing
was not reasonably explained or could not be excused and that her husband
was not permitted to represent her at the arbitration hearing through the
introduction of an affidavit. Appellant’s Brief at 11-19.
“A trial court's decision to deny a petition to open or strike a judgment
of non pros is scrutinized on the abuse of discretion standard of appellate
review.” Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super.
2011), appeal denied, 40 A.3d 1237 (Pa. 2012). “A request to open a
judgment of non pros, like the opening of a default judgment, is in the nature
of an appeal to the equitable powers of the [trial] court[.]” Madrid, 24 A.3d
at 381. It is well-established that “in order for the judgment of non pros to
be opened, three elements must coalesce: 1) the petition to open must be
promptly filed; 2) the default or delay must be reasonably explained or
excused; and 3) facts must be shown to exist which support a cause of action.”
Id.; see also Pa.R.Civ.P. 3051(b)(1-3) (stating that, a petition for opening a
judgment of non pros “shall 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”).
When evaluating the explanation or excuse proffered by a party
who failed to appear for trial[, or arbitration,] and is seeking to
open a judgment of non pros, the [trial] court should consider:
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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
[trial] court attempted to contact counsel prior to dismissing
the case; 4) whether the opposing party would be
prejudiced by the delay; and 5) whether the [trial] court
gave any consideration to lesser sanctions.
Banks v. Cooper, 171 A.3d 798, 801 (Pa. Super. 2017) (original brackets
omitted), citing Faison v. Turner, 858 A.2d 1244 (Pa. Super. 2004).
In denying Appellant’s motion to open the judgment of non pros, the
trial court found that Appellant failed to provide a reasonable excuse or
legitimate explanation for her failure to appear at the arbitration hearing and
failed to set forth, in her motion to open the judgment, facts giving rise to a
meritorious cause of action.7 Trial Court Opinion, 6/28/22, at 8-9. The trial
court explained,
[Appellant] was [] under an obligation to provide a reasonable
explanation or excuse as to why she did not appear at the August
17[, 2022] arbitration hearing, but she failed to do so. Instead of
advancing a reasonable explanation or excuse, [Appellant]
contended in her petition to open [the judgment of non pros]
simply that her absence was a “first time excusable default in that
she is a disabled senior [citizen],” [that her conduct] was not part
of a pattern of improper behavior, and that she sent [Hatchigian]
to represent her under the authority of a “affidavit and power of
attorney for the specific purpose of in-person[,] in-court hearings
which she would be physically unable to attend.” Furthermore,
there was no evidence of record establishing that [Appellant]
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7 The trial court concluded, and the record supports, that Appellant’s motion
to open the judgment of non pros was timely filed, having been filed 16 days
after the judgment was entered. Trial Court Opinion, 6/28/22, at 8, (finding
that, the filing of a petition to open the judgment of non pros was sufficiently
prompt under Pa.R.Civ.P. 3051), citing Madrid, supra.-7-
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contacted the arbitration center to ask for a continuance or to let
it know in advance that she would be unable to attend [the
arbitration hearing]. Finally, [Appellant] was required to show the
existence of facts which support a cause of action. Again,
[Appellant] failed to advance facts in her petition to open [the
judgment of non pros] that would support a cause of action. The
petition was totally silent on any such facts.
Id. (record citations and extraneous capitalization omitted). The trial court
further noted that “former[-]plaintiff Hatchigian appeared [at the arbitration
hearing] and represented that [Appellant] did receive notice of the hearing
but did not contact the arbitration center to request a continuance when it
became apparent that she could not attend due to a physical impairment[.”]
Id. at 8 n.2 (extraneous capitalization omitted). The trial court, however, did
not permit Hatchigian to represent Appellant’s interests at the arbitration
hearing because he was not an attorney. Id.The record demonstrates that Appellant did not appear at the arbitration
hearing, despite having received notice of the hearing, and did not seek a
continuance. Motion to Open Judgment of Non Pros, 9/2/21, at ¶4; see also
N.T., 8/17/21, at 2-3, 6. As an explanation for her failure to appear at the
arbitration hearing, Appellant asserted that her “non[-]appearance was a
first-time excusable default in that she is a disabled [s]enior [citizen and her
non-appearance was not] part of a pattern of improper behavior,
misconduct[,] or abuse.” Motion to Open Judgment of Non Pros, 9/2/21, at
¶12; see also N.T., 8/17/21, at 3 (asserting, Appellant “happens to be a
disabled senior citizen[ and I (Hatchigian)] have confirmation of that and an
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affidavit that she is unable to make it here today”).8 At the arbitration hearing,
Club Alliance represented that its witnesses were present and that it was
prepared to proceed with the arbitration hearing. N.T., 8/17/21, at 5.
Moreover, the case was on-going since September 2019.
Although Appellant asserts that her non-appearance was the result of
her disability and senior citizen status, Appellant failed to demonstrate how
either of these two conditions prevented her from attending the arbitration
hearing or requesting a continuance until such time as she was able to attend.
As such, Appellant failed to provide a reasonable explanation or a legitimate
excuse for failing to appear at the arbitration hearing for a case that had been
on-going since September 2019. Moreover, we concur with the trial court that
Appellant’s motion to open the judgment of non pros fails to set forth facts
that support meritorious causes of action for Appellant’s remaining claims
(counts 3 – 6, as noted supra). Therefore, we conclude that the trial court did
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8 The notarized affidavit stated, in pertinent part,
I, [Appellant,] was operating [my] vehicle on April 1, 2019[,]
when [the vehicle] ran out of fuel [at the train station.] We were
then told that our [AAA] membership had been cancelled.
I further verify that [the] statement made in this affidavit [is] true
and correct to the best of my knowledge, information, and belief.
Motion to Open Judgment of Non Pros, 9/2/21, at Exhibit B.
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not abuse its discretion in denying Appellant’s motion to open the judgment
of non pros.9
Order affirmed.
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9 Moreover, the trial court did not abuse its discretion or err as a matter of law
in refusing to entertain Hatchigian’s request for a continuance at the August
17, 2021 hearing or to permit Hatchigian’s representation of Appellant, who
was acting pro se, by introducing Appellant’s affidavit into evidence.
“[T]he in-court representation of another - a paradigmatic function of [an]
attorney-at-law - amounts to the ‘practice of law’ in this Commonwealth.”
Kohlman v. Western Pennsylvania Hospital, 652 A.2d 849, 852
(Pa. Super. 1994), appeal denied, 663 A.2d 692 (Pa. 1995). A “power of
attorney cannot be used as a device to license laypersons to act as an
attorney-at-law.” Kohlman, 652 A.2d at 852.
Here, Hatchigian, a layperson, appeared before the trial court and attempted
to represent Appellant, who did not appear for the hearing. Hatchigian
conceded that he did not have legal authority to represent Appellant. N.T.,
8/17/21, at 7. Hatchigian was no longer a party in the case and, as a
layperson, he was not authorized to practice law. Therefore, Hatchigian could
not represent Appellant at the hearing by attempting to introduce an affidavit
into evidence. Kohlman, 652 A.2d at 852. Moreover, the affidavit which
Appellant asserts appointed Hatchigian as her “proxy” legal representative, as
summarized supra, does not, in fact, grant Hatchigian power of attorney.
Motion to Open Judgment of Non Pros, 9/2/21, at Exhibit B. Therefore, we
discern no error of law or abuse of discretion in the trial court’s prohibition
against the unauthorized practice of law by Hatchigian.
Furthermore, it is well-established that Appellant’s affidavit, as described
supra, constitutes hearsay because it is an out-of-court statement offered for
the truth of the matter asserted and, as such, is inadmissible evidence. See
Pa.R.E. 801(c) (defining hearsay); see also In re Ulrich, 109 A. 922, 924
(Pa. 1920) (stating, an affidavit is “a mere ex parte declaration made without
opportunity to cross-examine” and is “nothing more than hearsay”).
Appellant’s failure to appear at the arbitration hearing completely undermined
Club Alliance’s ability to cross-examine Appellant and the arbitrator’s ability
to assess Appellant’s credibility.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2023
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