Atuahene, A. v. Agondanou, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AGNES ATUAHENE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CYNTHIA AGONDANOU : No. 1494 EDA 2022
Appeal from the Order Entered May 6, 2022,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): 181200818.
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 06, 2023
Agnes Atuahene appeals, pro se, from the order denying her petition to
open a judgment of non pros. For the reasons below, we affirm.
According to Ms. Atuahene’s Complaint, on December 11, 2014, her
husband was driving her car through Philadelphia when Cynthia Agondanou
rearended him. Ms. Atuahene was not in the vehicle. Mr. Atuahene filed a
personal-jury suit against Ms. Agondanou which they settled.
Four years after the car accident, on December 7, 2018, Ms. Atuahene
initiated this action to recoup the damages that Ms. Agondanou had caused to
the vehicle. Ms. Atuahene raised four counts in her Complaint: (1) Property
Loss Claim, (2) Uninsured/Underinsured Motorist Benefits, (3) Punitive
Damages, and (4) Request for Delay Damages. See Complaint at 3-5. Ms.
Agondanou never responded to the Complaint. On October 1, 2019, Ms.
Atuahene praeciped for a default judgment against her on the issues of liablity.
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The case proceeded before three arbitrators, supposedly on the question
of damages. Ms. Agondanou did not appear.
Instead of addressing damages, the arbitrators ruled against Ms.
Atuahene on the issue of liablity. They held that “the statute of limitations
ha[d] expired on this [property-damage] claim . . . .” Report and Award of
Arbitrators, 10/15/19, at 1. Regarding her claim for uninsured/underinsured
motorist benefits, the arbitrators found she “settled the underlying [benefits-
insurance] case for $15K and signed a General Release.” Id. Thus, they ruled
that there was “no viable cause of action on which [Ms. Atuahene could]
proceed.” Id.
On November 14, 2019, Ms. Atuahene appealed the arbitrators’ award
and demanded a jury trial. The COVID-19 pandemic struck and delayed this
case for a year and a half.
The trial court eventually scheduled a jury trial for June 25, 2021, but
Ms. Atuahene did not receive the scheduling order. Thus, she failed to appear
on June 25, 2021, and the trial court entered a judgment of non pros against
her. She petitioned to open the judgment of non pros, which the trial court
granted on December 14, 2021.
Two days later, the trial court entered an order rescheduling the jury
trial to commence on March 7, 2022. The order also set the date to impanel
the jury as March 4, 2022.
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When March 4th arrived, Ms. Atuahene did not appear for jury selection,1
and the trial court entered another judgment of non pros, “pursuant to Rule
[of Civil Procedure] 218.” March 4, 2022 Order. Ten days later, Ms. Atuahene
petitioned to open the judgment of non pros. She alleged the United States
Postal Service did not deliver the December 16, 2021 Order rescheduling jury
selection and the trial. See Petition to Open Judgment of Non Pros at 1.
The trial court denied the petition to open. This timely appeal followed.
Ms. Atuahene raises two appellate issues:
1. Whether the trial court’s entry of judgment of non
pros under Pa.R.C.P. 218 for [Ms. Atuahene’s] failure
to appear for jury selection was entered without
authority under Rule 218 and subsequent denial of
Petition to Open Judgment of Non Pros constitute
gross error of law and manifest abuse of discretion
and should therefore be reversed?
2. Whether the trial court’s order [denying the Petition
to Open] was entered without due process and First
Amendment Right to a fair hearing and deprived [Ms.
Atuahene] of property rights under Article I, § 1 of the
Pennsylvania Constitution?
Atuahene’s Brief at 2. Ms. Atuahene’s first issue is a compound question. We
address its two sub-issues separately and then discuss her second issue.
1. Entry of Judgment of Non Pros under Rule 218
Ms. Atuahene’s first sub-issue asks whether, under Pa.R.C.P. 218, the
trial court had authority to enter the judgment of non pros at the time of jury
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1 There is no indication of the record as to whether Ms. Agondanou appeared
for jury selection. She did not participate in this appeal.
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selection. She argues the trial court misapplied Rule 218, because it imposed
the judgment of non pros prematurely – i.e., at jury selection (March 4, 2022),
rather than at the time of trial (March 7, 2022). See id. at 8-15.
Before reaching the merits of this claim, we must consider whether Ms.
Atuahene waived it by violating the Pennsylvania Rules of Appellate Procedure.
“The issue of waiver presents a question of law, and, as such, our standard of
review is de novo, and our scope of review is plenary.” Getting v. Mark
Sales & Leasing, Inc., 274 A.3d 1251, 1257 (Pa. Super. 2022), reargument
denied (June 14, 2022).
The trial court ordered Ms. Atuahene to file a Statement of Errors
Complained of on Appeal, under Pa.R.A.P. 1925. In its order, the trial court
“cautioned that any issues not properly included in the statement timely filed
and severed pursuant to Pa.R.A.P. 1925(b) shall be deemed waived.” June 9,
2022 Order at 1.
Rule 1925(b) is very clear and very strict. Where, as here, a trial court
has ordered an appellant to file a 1925(b) Statement, “Issues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).
To “preserve their claims for appellate review, [a]ppellants must comply
whenever the trial court orders them to file a Statement of [Errors]
Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a
1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998). Therefore, this “Court has held that strict
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application of the bright-line rule in Lord necessitates strict interpretation of
the rules regarding notice of Rule 1925(b) orders.” Greater Erie Industry
Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 226 (Pa.
Super. 2014) (en banc) (emphasis removed).
Here, the trial court followed Greater Erie Industry Development
Corp. It provided Ms. Atuahene with sufficient notice of Pa.R.A.P. 1925(b)
and its waiver provisions in the order directing Ms. Atuahene to filed a 1925(b)
Statement. Thus, Rule 1925(b) compels us to limit our review strictly to those
issues that she raised and thereby preserved in her Statement of Error
Complained of on Appeal.
The issues that Ms. Atuahene preserved therein are as follows:
1. The reasons for the court’s rulings, specifically the
court’s denial of [Ms. Atuahene’s] Petition to Open
Judgment of Non Pros, are vague and undiscernible
from the record; the court has given absolutely no
indication of the reason for the said denial of [the]
Petition to Open Judgment of Non Pros, so it’s
absolutely difficult, if not impossible, to file instant
Concise Statement of Errors Complained of on Appeal.
2. . . . the court, in entering the order denying [Ms.
Atuahene’s] Petition to Open Judgment of Non Pros
violated the mandate of Pa.R.C.P. 237.3, First
Amendment Right to fair hearing and/or trial, due
process of law.
3. . . . the court, in denying [Ms. Atuahene’s] Petition to
Open the Judgment of Non Pros without issuing a Rule
to Show Cause why the said petition should be denied
or granted clearly violated [her] right to constitutional
due process of law, in that [Ms. Atuahene’s] right to
notice of the deprivation of property and property
rights grounded in Article I, § 1 of the Pennsylvania
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Constitution and opportunity to defend and protect
that right was violated.
4. . . . the court, in denying [Ms. Atuahene’s] Petition to
Open the Judgment of Non Pros without issuing a Rule
to Show Cause why the said petition should be denied
or not denied or granted clearly violated [her] right to
effective access to the court, specifically denial of
notice and opportunity to a fair hearing or trial
guaranteed under the First Amendment to deny [her]
property rights.
5. The court’s order of April 28, 2022, without due
process and First Amendment right to fair hearing or
trial, deprived [Ms. Atuahene] of property rights under
Article I, § 1 of the Pennsylvania Constitution.
6. The court’s order of April 28, 2022 clearly was entered
in error of law and/or manifest abuse of discretion.
1925(b) Statement at 1-2 (some capitalization omitted). Ms. Atuahene’s first
sub-issue – i.e., whether “the trial court’s entry of judgment of non pros under
Pa.R.C.P. 218 for [her] failure to appear for jury selection was entered without
authority under Rule 218 . . . .” – is absent for the above list. Atuahene’s
Brief at 2. Thus, she did not comply with Rule 1925(b), despite the trial court’s
warning that “any issue not properly included in the statement shall be
deemed waived.” June 9, 2022 Order at 1.
Moreover, Ms. Atuahene’s indication in her 1925(b) Statement that the
“reasons for the court’s rulings, specifically the court’s denial of [Ms.
Atuahene’s] Petition to Open Judgment of Non Pros, are vague and
undiscernible from the record” does not preserve this claim for our review. In
its order entering the judgment of non pros, the trial court identified Rule 218
as the basis for its authority. See March 4, 2022 Order. Ms. Atuahene knew
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or should have known of the reason for the trial court’s entry of judgment of
non pros when she filed her 1925(b) Statement. Therefore, she had ample
opportunity to apprise the trial court of her intent to challenge its application
of Rule 218 at the time of jury selection. Instead, she informed the court that
she intended to challenge its entry of judgment of non pros, pursuant to “the
mandate of Pa.R.C.P. 237.3 . . . .” 1925(b) Statement at 1.
Because Ms. Atuahene identified Rule 237.3 as her appellate issue, the
trial court analyzed that Rule in its 1925(a) Opinion, instead of Rule 218. As
the trial court explained, Ms. Atuahene “argue[d] that the denial of her petition
[to open the judgment of non pros] violated the mandate of Rule 237.3.” Trial
Court Opinion, 9/2/22, at 5. “However, as made clear in Rule 3051, . . . Rule
237.3 only relates to relief from a judgment of non pros entered pursuant to
Rule 1037(a), which addresses non pros for failure to file a complaint.” Id. at
5-6. “That is not the case here, where the non pros was entered for failure to
appear for trial pursuant to Rule 218.” Id. at 6. Thus, the trial court’s opinion
rightly demonstrated that Rule 237.3 was irrelevant.
Thereafter, Ms. Atuahene changed her appellate issue from a Rule-237.3
challenge to a Rule-218 challenge. Our Rules of Appellate Procedure do not
permit an appellant to switch her appellate theories after reading the trial
court’s 1925(a) Opinion. Accordingly, Rule 1925(b) requires us to dismiss Ms.
Atuahene’s first appellate issue as waived, because the trial court notified her
of the Rule’s waiver provision, and she included no claim that the trial court
misapplied Pa.R.C.P. 218 in her 1925(b) Statement.
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Her first sub-issue is dismissed as waived.
2. Refusal to Open the Judgment of Non Pro
As her second sub-issue, Ms. Atuahene contends the “denial of [her]
Petition to Open Judgment of Non Pros constitute[d] gross error of law and
manifest abuse of discretion . . . .” Atuahene’s Brief at 2.
“A trial court’s decision to deny a petition to open or strike a judgment
of non pros is reviewed pursuant to an abuse of discretion standard.” Banks
v. Cooper, 171 A.3d 798, 801 (Pa. Super. 2017). “This means that the trial
court’s decision will be overturned only if [it] reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support as to be clearly erroneous.” Id.“Relief from a judgment of non pros shall be sought by petition. All
grounds for relief . . . must be asserted in a single petition.” Pa.R.C.P.
3051(a). Where, as here, a plaintiff seeks to open the judgment, “the petition
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.” Pa.R.C.P. 3051(b). If a petitioner fails to satisfy any of those prongs,
the petition must be denied. See, e.g., Sullivan v. Belmont Ctr. for
Comprehensive Treatment, 848 A.2d 994, 996 (Pa. Super. 2004) (affirming
an order denying petition to open judgment of non pros, because plaintiff
failed to satisfy the first prong of the test).
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Here, the trial court denied Ms. Atuahene’s petition, because it found
she failed to satisfy the second and third prongs. See Trial Court’s Opinion,
9/2/22, at 6-7.
Regarding the second prong – whether Ms. Atuahene had a reasonable
excuse for failing to appear on March 4, 2022 – the trial court found she did
not. The court observed that this was the second time Ms. Atuahene failed to
appear for jury selection and the second time that she contended that she did
not receive the scheduling order. The trial court stated that, even if she did
not receive the scheduling order by U.S. mail, she “failed to check the status
of her case, which [was] readily available to the public, for a full three
months.” Id. at 7. Therefore, the court concluded Ms. Atuahene’s failure to
appear was not “inadvertent, but rather . . . a pattern of improper behavior.”
Id.
As for the third prong – whether her underlying claims were meritorious
– the trial court adopted the conclusion of the arbitration panel that the statute
of limitations time barred Ms. Atuahene’s tort claim. Additionally, the trial
court opined that she could not recover uninsured/underinsured benefits from
Ms. Agondanou, because such “benefits are a first party coverage available
through an individual’s insurance (or the insurance for the vehicle in which the
person is riding), not through the tortfeasor’s insurance.” Id. at 6. Because
the trial court found she could not win on her underlying causes of action, it
deemed her remaining counts (for punitive damages and for delay damages)
legally untenable.
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In response, Ms. Atuahene repeats her argument that the trial court
violated Pa.R.C.P. 218, and therefore the entry of the judgment of non pros
should be declared void. However, a claim that the trial court violated Rule
218 did not appear in Ms. Atuahene’s petition to open the judgment of non
pros.
Rule 3051(a) dictates that “All grounds for relief . . . must be asserted
in a single petition.” Interpreting this requirement, the Supreme Court of
Pennsylvania has explained, “it ensures that the trial court, which is in the
best position to rule on the matter in the first instance, shall have an
opportunity to do so.” Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1000
(Pa. 2001). “Such an approach will avoid unnecessary appeals, thereby
assuring judicial economy, and will provide a better record for review in those
cases where the question is close enough to warrant an appeal.” Id.Thus, the requirement of Rule 3051(a) that all grounds for relief must
be asserted in a single petition complements Pa.R.A.P. 302(a). Under that
Rule, “Issues not raised in the trial court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a).
Here, in her petition to open the judgment of non pros, Ms. Atuahene
did not assert that the trial court should open it due to a prior misapplication
of Rule 218. Hence, she did not give the trial court a chance to rule on this
theory in the first instance. Under Pa.R.A.P. 302(a) and P.R.C.P. 3051(a), we
dismiss any theory or claim that the trial court erred or abused its discretion
by misapplying Rule 218 as waived.
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In addition, Ms. Atuahene contends the trial court misapplied the statute
of limitations to dismiss her tort claim as meritless. The trial court relied upon
42 Pa.C.S.A. § 5524(3). That statute dictates that “actions and proceedings
must be commenced within two years . . . to recover damages for injury to .
. . property which is founded on negligent, intentional, or otherwise tortious
conduct . . . .” Id.
Here, Ms. Atuahene’s cause of action for property damage accrued
against Ms. Agondanou on the date of the car accident, December 11, 2014.
Ms. Atuahene commenced this action four years later. Thus, the trial court’s
legal conclusion that she filed this cause of action after the statute of
limitations expired is correct.
Nevertheless, Ms. Atuahene argues that she brought this action under
42 Pa.C.S.A. § 5532. That statute provides as follows:
If, when a cause of action accrues against a person, he is
without this Commonwealth, the time within which the
action or proceeding must be commenced shall be computed
from the time he comes into or returns to this
Commonwealth. If, after a cause of action has accrued
against a person, he departs from this Commonwealth and
remains continuously absent therefrom for four months or
more, or he resides within this Commonwealth under a false
name which is unknown to the person entitled to commence
the action or proceeding, the time of his absence or
residence within this Commonwealth under such a false
name is not a part of the time within which the action or
proceeding must be commenced.
42 Pa.C.S.A. § 5532(a).
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Ms. Atuahene contends for the first time on appeal that, “between July
2016 and December 8, 2016, [she] attempted to reach Ms. Agondanou by
visiting her registered residential address . . . twice a month without success.”
Atuahene’s Brief at 21. She alleges that only teenagers were home when she
visited. Ms. Atuahene therefore believes that she “could not file any complaint
with the court.” Id.
First, this Court is not a court of record. As an appellate court, we do
not make findings of fact. As such, we have no way of judging the credibility
of Ms. Atuahene’s claim that she attempted to find Ms. Agondanou at her
home in the second half of 2016. Our scope of review is confined to the facts
in the certified record. “ It is well settled that an appellate court may consider
only those facts which have been duly certified in the record on appeal.”
Lundy v. Manchel, 865 A.2d 850, 855 (Pa. Super. 2004). Hence, the factual
allegations which Ms. Atuahene raises for the first time in her appellate brief
are outside our scope of review.
But even if Ms. Atuahene visited Ms. Agondanou’s residence every other
week for six months in 2016, that fact, standing alone, would not toll the two-
year statute of limitations under 42 Pa.C.S.A. § 5532(a), as a matter of law.
To invoke Section 5532(a), a litigant must prove that the defendant was
“without the Commonwealth.” 42 Pa.C.S.A. § 5532(a). In applying Section
5532(a), this Court has held, if “the plaintiff(s) made a reasonably diligent
effort to find the defendant, yet the defendant was not located, then the
limitations period will be tolled for the period of time which the defendant was
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out of state and not located.” Johnson v. Stuenzi, 696 A.2d 237, 242–43
(Pa. Super. 1997) (emphasis added).
Thus, in order to invoke the tolling of Section 5532(a), Ms. Atuahene
needed to prove to the finder of fact where Ms. Agondanou was (i.e., that she
was out of Pennsylvania), rather than where she was not (i.e., not at her last
known address on the occasions Ms. Atuahene decided to visit). Simply
because Ms. Agondanou was not at home when Ms. Atuahene randomly
decided to visit her last known address does not prove that Ms. Agondanou
was actually absent from the Commonwealth. It only proves she was not at
that location when Ms. Atuahene visited. There are no facts of record, by
affidavit, testimony, or otherwise, to prove that Ms. Agondanou was outside
Pennsylvania.2 Thus, Ms. Atuahene may not invoke the tolling provisions of
Section 5532(a).
Second, the fact that Ms. Agondanou was not home when Ms. Atuahene
visited does not excuse Ms. Atuahene’s failure to file her Complaint against
Ms. Agondanou during the two-year period for property-damage actions. Ms.
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2 Pennsylvania is a big place. The Commonwealth contains 67 counties; 2,560
municipalities; and 5,770,601 residences. See The United States Census
Bureau, “QuickFacts: Pennsylvania,” available at
https://www.census.gov/quickfacts/fact/table/PA/BZA010220 (last visited
3/7/22). Ms. Agondanou could have been in any one of them when Ms.
Atuahene visited Ms. Agondanou’s last known address. If she was, Ms.
Agondanou would not have been “without this Commonwealth.” 42 Pa.C.S.A.
§ 5532(a). Thus, even if true, Ms. Atuahene’s factual allegations of randomly
visiting Ms. Agondanou are insufficient, as a matter of law, to apply the tolling
statute.
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Atuahene could have filed her Complaint and continually praeciped to reinstate
it until a process server located Ms. Agondanou.3 In fact, Ms. Atuahene admits
in her brief that she reinstated her Complaint on several occasions after she
filed it in December of 2018. Thus, her reliance upon 42 Pa.C.S.A. § 5532(a)
is unavailing.
Next, in response to the trial court’s conclusion that her count for
uninsured/underinsure motor benefits is meritless, Ms. Atuahene offers no
counterargument. She only says that the trial court failed to cite any authority
to support its conclusion of law.
However, she commits the same oversight. She cites no law to indicate
that her uninsured/underinsured-motor-benefits claim has merit. In fact, she
does not even claim that the trial court’s legal conclusion is in error.
Accordingly, we dismiss any claim that the trial court misapplied the law of
uninsured/underinsured motor benefits as waived. See Pa.R.A.P. 2119(a)
(requiring that an appellant’s brief shall contain “such discussion and citation
of authorities as are deemed pertinent”).
Because Ms. Atuahene is not entitled to appellate relief under the third
prong of Pa.R.C.P. 3051(b), she fails to persuade us that the trial court abused
its discretion by denying the petition to open the judgment of non pros. As
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3“If service within the Commonwealth is not made within the time prescribed
by subdivision (a) of this rule or outside the Commonwealth within the time
prescribed by Rule 404, the prothonotary upon praecipe and upon
presentation of the original process, or a copy thereof, shall continue its
validity by designating the writ as reissued or the complaint as reinstated.”
Pa.R.C.P. 401(b)(1).
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such, we dismiss her second sub-issue as partially waived and partially
meritless.
3. Constitutional Claims
Finally, Ms. Atuahene argues the trial court denied her petition to open
the judgment of non pros “without due process and First Amendment right to
a fair hearing and deprived [her] of property rights under Article I, § 1 of the
Pennsylvania Constitution.” Atuahene’s Brief at 2. However, in the argument
portion of her brief, she quotes the Fourteenth Amendment to the Constitution
of the United States, rather than the First Amendment to the Constitution of
the United States or Article I, § 1 of the Constitution of Commonwealth of
Pennsylvania. Ms. Atuahene then attempts to relitigate her claim that the trial
court misapplied Rule 218 by reframing it as a constitutional question.
She states, “as discussed here before, the trial court’s entry of judgment
of non pros by arbitrarily and capriciously misapplying Rule 218 and [42
Pa.C.S.A.] § 5532 clearly violated [Ms. Atuahene’s] substantiative due
process.” Atuahene’s Brief at 32. “In fact, the entry of non pros on March 4,
2022, without allowing trial to proceed on March 7, 2022, is violative of both
procedural and substantive due process.” Id. She asserts there is “no rational
basis that the trial could not be held without a jury.” Id. at 33. “So, the only
appropriate sanction for [her] failure to appear for the jury selection was to
cancel the jury trial and convert the trial to a bench trial.” Id.
As previously demonstrated, Ms. Atuahene waived any claim that the
trial court violated Rule 218 by failing to raise that issue in her Petition to
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Open the Judgment of Non Pros and in her 1925(b) Statement. As such, she
may not resurrect it in the guise of a constitutional claim. Any claim or theory
based upon the trial court’s failure to follow Rule 218 is waived. Moreover,
the trial court correctly did not toll the two-year statute of limitations for Ms.
Atuahene’s tort claim under 42 Pa.C.S.A. § 5532, because she placed no facts
in the record to prove that Ms. Agondanou was outside Pennsylvania following
the car accident.
Furthermore, because Ms. Atuahene waived her claims regarding Rule
218, the trial court’s application of that Rule, based on its interpretation, was
not irrational. The court held that Rule 218 applied at the time of jury
selection, and it enforced the sanction for violating the Rule as written – i.e.,
entry of judgment of non pros.4 Therefore, the trial court was not free to
impose its own remedy and convert Ms. Atuahene’s jury trial into a bench trial
to compensate for her failure to appear when the court directed her to do so,
as Ms. Atuahene suggests in her brief.
We find no due process violation under the Fourteenth Amendment to
the federal constitution or under Article I, § 1 of the state constitution. The
final appellate issue is meritless.
Order affirmed.
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4To be clear, because Ms. Atuahene waived her theory regarding Pennsylvania
Rule of Appellate 218, we offer no opinion on whether the trial court’s
application of the Rule at the time of jury selection was correct.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2023
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