Ray, A. v. Walker, G. ( 2021 )

J-A04024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANGELIQUE RAY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GARY DEJESUS-WALKER :
:
Appellee : No. 856 EDA 2020
Appeal from the Order Entered February 7, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 180403974
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: Filed: February 11, 2021
Appellant, Angelique Ray, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied her request to open
a judgment of non pros. We affirm.
The relevant facts and procedural history of this case are as follows. On
April 27, 2018, Appellant filed a complaint against Appellee alleging personal
injuries she sustained in an automobile accident. On May 8, 2019, after an
arbitration hearing, the arbitration panel awarded Appellant $25,000.00,
which was then reduced to $12,500.00 due to Appellant’s comparative
negligence. Appellee appealed the award to the Court of Common Pleas for a
trial de novo. The court called the case to trial on December 12, 2019. At
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* Retired Senior Judge assigned to the Superior Court.
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Appellant’s request, however, the court granted a one-day continuance. On
December 16, 2019, jury selection began, and the court scheduled trial to
begin the following day.
On December 17, 2019, the day set for trial, Appellant failed to appear.1
(N.T. Trial, 12/17/19, at 3). Appellant’s counsel attempted to telephone
Appellant three separate times, but all calls went directly to Appellant’s
voicemail. (Id. at 4-5). In addition, counsel sent Appellant several text
messages without any response from Appellant. (Id. at 4). The court
informed counsel that the trial would not occur if Appellant did not appear by
10:00 a.m. (Id.)
After numerous failed attempts to contact Appellant, the following
exchange took place:
THE COURT: [Appellant] knew to be back here
today.
[APPELLANT’S COUNSEL]: Yes.
THE COURT: She was told 9:30. I have 9:58
on this computer. My phone says 9:59. You have [until]
10:00. What time do you have?
[APPELLANT’S COUNSEL]: 10:00.
THE COURT: Make one more phone call. It’s
a big deal to do this, and I want to make sure.
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1 The parties agree that trial was scheduled to commence on December 17,
2019, but they disagree on what time it was scheduled to start. Appellant
claims trial was scheduled for 9:30 a.m., and Appellee claims trial was set for
9:00 a.m. This dispute is immaterial here, however, because the record
makes clear Appellant failed to appear by 10:00 a.m.
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[APPELLEE’S COUNSEL]: I would note for the record, Your
Honor, we were told to be here at 9:00.
THE COURT: Today. Either way, 9:00, 9:30,
if you’re going to be late, you call somebody. Honestly, if
[Appellant] called, I would wait all day. I mean it’s a
fair thing to do since there’s no contact whatsoever.
(Pause.)
[APPELLANT’S COUNSEL]: Straight to voicemail again.
THE COURT: So you have a motion for a non
pros?
[APPELLEE’S COUNSEL]: Yes, Your Honor.
THE COURT: Any objection? At this point,
[Appellant’s counsel], I mean there’s really nothing you can
do.
[APPELLANT’S COUNSEL]: I’ll just object for the record.
That’s it.
THE COURT: So I'm going to grant that.
Thank you. You can be excused.
(Id. at 5-6) (emphasis added). At approximately 10:00 a.m., the court
granted Appellee’s request for judgment of non pros.2 (Id.)
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2 Appellant alleges that approximately five minutes after the court granted the
non pros, Appellant entered the courtroom as the trial judge was exiting.
According to Appellant, the court asked Appellant’s counsel “[i]f that was [his]
client” and counsel responded: “Yes Your Honor.” (Appellant’s Brief at 6).
Appellant contends that the trial judge left the courtroom without any other
comments or questions. (Id. at 7). Appellant also explains her reason for
arriving late and cites to “[R-45]” in support of her position. Nevertheless,
Appellant’s reproduced record is unnumbered. Further, nothing in either the
certified record or Appellant’s reproduced record confirms whether this alleged
conversation occurred. It is Appellant’s responsibility to supply this Court with
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On December 26, 2019, Appellant filed a petition to open the judgment
of non pros. Appellee filed a response on January 15, 2020. On February 7,
2020, the court denied Appellant relief. Appellant timely filed a notice of
appeal on February 24, 2020. On March 4, 2020, the court ordered Appellant
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal, and Appellant timely complied.3
Appellant raises the following issues for our review:
Whether the trial court abused its discretion by granting
Appellee’s motion for non-pros because Appellant was one
hour late for court and the trial court never inquired as to
her excuse for the delay and whether Appellee was
prejudiced by Appellant’s action under Pa. Rules for Civil
Procedure No. 218(a).
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a complete record for purposes of appeal. Smith v. Smith, 637 A.2d 622,
623 (Pa.Super. 1993), appeal denied, 539 Pa. 680, 652 A.2d 1325 (1994).
“[A] failure by an [a]ppellant to insure that the original record certified for
appeal contains sufficient information to conduct a proper review constitutes
a waiver of the issue(s) sought to be examined.” Id. at 623-24. See also
Kessler v. Broder, 851 A.2d 944 (Pa.Super. 2004), appeal denied, 582 Pa.
676, 868 A.2d 1201 (2005) (reiterating appellant’s responsibility to produce
complete record for appeal). Thus, we cannot consider this alleged
conversation which is not found in the record.
3 On November 24, 2020, Appellee filed an application to quash this appeal,
claiming that defects in Appellant’s reproduced record hinder this Court’s
ability to address the issues. We agree that Appellant’s reproduced record
fails to comply with the relevant rules of appellate procedure. Nevertheless,
the defects with the reproduced record do not inhibit our ability to conduct
effective appellate review. Thus, we decline to quash the appeal. See
Pa.R.A.P. 2101 (stating that if defects in brief or reproduced record are
substantial, this Court may quash or dismiss appeal); Fulano v. Fanjul
Corp., 236 A.3d 1 (Pa.Super. 2020) (declining to quash appeal where defects
in reproduced record did not substantially hamper this Court’s review).
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Whether the trial court abused its discretion by denying
Appellant’s motion to open judgment of non-pros without
considering the Appellant’s excuse for delay.
(Appellant’s Brief at 8).
For purposes of disposition, we combine Appellant’s issues, as they are
related. Appellant argues the court erred in granting Appellee’s request for
judgment of non pros following Appellant’s failure to timely appear at trial.
Appellant claims the court did not allow her an opportunity to explain her
tardiness. Appellant contends the court also failed to analyze whether
Appellee suffered any prejudice as a result of Appellant’s actions.4 Appellant
concludes the court abused its discretion in entering judgment of non pros and
in denying her request to open the judgment of non pros, and this Court must
grant appropriate relief. We disagree.
The standard governing our review of a trial court’s denial of a request
to open a judgment of non pros is one of abuse of discretion. See Jacobs v.
Halloran, 551 Pa. 350, 354, 710 A.2d 1098, 1101 (1998); Stephens v.
Messick, 799 A.2d 793, 798 (Pa.Super. 2002). A trial court will be found to
have abused its discretion if, in reaching its conclusion, the law is overridden
or misapplied, or the judgment exercised is manifestly unreasonable or the
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4 Appellant further insists the court abused its discretion by allowing Appellee
to move for non pros instead of a nonsuit. Because Appellant presents this
claim for the first time on appeal, it is waived for our review. See Pa.R.A.P.
302(a) (stating: “[i]ssues not raised in [trial] court are waived and cannot be
raised for first time on appeal”).
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result of partiality, prejudice, bias or ill will. Bennett v. Home Depot, U.S.A.
Inc., 764 A.2d 605, 606 (Pa.Super. 2000).
Pennsylvania Rule of Civil Procedure 218 provides:
Rule 218. Party Not Ready When Case is Called for
Trial
(a) Where a case is called for trial, if without
satisfactory excuse a plaintiff is not ready, the court may
enter a nonsuit on motion of the defendant or a non pros
on the court’s own motion.
(b) If without satisfactory excuse a defendant is not
ready, the plaintiff may
(1) proceed to trial, or,
(2) if the case called for trial is an appeal from
compulsory arbitration, either proceed to trial or
request the court to dismiss the appeal and reinstate
the arbitration award.
(c) A party who fails to appear for trial shall be
deemed to be not ready without satisfactory
excuse.
Pa.R.C.P. 218 (emphasis added). “The mere failure to appear for trial is a
ground for the entry of a nonsuit or a judgment of non pros or the
reinstatement of a compulsory arbitration award.” Pa.R.C.P. 218(c), Note.
Our Supreme Court has explained:
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 court and, 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.
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Jung v. St. Paul’s Parish, 522 Pa. 167, 170, 560 A.2d 1356, 1358 (1989);
Pa.R.C.P. 3051 (governing relief from judgment of non pros).
When evaluating the explanation or excuse proffered by a party seeking
to open a judgment of non pros who failed to appear for trial, the court should
consider:
1) whether the failure to appear was inadvertent; 2)
whether [the party’s] failure to appear was part of a pattern
of improper behavior, misconduct or abuse; 3) whether the
court attempted to contact [the party] prior to dismissing
the [case]; 4) whether the opposing party would be
prejudiced by the delay; and 5) whether the court gave any
consideration to lesser sanctions.
Faison v. Turner, 858 A.2d 1244, 1246-47 (Pa.Super. 2004) (citation
omitted).
Instantly, Appellant failed to appear at her scheduled trial.
Consequently, she was “deemed to be not ready without satisfactory excuse.”
Pa.R.C.P. 218(c), Note. The trial court explained its rationale for entering a
judgment of non pros, and refusing Appellant’s request to open the judgment,
as follows:
From the moment this matter was called to trial, [Appellant]
demonstrated a lack of due diligence in proceeding with the
case at hand. Her repeated unavailability and tardiness
showed a complete disregard for the [c]ourt’s time and
scheduling orders and an equal lack of consideration for the
inconvenience her delays caused the jury and the opposing
party. Despite a case management order indicating the case
was being placed in the December trial pool, [Appellant]
took a trip to Tacoma, Washington in early December.
When the court accommodated [Appellant’s] schedule and
permitted jury selection to begin on December 16, 2019,
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[Appellant] arrived several hours late. The following day,
[Appellant] simply failed to appear without explanation.
In addition, there was no compelling reason for the delay
because no reason was offered; neither [Appellant’s]
counsel nor [Appellant] offered any testimony on the record
as to the reason for lateness or made a request to lift the
Judgment of Non Pros on December 17, 2019. [Appellant’s]
Petition for Relief from Judgment of Non Pros alleged that
[she] experienced car trouble that morning and arrived
shortly after the Judgment of Non Pros had been entered.
[Appellant], however, failed to inform the [c]ourt of these
facts, failed to attempt to place these facts on record, and
failed to request an evidentiary hearing to establish these
facts. Rather, [Appellant] asks the court to accept this
version of events despite no facts in the record supporting
it. It is well-established that an appellate court cannot
consider such assertions when they were not developed in
the [trial] court. Moreover, [Appellant] offers no
explanation as to why she failed to call either the court or
her attorney and inform them of her dilemma.
Finally, [Appellee] was prejudiced by [Appellant’s] delays.
[Appellee] missed two days of work, endured the stress of
a pending trial, and incurred [t]he costs of defense counsel
waiting in the courtroom for [Appellant’s] arrival with no
estimated arrival time. Once a Judgment of Non Pros had
been entered [Appellee] would clearly have been prejudiced
if it had been lifted since the jury selected by the parties on
December 16, 2019 could not be reconstituted.
(Trial Court Opinion, filed June 17, 2020, at unnumbered pp. 5-7) (internal
citations omitted). We see no reason to disrupt the court’s denial of
Appellant’s request to open the judgment of non pros. See Jacobs, supra.Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/21
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