A hearing was scheduled in this case on October 25, 2018.  When the Defendant did not appear, the Plaintiff elected to proceed to a hearing before the judge, which was promptly conducted ex-parte by Judge Alan Herzberg.

However, the Defendant filed a post-trial motion for reconsideration, stating that she had been confused concerning the hearing date.  She ran into the Plaintiff, her landlord and said she would see him in court on a certain date, the wrong date.  The landlord did not reply, permitting the tenant to continue in the belief that the hearing date was the wrong date.

On October 31, Judge Herzberg vacated his October 25 non-jury verdict and scheduled a new arbitration hearing date.  He cited two cases in his opinion, Shin v. Brenan and Williams v. School District of Philadelphia, both linked above.

In Shin, the Defendant had appealed an arbitration decision to Common Pleas Court and the case was assigned to a settlement conference on a specified date in the presence of the defense counsel. When counsel failed to appear at the settlement conference, the appeal was dismissed. Defendant petitioned to reinstate the appeal, averring that counsel had inadvertently failed to note the matter on on his calendar.  On appeal, the Superior Court ruled that the court had the authority to dismiss the case under Rule 218, but had abused its discretion by doing so.

The Superior Court opinion noted that the record did not indicate that the court below had made any attempt to contact counsel before dismissing the appeal.  It stated: “There was no suggestion by the trial court that counsel’s behavior was part of a pattern of misconduct or abuse.  There is no allegation that the opposing party would be prejudiced by a delay. The trial court did not conduct a hearing, either before dismissing the appeal or on [defendant’s] petition to reinstate the appeal, in which it could have appropriately reviewed the appropriateness of the dismissal.  Most importantly, there is no indication that the trial court gave any consideration to lesser sanctions.”

In Williams, decided by the Commonwealth Court, the Court of Common Pleas of Philadelphia County conducted an ex-parte trial and found the District liable for injuries sustained by Williams. Williams, a minor, was riding in a school bus when it began to rain.  The bus driver told the student-passengers to close the windows.  She knelt on the seat to close a window and her knee went into the seat, causing a cut.  When she saw blood, she hopped to the front of the bus to tell the driver, who pulled over and called an ambulance.

During discovery, the School District had obtained two orders precluding the admission of certain medical evidence at trial.  The attorney for Williams stated that the plaintiff would not appear at the arbitration, but would appeal to the common pleas court for a trial de novo. Williams did not appear, but her counsel did.  On appeal, the judge entered sanctions against Williams for not appearing at arbitration and a new arbitration case was scheduled. A notice of the new date never reached counsel for the School District, who happened to be pregnant with triplets at the time when the case was to be heard.  The School District also never received the “20 day packet” of evidence Williams intended to introduce.  Counsel for the School District returned from her absence on the day of trial, but attended another matter, being unaware of the scheduled hearing.

An ex-parte hearing was conducted before a judge under Philadelphia Local Rule 1303, the equivalent of the Allegheny County local Rule. The Court entered a verdict for the Plaintiff.

After post trial motions were dismissed, the School District appealed.

Citing and quoting Shin, the Commonwealth Court stated:

“While Shin involved a failure to appear at a settlement conference, the Superior Court extended that holding to failure to appeal for an arbitration hearing. Thompson v. Houston, 839 A.2d 389 (Pa.Super.2003); Faison v. Turner, 858 A.2d 1244 (Pa.Super.2004). While those cases are not binding on this Court, they cogently set forth the factors that a trial court should use to dismiss an action for failure to appear, and we adopt them as our own.”

Out of this line of cases has emerged the following five pronged test, as set forth in the Faison case and quoted in the most recent case, Banks v. Cooper, in 2017:

“When evaluating the explanation or excuse proffered by a party who failed to appear for trial and is seeking to open a judgment of non pros, the court should consider:

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 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 court gave any consideration to lesser sanctions.”

What practical advice should we take away from these cases? None  of these questions can be answered with any degree of certainty without some sort of a hearing. Must a telephone call be made to the missing litigant before trying the case ex-parte or dismissing the action? If no one answers, can the case then be tried ex-parte or dismissed.

When the forgetful or confused pro-se litigant discovers that the case has been ended without his participation, someone tells him or her to file post trial motions. At that point, the judge can apply the five pronged test, as Judge Hertzberg did.  If a bus ran over your foot on the way to court, you are covered.  However, if your alarm clock didn’t go off, probably not.  And if the opponent knew that you thought the hearing was on the wrong day and didn’t disabuse you of the error, hope you were assigned to Judge Hertzberg.

CLT