Ira H. Weinstock, P.C. v. Tomasko, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IRA H. WEINSTOCK, P.C. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RONALD T. TOMASKO, JULIE A.
KORANDA, AS ADMINISTRATRIX OF THE
ESTATE OF MICHAEL A. KORANDA, AND
TOMASKO AND KORANDA, P.C.
Appellees No. 1177 MDA 2015
Appeal from the Order Entered June 19, 2015
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2000-CV-2292
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 26, 2016
Ira H. Weinstock, P.C. (“Weinstock”), appeals from the order entered
in the Court of Common Pleas of Dauphin County denying Weinstock’s
petition to strike judgment of non pros or, alternatively, petition to open
entry of judgment of non pros. Upon careful review, we affirm.
This matter arises from two actions initiated by Weinstock in 1997 and
2000, which were subsequently consolidated upon Weinstock’s motion in
June 2005. Weinstock filed an amended complaint, incorporating the claims
from the two original actions, on August 1, 2005.1 Specifically, Weinstock
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1
Appellees filed preliminary objections to this complaint, which were denied
on December 29, 2006.
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alleged that Ronald Tomasko and Michael Koranda, employees of the
Weinstock law firm working as associate attorneys, wrongfully induced
numerous clients to sever their relationships with Weinstock and retain
Appellees as counsel after Appellees left to form their own firm, Tomasko
and Koranda, P.C.2
The trial court set forth the relevant procedural history as follows:
Defendants filed a notice of death of Michael A. Koranda on
January 15, 2007, and subsequently moved to substitute the
administratrix of his estate as a Defendant. On January 25,
2007, Defendants filed an Answer with New Matter and
Counterclaim. Plaintiff filed a Reply to New Matter and Answer
to Counterclaim on March 28, 2007. On May 18, 2007,
Defendants filed a Reply to Plaintiff’s new matter on the
counterclaim. There was no meaningful docket activity from that
date until June 6, 2012, when a second[3] Notice of Proposed
Intention to Terminate Court Case due to lack of docket activity
was issued by the court.
On August 1, 2012, Plaintiff filed its Statement of Intention to
Proceed. The [c]ourt issued an [o]rder on September 6, 2012,
requiring the parties to discuss timelines to move [the] case
forward. The parties filed a Joint Status Report on October 12,
2012, stating that their discovery plan would take approximately
ninety (90) days to complete. Once discovery was completed,
the parties would file dispositive motions if necessary.
Defendants filed a motion to extend time for discovery, which
was granted on December 17, 2012. By that [o]rder, discovery
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2
The consolidated amended complaint contained counts of interference with
contract, breach of fiduciary duty, unjust enrichment, quantum meruit,
defamation, and a request for an accounting of all monies “received on
behalf of or from individuals and entities who were formerly clients of Ira H.
Weinstock, P.C.” Amended Complaint, 8/1/05, at ¶ 167.
3
The trial court had previously issued a notice of proposed termination due
to inactivity with respect to the second action filed by Weinstock in 2000.
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was due to be completed on or before February 13, 2013, with
dispositive motions due on or before March 15, 2013.
On March 15, 2013, Defendants filed a Motion for Judgment of
Non Pros and, in the Alternative, for Summary Judgment, and
brief in support thereof. Plaintiff filed its Answer and brief in
opposition thereto on April 15, 2013. Defendants were granted
leave to file a reply brief, which was filed on May 6, 2013. On
January 30, 2014, Defendants filed a Certificate of Readiness for
the motion.
This [c]ourt heard oral argument on Defendants’ [m]otion on
March 13, 2014. On April 4, 2014, this [c]ourt issued an [o]rder
granting Defendants’ [m]otion, and directing the Prothonotary to
enter a Judgment of Non Pros against Plaintiff for the following
reasons: (1) Plaintiff has shown a want of due diligence in
failing to proceed with reasonable promptitude; (2) there was no
compelling reason for the delay; and (3) the delay has caused
prejudice to the Defendants in their ability to defend against the
action.
Plaintiff filed an appeal on May 2, 2014, but subsequently
withdrew and discontinued the appeal. On July 3, 2014, Plaintiff
filed a Petition to Strike Judgment of Non Pros, or Alternatively,
Petition to Open Judgment of Non Pros. Both parties filed briefs
as well as supplemental briefs following the status conference on
September 29, 2014. [The court entered an order denying
Plaintiff’s petition to strike or open on June 19, 2015.]
Trial Court Opinion, 6/19/15, at 3-4 (internal footnotes omitted).
This timely appeal follows, in which Weinstock raises the following
issues for our review:
1. Whether the trial court erred and abused its discretion in its
application of [Pa.R.C.P.] 3051 in denying [Weinstock’s] petition
to strike judgment of non pros[.]
2. Whether the trial court erred and abused its discretion in
granting Appellees’ [motion for judgment of non pros] and
denying [Weinstock’s] petition based upon a period of alleged
inactivity already assessed and remedied by another judge of the
same court[.]
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3. Whether the trial court erred and abused its discretion in
failing to find that Appellees waived or did not preserve any right
to request a judgment of non pros where Appellees had unclean
hands and failed to raise or maintain the issue at the earliest or
any other appropriate time.
Brief of Appellant, at 4.
We begin by noting that any appeal related to a judgment of non pros
lies not from the judgment itself, but from the denial of a petition to open or
strike. Bartolomeo v. Marshall, 69 A.3d 610, 613-14 (Pa. Super. 2013)
(citation omitted). An order denying a petition to open a judgment of non
pros, while not disposing of all parties and all claims, is an interlocutory
order immediately appealable as of right. Smith v. Friends Hosp., 928
A.2d 1072, 1074 (Pa. Super. 2007).
A trial court’s decision to deny a petition to open or strike a judgment
of non pros is scrutinized under the abuse of discretion standard of appellate
review. Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super.
2011), citing Parkway Corp. v. Margolis Edelstein, 861 A.2d 264, 265
(Pa. Super. 2004). An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but requires a
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous. Dibish v. Ameriprise Fin.,
Inc., 134 A.3d 1079, 1095 (Pa. Super. 2016).
To dismiss a case for inactivity pursuant to a defendant’s motion for
non pros, there must first be a lack of due diligence on the part of the
plaintiff in failing to proceed with reasonable promptitude. Second, the
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plaintiff must have no compelling reason for the delay. Finally, the delay
must cause actual prejudice to the defendant. Jacobs v. Halloran, 710
A.2d 1098, 1103 (Pa. 1998).
A request to open a judgment of non pros,4 like the opening of a
default judgment, is in the nature of an appeal to the equitable powers of
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4
Rule of Civil Procedure 3051 governs relief from a judgment of non pros
and provides, in relevant part, as follows:
(a) Relief from a judgment of non pros shall be sought by
petition. All grounds for relief, whether to strike off the judgment
or to open it, must be asserted in a single petition.
...
(c) If the relief sought includes the opening of the judgment of
non pros for inactivity, the petition shall allege facts showing
that
(1) the petition is timely filed,
(2) there is a meritorious cause of action, and
(3) the record of the proceedings granting the judgment of
non pros does not support a finding that the following
requirements for entry of a judgment of non pros for
inactivity have been satisfied:
(i) there has been a lack of due diligence on the part of
the plaintiff for failure to proceed with reasonable
promptitude,
(ii) the plaintiff has failed to show a compelling reason
for the delay, and
(iii) the delay has caused actual prejudice to the
defendant.
Pa.R.C.P. 3051.
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the court and, in order for the judgment of non pros to be opened, a three-
pronged test must be satisfied: (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 that support a cause of action. Madrid, 24
A.3d at 381; Pa.R.C.P. 3051.
Here, Weinstock initially argues that the trial court erred in its
application of Rule 3051 in denying his petition to open. Specifically,
Weinstock asserts that the record does not support a finding that the three
prongs of subsection (c)(3), regarding the requirements for entry of
judgment non pros, have been satisfied. First, Weinstock asserts that he did
not demonstrate a lack of due diligence in prosecuting the case because his
diligence “was frustrated by circumstances” involving his inability to obtain
his file from his former counsel, Karen Coates, Esquire, who had left the
private practice of law. Brief of Appellant, at 12. Second, Weinstock claims
that, contrary to the trial court’s finding, he did, in fact, offer compelling
reasons for the delay. Specifically, Weinstock again cites to his difficulties in
obtaining Attorney Coates’ file, as well as extensive litigation in federal court
regarding “many issues similar to those asserted by the Appellees in this
case.” Id. at 13. Finally, Weinstock claims that Appellees did not suffer
actual prejudice because the death of defendant Michael Koranda, which
both Appellees and the court cite as prejudicial to Appellees’ ability to defend
themselves, actually occurred prior to the period of inactivity. Weinstock
also asserts that Appellees did not demonstrate actual prejudice resulting
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from the absence and/or death of several clients. This claim is without
merit.
Initially, Weinstock’s argument regarding due diligence is unavailing.
Although he asserts that he was unable to obtain his file from Attorney
Coates, Weinstock neglects to note that he, himself, had been signing
pleadings since January 2005, over two years before the period of inactivity
began. Indeed, it appears that Attorney Coates never appeared on a
distribution list for any court order in this matter after June 2006, having
been replaced by Weinstock himself. Because Weinstock had essentially
taken over his own representation more than two years prior to the period of
inactivity, it defies credulity that he would nevertheless assign blame for the
inaction to an attorney who had not had an active role in the litigation for an
extended period of time. Accordingly, the court did not err in finding that
Weinstock did not satisfy the due diligence prong of the inquiry. See Metz
Contracting, Inc. v. Riverwood Builders, Inc., 520 A.2d 891, 894 (Pa.
Super. 1987) (mere neglect or inadvertence of counsel to proceed over
period of three years is inadequate to signify good cause for reinstatement).
Weinstock’s claim that the court erred in failing to find he established
compelling reasons for the delay is similarly without merit. In addition to
blaming prior counsel, Weinstock asserts that allegedly-related “extensive
litigation” in other fora hindered his ability to proceed with the instant
matter. However, Weinstock has provided no proof, other than a bald claim,
that the other cases involving the Appellees prevented him from pursuing his
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claims in this matter. Nor has he provided any legal support for the idea
that docket activity from unrelated actions may compensate for lack of
activity in another case so as to successfully forestall a judgment of non pros
in the latter. Accordingly, the trial court did not err in concluding that
Weinstock did not show a compelling reason for the delay.
Finally, Weinstock has not demonstrated that the trial court committed
an abuse of discretion in finding that the Appellees had been prejudiced by
the period of inactivity. In its opinion, the court concluded that the totality
of the circumstances, including the deaths of Michael Koranda and witness
Richard Weschitz, the advanced age of some witnesses, and the inability to
locate numerous other witnesses, supported a finding of actual prejudice.
Although, as Weinstock notes, Koranda’s passing occurred prior to the period
of inactivity, the effect of his death was exacerbated by the death and/or
disappearance of other witnesses. For example, the trial court notes that
five of the sixteen clients identified by Weinstock as having been lured away
by the Appellees were “represented by and interacted solely with” Koranda.
Trial Court Opinion, at 11. Koranda’s absence deprives the Appellees of
potentially relevant information regarding these individuals. Given our
deferential standard of review, see Dibish, supra, we cannot say that the
trial court abused its discretion in finding that the Appellees suffered a
“substantial diminution” of their ability to present their case at trial and,
consequently, denying relief to Weinstock.
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Weinstock’s final two claims are related and are based on the following
series of events that transpired in 2012. On June 6, 2012, the court, by the
Honorable Lawrence F. Clark, Jr., issued an administrative notice of
proposed termination of court case due to a lack of docket activity in the
matter for at least two years. The order stated that the case would be
terminated unless a statement of intention to proceed was filed within two
months, or by August 2, 2012. On August 1, 2012, Jason M. Weinstock,
Esquire, on behalf of Ira H. Weinstock, P.C., filed a statement of intention to
proceed. Thereafter, on September 6, 2012, the court issued another order,
directing the parties to “confer and discuss timelines necessary to move this
case expeditiously forward to settlement, arbitration, trial or other
disposition.” Trial Court Order, 9/6/12. The parties submitted a joint status
report on October 12, 2012 and, on October 15, 2012, the court issued a
case management order setting forth discovery and other deadlines. On
December 14, 2012, after taking Weinstock’s deposition, the Appellees filed
a motion to extend the discovery deadline to enable them to depose Wendy
Bowie, a former employee of Weinstock and a “crucial witness” in the case.
Motion to Enlarge the Time for Discovery, 12/14/12, at ¶ 7. The court
granted an enlargement of time by order dated December 17, 2012. On
March 15, 2013, Appellees filed their motion for judgment of non pros.
Weinstock first asserts that, in issuing a judgment of non pros, the
court “contradict[ed] and overrul[ed] the previous [o]rders from which no
appeals were taken and regarding which no motions were filed.” Brief of
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Appellant, at 15. This argument appears to be an attempt to invoke the
coordinate jurisdiction rule, pursuant to which judges of coordinate
jurisdiction sitting in the same case should not overrule each others’
decisions. See Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).
However, Weinstock neither explicitly invokes the rule nor cites any
authority in support of his claim. We have repeatedly held that failure to
develop an argument with citation to, and analysis of, relevant authority
waives that issue on review. Harris v. Toys "R" Us-Penn, Inc., 880 A.2d
1270, 1279 (Pa. Super. 2005); Pa.R.A.P. 2119(b). Accordingly, we find this
claim waived.
Weinstock also argues that the Appellees’ compliance with the trial
court’s case management orders, by cooperating in the submission of a
status report and seeking to enlarge the time for discovery, “rendered
[their] hands unclean” by effectively signaling their acquiescence to moving
forward with the case. Because a party seeking equitable relief, such as the
entry of a judgment of non pros, must do so with clean hands, Jacobs,
supra, Weinstock claims that the court erred in granting judgment of non
pros. Weinstock is entitled to no relief.
The doctrine of unclean hands requires that one seeking equity act
fairly and without fraud or deceit as to the controversy in issue. Terraciano
v. Com., Dep't of Transp., Bureau of Driver Licensing, 753 A.2d 233,
237-38 (Pa. 2000), citing Jacobs, 710 A.2d at 1103. Application of the
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doctrine is confined to willful misconduct which concerns the particular
matter in litigation. Shapiro v. Shapiro, 204 A.2d 266, 268 (Pa. 1964).
Here, there is no allegation of fraud, deceit or willful misconduct on the
part of the Appellees. To the contrary, Weinstock bases his “unclean hands”
claim on the Appellees’ very compliance with the scheduling orders issued by
the trial court.5 Such an assertion not only defies logic, but must fail as a
matter of law. See id.; Terraciano, supra.
Order affirmed.
DUBOW, J., Joins the memorandum.
STABILE, J., Concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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5
Weinstock also baldly states that “even from the events giving rise to this
case, Appellees’ hands were not clean.” Brief of Appellant, at 16. This is
apparently a reference to Weinstock’s allegation that the Appellees “stole”
clients from him. However, the claims forming the basis of Weinstock’s
complaint, which Appellees have denied, remain only unproven allegations.
Accordingly, even if Weinstock had set forth a more fulsome argument than
a single unsupported sentence, he would not be entitled to relief.
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