J-S59032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ICEHOUSE, LLC, FTGP,LLC AND : IN THE SUPERIOR COURT OF
COHEN & WILLWERTH, P.C. : PENNSYLVANIA
:
:
v. :
:
:
JOHN SCOTT :
: No. 389 EDA 2017
Appellant :
Appeal from the Order December 12, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): June Term 2015 No. 02805
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 22, 2017
Appellant, John Scott, appeals from the order denying his petition to
strike or open the judgment of non pros entered by the Philadelphia County
Court of Common Pleas in his wrongful use of process action against
Appellees, Icehouse, LLC (“Icehouse”), FTGP, LLC (“FTGP”), and Cohen &
Willwerth, P.C. (“Law Firm”). Appellant claims that the trial court erred in
entering the judgment of non pros and denying his petition to open. We
affirm.
The disputes between Appellant and Appellees arise from a
development project proposed by Appellees Icehouse and FTGP. Appellant
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* Former Justice specially assigned to the Superior Court.
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opposed the projects, and in 2010, he successfully appealed a Philadelphia
Zoning Board of Adjustment (“ZBA”) determination in the Commonwealth
Court. Icehouse and FTGP subsequently submitted a new proposal to the
ZBA, which granted a variance. In 2012, Appellant appealed the ZBA’s
determination (“Zoning Appeal”). The Court of Common Pleas concluded
that Appellant lacked standing and quashed his appeal on January 9, 2013.
Appellant appealed that order to the Commonwealth Court.
On March 6, 2013, Appellees Icehouse and FTGP, though their counsel,
Appellee Law Firm, commenced an action for abuse of process against
Appellant (“Icehouse Action”). Appellant filed preliminary objections, and on
June 17, 2013, the trial court dismissed the Icehouse Action without
prejudice. The court concluded that Appellee’s claims were premature in
light of Appellant’s pending Zoning Appeal. No appeals were taken from the
order dismissing the Icehouse Action.
On October 10, 2014, the Commonwealth Court reversed the quashal
of the Zoning Appeal, concluding that the issue of Appellant’s standing was
waived. Scott v. City of Philadelphia, Zoning Bd. of Adjustment, 88
A.3d 1071, 1079 (Pa. Commw. Ct. 2014), rev'd and remanded, 126 A.3d
938 (2015). On November 25, 2014, the Pennsylvania Supreme Court
granted allowance of appeal from the Commonwealth’s Court order.
On June 22, 2015, Appellant commenced the instant action by filing
praecipes for the issuance of writs of summons against several defendants,
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including the above-captioned Appellees.1 Appellant thereafter revived the
writs of summons on a timely basis, but did not file a complaint.
On October 29, 2015, four months after Appellant commenced the
instant action, the Pennsylvania Supreme Court reversed the Commonwealth
Court’s decision in the Zoning Appeal. Scott, 126 A.3d at 950. The Court
held that the Commonwealth Court erred in concluding that standing was a
waivable issue and remanded for further consideration of whether Appellant
possessed standing to proceed in the Zoning Appeal. Id.
On December 17, 2015, the trial court issued a case management
order in the instant matter and listed the case for the September 2016 trial
term. Counsel from Appellee Law Firm entered an appearance on behalf of
“all Defendants” on April 12, 2016. On April 13, 2016, Appellant filed a
motion for extraordinary relief to extend the pretrial deadline due to the
pending Pennsylvania Supreme Court’s decision in the Zoning Appeal.
Appellees opposed relief and noted that no complaint had been filed. On
May 2, 2016, the trial court denied Appellant’s motion for extraordinary
relief and on May 18, 2016, denied Appellant’s motion for reconsideration.
Less than one month later, Appellant sought a stay noting, inter alia, that in
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1In addition to Appellees, Appellant sought writs of summons against EPDG
LP, FT Holdings LP, and Paul J. Cohen, Esq. (“Cohen”). Cohen appears to be
part of Appellee Law Firm. Appellant alleges Appellee Icehouse also does
business as EPDG LP and that Appellee FTGP also does business as FT
Holdings LP.
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March of 2016, he had been “arrested” for attempting to extort a settlement
from Appellees in the zoning matter. The court denied a stay on June 21,
2016, and subsequently denied Appellant’s motion to certify that order for
an interlocutory appeal.2
On September 12, 2016, Appellant filed a praecipe to reissue the writs
of summons and to add a defendant, James Maransky. On September 14,
2016, the trial court issued a notice of trial attachment listing the matter for
trial on September 20, 2016. Two days later, counsel from Appellee Law
Firm entered an appearance on behalf of Maransky and filed a motion for
extraordinary relief seeking a sixty-day continuance for, inter alia, the filing
of a complaint in order to prepare a defense. Appellant did not oppose the
motion.3 The trial court denied Appellees’ motion on September 19, 2016,
one day before the scheduled trial date.
The following day, Appellant filed a complaint in the instant matter
asserting a claim for “Wrongful Use of Civil Proceedings/Dragonetti Act”4
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2Appellant appealed from the order denying a stay. This Court quashed that
appeal on September 16, 2016. Order, 2350 EDA 2016 (filed Sept. 16,
2016).
3 Appellees also apparently mailed a letter dated September 16, 2016, of its
intention to praecipe for entry of judgment of non pros within ten days.
Appellees’ Resp. to Appellant’s Pet. to Strike Non Pros, 10/24/16, Ex. C.
4 42 Pa.C.S. §§ 8351-8355.
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against Appellees and Cohen.5 Appellant’s Compl., 9/20/16, at 7
(unpaginated). Later that day, the parties appeared before the trial court,
and the court asked counsel for Appellant why a complaint was not filed.
N.T., 9/20/16, at 4. The following exchange occurred:
[Counsel for Appellant:] Well, Your Honor, a Complaint─a
Complaint was filed─
The Court: Don’t tell me it was filed today or yesterday.
A: It was filed earlier this morning, but we encountered a
number of delays because my─my client is involved in
concurrent litigation [i.e., the Zoning Appeal] that is going
on through the Commonwealth Court, litigation stemming
from zoning appeals that is the genesis of this whole case,
and that litigation is still pending before the
Commonwealth Court.
He is─we also had some delays in attempting to─
The Court: All right. There is an allegation of wrongful
abuse of process, is there not, in this matter?
And I am not sure [Appellant] hasn’t wrongfully abused
process by filing a Complaint on the day of trial.
Now the question I have for you, in a wrongful abuse of
process case, there has to be a satisfactory conclusion on
the part of the [Appellant] in this matter.
A: Yes, Your Honor. And [Appellant] in the underlying
litigation, that litigation─his preliminary objections were
sustained by the [t]rial [c]ourt in that matter [i.e., the
Icehouse Action].
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5 The complaint did not specifically name Maransky as a defendant, but
referred to him in the ensuing allegations.
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That was a case in which the current [Appellees] had
brought an abuse of process claim against my client, which
ultimately was─my client prevailed upon preliminary
objections, which was sustained by the [t]rial [c]ourt.
In the meantime, the underlying litigation which was
my client’s appeals of zoning variances up through
Common Pleas and through the Commonwealth Court, he
actually went up to the Supreme Court. The Supreme
Court bounced it back to the Commonwealth Court, so he
is still seeking resolution on that [i.e., the Zoning Appeal].
In the meantime, there is a related criminal prosecution
of my client in, I guess, conjunction with all of this zoning
related litigation that we were hoping would have
concluded by now, but it hasn’t.
* * *
The Court: I’m ready to no[n] pos this case on motion for
what I consider an abuse of process.
This case started in─the date of filing─
[Counsel for Appellees]: Your Honor, I believe it was June
25th.
The Court: Filing day was June 22, 2015. The trial date
was given on a date certain on this case on the 20th of
September. No complaint was filed. It was issued by
praecipe writ of summons which normally is a temporary
hold to avoid the statute of limitations issue and then
nothing else happened.
* * *
[Counsel for Appellant]: Well, Your Honor, we were
attempting to─to use a writ of summons to preserve my
client’s rights by preserving the statute of limitations.
The Court: But you didn’t have a cause of action when you
filed the summons.
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[Counsel for Appellant]: Well, Your Honor, I think that
we─we had a cause of action based on that my client had
prevailed at the underlying litigation [i.e., the Icehouse
Action] to this case, which was [Appellees]─the suit
[Appellees] had filed against my client last year, 2014,
2015. 2015 for abuse of process, that was dismissed on
POs.
The Court: [to Counsel for Appellant], I have not heard a
legitimate reason for you not filing the Complaint in this
case.
A: Well, Judge─
The Court: I’m waiting over─15 months has it been since
you filed the writ and summons and never filed the
Complaint?
Went through pretrial conferences and all that material
and then I get a call from the Supervising Judge that said
no Complaint has been filed in this case.
A: Your Honor, we filed a motion to stay the proceedings.
The Court: Which were denied?
A: Yes.
The Court: Because you had no reason to stay the
proceedings.
A: And we petitioned the Superior Court to review that
denial of motion to stay with an eye towards appealing it
as an interlocutory order should the Superior Court pick
that up.
And we did file a Complaint in good faith because we do
want to proceed with this. We do not want─our goal was
not to be no[n] pros. Our goal was to proceed with this.
We are also─a big concern that my client─that there
may be additional reasons that [Appellees] may come up
with to attempt to prosecute him further for statements
that he makes in─in a pleading, which sounds ridiculous if
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you think about it, but that’s what has been going on
already with─with him, you know, over the past several
months and that was another reason that we─we were
hesitant to file. We wanted to wait until that criminal
matter was resolved.
[Counsel for Appellees]: Your Honor, I move for no[n]
pros.
The Court: All right. I’m going to grant the motion for
no[n] pros.
You have time to file a motion to lift the no[n] pros and
there had better been [sic] a better explanation for not
filing a Complaint than what I heard in court this morning.
N.T. at 4-10.
On October 1, 2016, Appellant filed a petition to open the judgment of
non pros entered by the trial court. He averred that: (1) he acted diligently
in serving and reviving the writs of summons; (2) the Pennsylvania Supreme
Court decision in Villani v. Seibert, 159 A.3d 478 (Pa. 2017), was pending;
and (3) he was criminally charged with extortion related to the Zoning
Appeal. Appellant’s Pet. to Open J. for Non Pros, 10/1/16, at 2-5, 7
(unpaginated). Appellant further emphasized that the longest period of
docket inactivity was forty-six days, and that Appellees did not take steps to
require the filing of a complaint. Id. at 6, 8. Appellant thus claimed that
the delay was reasonable because he acted within his rights to delay the
filing of a complaint to await developments in the law and avoid
incriminating himself. Id. at 7-8. Appellant also asserted that Appellees
contributed to the delay by failing to maintain proper addresses, which
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delayed service of the writs, and that Appellees could not claim prejudice
because they failed to seek a rule requiring the filing of a complaint. Id. at
8. Lastly, Appellant asserted that his present cause of action was
meritorious and attached his expert’s opinion on the merits of the claim. Id.
at 8.
Appellees filed a response to Appellant’s petition to open the judgment
requesting that the trial court deny relief. They asserted, however, that
they “did not file the rule [requiring a complaint be filed] because it would
have prejudiced Defendant Cohen’s attempt to gain admission to the New
York bar and have raised his malpractice insurance . . . .” Appellees’ Answer
to Appellant’s Pet. to Strike Non Pros, 10/24/16 at 4 (unpaginated).
The trial court denied Appellant’s petition to open on December 13,
2016. This appeal followed.6 The trial court did not order a Pa.R.A.P.
1925(b) statement.
Appellant presents the following questions for review:
1. Did the [t]rial [c]ourt err as a matter of law and abuse
its discretion by ignoring Pa.R.C.P. 237.3 and 3051 when it
sua sponte suggested, and granted, an oral motion for
non-pros and in so doing, deprive the Appellant of his right
to proceed under the Dragonetti Act and Pa.R.C.P.
1007(1)?
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6 Appellant’s notice of appeal also included reference to the trial court’s prior
interlocutory orders denying Appellant’s motion for extraordinary relief,
Appellant’s motion for reconsideration of the denial of extraordinary relief,
Appellant’s motion for a stay, and Appellee’s motion for extraordinary relief.
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2. Did the [t]rial [c]ourt err as a matter of law and abuse
its discretion by disregarding the Appellant’s rights under
the Fifth, and Fourteenth Amendments of the U.S.
Constitution and Article I, Section 9 of the Pennsylvania
Constitution in forcing the Appellant to proceed despite
facing criminal charges brought by the Appellees with
regard to the instant matter?
3. Did the [t]rial [c]ourt err as a matter of law and abuse
its discretion by ordering a judgment of non-pros and
denying a petition to open that judgment based upon the
characterization of the Appellant’s main cause of action as
premature or non-existent?
4. Did the [t]rial [c]ourt err as a matter of law and abuse
its discretion by finding that a delay requested by
Appellee, Cohen would be prejudicial and in failing to
acknowledge Cohen’s attempts to conceal the instant
litigation from the New York State Bar and his insurer
when it found this prejudice?
Appellant’s Brief at 4.
This Court has stated that
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, 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. A petition under Pa.R.C.P.
3051 is the only means by which relief from a judgment of
non pros may be sought. . . . Finally, 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.
Bartolomeo v. Marshall, 69 A.3d 610, 613-14 (Pa. Super. 2013) (citations
omitted).
Pennsylvania Rule of Civil Procedure 3051 states, in relevant part:
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(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.
(b) Except as provided in subdivision (c),[7] if the relief
sought includes the opening of 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.
Note: See Rule 237.3 for special provisions
relating to relief from a judgment of non pros
entered pursuant to Rule 1037(a).
Pa.R.C.P. 3051(a)-(b).
Appellant first contends that the trial court subverted the rules of civil
procedure governing the commencement of an action and the filing of a
complaint by raising his failure to file a complaint sua sponte. Appellant’s
Brief at 11. He further asserts that relief should have been afforded to him
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7 Subdivision (c) to Rule 3051 pertains to the opening of the judgment of
non pros for inactivity as governed by Jacobs v. Halloran, 710 A.2d 1098
(Pa. 1998). Pa.R.C.P. 3051(c) & note. However, this case does not present
facts amounting to inactivity.
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under “the bright-line test of Pa.R.C.P. 237.3(b)(1).” 8 Id. at 14. No relief is
due.
Generally, the procedures for entering and seeking relief from a
judgment of non pros for the failure to file a complaint are set forth in
Pa.R.C.P. 237.1, 237.3, and 1037. Rule 1037 permits the defendant to have
the prothonotary enter a rule for the filing of a complaint. Pa.R.C.P.
1037(a). If the complaint is not filed within twenty days of the service of
the rule, the defendant may praecipe to have the prothonotary enter a
judgment of non pros. Pa.R.C.P. 1037(a). Rule 237.1 provides a procedural
safeguard against snap judgments under Rule 1037(a) by requiring the
defendant to include a certification that written notice of intent to file the
praecipe was mailed or delivered to the plaintiff. Pa.R.C.P. 237.1(a) & cmt.
Rule 237.3 provides that a petition for relief of judgment of non pros
entered pursuant to Rule 237.1 shall include a verified copy of the complaint
the plaintiff wishes to file. Pa.R.C.P. 237.3(a). Moreover, Rule 237.3
provides a bright-line rule requiring the trial court to open the judgment if
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8 Appellant cites to the current version of Rule 237.3(b)(1), which became
effective January 1, 2017. The differences between the current Rule
237.3(b)(1) and former version of Rule 273.3(b) are not material to this
appeal. Compare Pa.R.C.P. 237.3(b)(1) (“If the petition is filed within ten
days after the entry of a judgment of non pros on the docket, the court shall
open the judgment if the proposed complaint states a meritorious cause of
action”) (eff. Jan. 1, 2017) with Pa.R.C.P. 237.3(b) (“If the petition is filed
within ten days after the entry of the judgment on the docket, the court
shall open the judgment if the proposed complaint . . . states a meritorious
cause of action . . .”) (subsequently amended eff. Jan. 1, 2017).
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the petition is filed within ten days of the entry of the judgment and the
proposed complaint states a meritorious cause of action. Pa.R.C.P.
237.3(b); see also Simmons v. Luallen, 763 A.2d 810, 812 (Pa. 2000)
(“Although Rule 237.3 does not alter the law of opening judgments as
reflected in Rule 3051(b), it presupposes that a petition to open filed within
the ten-day period is timely or prompt and that a reasonable explanation or
excuse for the delay exists.”).
However, Rules 237.1(a) and 1037(a) apply when there is no
involvement by the trial court. See Pa.R.C.P. 237.1(a), 1037(a) (permitting
defendant to praecipe for rule and entry of judgment with the prothonotary).
Rule 237.1 does not apply when a judgment is entered by an order of the
court. Pa.R.C.P. 237.1(b)(1) (“This rule does not apply to a judgment
entered . . . by an order of the court[.]”). Because Rule 237.3 governs relief
from the entry of a judgment of non pros pursuant to Rule 237.1, see
Pa.R.C.P. 273.3(a), it follows that Rule 237.3 does not apply when a court
orders the entry of the judgment. Thus, Rules 237.1, 237.3, and 1037(a) do
not apply when the trial court enters a judgment of non pros. See Pa.R.C.P.
237.1(a), (b)(1), 273.3(a), 1037(a).
Instantly, Appellant commenced an action that proceeded to a
scheduled trial date. Appellant did not file a complaint until the day he
appeared for trial, and the court entered an order dismissing the action for
failure to file a complaint. Under these circumstances, we conclude that the
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trial court did not err in sua sponte considering whether Appellant’s failure to
file a complaint before the scheduled trial date was a basis for non pros. Cf.
Pa.R.C.P. 218(a) (“[w]here 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.”); see also Peters
Creek Sanitary Auth. v. Welch, 681 A.2d 167, 171 (Pa. 1996).
Accordingly, Appellant’s contentions that the trial court erred in raising the
issue of the failure to file a complaint or in refusing to open the judgment of
non pros under Rule 237.3(b) warrant no relief. See Pa.R.C.P. 237.1(a)-(b),
273.3(a), 1037(a).
Appellant next argues that the trial court erred in finding that the
delay in filing the complaint was not reasonable. He notes that there is “a
presumption of a compelling reason for delay . . . in cases awaiting
significant developments in the law.” Appellant’s Brief at 12 (citing Marino
v. Hackman, 710 A.2d 1108, 1111 (Pa. 1998)) (emphasis omitted).
Specifically, Appellant contends that his delay in filing a complaint was
justified by anticipated developments in the law, namely, the pending appeal
in Villani and the institution of criminal proceedings against him. Id.
The trial court noted that “if Appellant reasonably believed he had a
cause of action against the Appellees in this matter, it was incumbent upon
him to plead his case in a timely fashion.” Trial Ct. Op., 3/16/17, at 4.
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Furthermore, the court noted that Appellant attempted to have the matter
delayed, but was unsuccessful. Id. at 4-5. The court concluded:
Having failed to succeed in his attempts to persuade the
[c]ourt to delay the trial, it was not Appellant’s privilege to
simply wait and see if the prior litigation resolved itself
before trial and, if not, to file his complaint at the last
moment and demand that the case either proceed in a way
that would be prejudicial to the defendants or force the
[c]ourt to grant a continuance to remedy a situation that
Appellant himself deliberately brought about.
Id. at 5. We agree with the trial court.
Appellant’s complaint contained a single count for a violation of the
Dragonetti Act. It is well settled that
[t]he Dragonetti Act requires, in pertinent part, the
following elements to establish a cause of action under the
statute:
(a) Elements of action.—A person who takes part
in the procurement, initiation or continuation of civil
proceedings against another is subject to liability to
the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or
without probable cause and primarily for a
purpose other than that of securing the proper
discovery, joinder of parties or adjudication of the
claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of
the person against whom they are brought.
Freundlich & Littman, LLC v. Feierstein, 157 A.3d 526, 532 (Pa. Super.
2017) (quoting 42 Pa.C.S. § 8351(a)).
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Our review of Villani belies Appellant’s assertion that it constituted a
compelling reason for delaying the filing of his complaint. 9 In Villani, the
plaintiffs, the Seiberts prevailed in an underlying property action commenced
by Villani. Villani, 159 A.3d at 479. The Seiberts commenced a wrongful
use of civil proceedings action against Villani and her attorney for raising
frivolous claims during the property action. Id. The defendant-attorney
filed a preliminary objection asserting that the Dragonetti Act infringed on
the Pennsylvania Supreme Court’s constitutional authority to regulate the
conduct of lawyers. Id. at 480. The defendant-attorney thus argued
attorneys were immune from liability under the Dragonetti Act. Id. The
trial court sustained the defendant-attorney’s preliminary objection and
concluded, “The Dragonetti Act, as it pertains to lawyers, is unconstitutional
and unenforceable.” Id. at 484 (citation omitted). On June 15, 2016, the
Pennsylvania Supreme Court granted permission to appeal to consider the
following issue:
Did the trial court err when it held that the Dragonetti Act,
42 Pa.C.S. §8351 et seq., is an unconstitutional
infringement upon the Supreme Court’s authority to
regulate the conduct of attorneys under Article V, §10(c)
of the Pennsylvania Constitution such that attorneys are
immune from suit for Wrongful Use of Civil Proceedings?
Villani v. Seibert, 11 MM 2016 (Pa. June 15, 2016).
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9 Appellant did not raise the pending decision in Villani in his prior requests
to delay trial.
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Although Villani signaled a possible significant shift in the law
surrounding the Dragonetti Act, the impact on Appellant’s claims was more
limited. Specifically, Villani addressed the contention that the Dragonetti
Act was unconstitutional as applied to lawyers. See id. Villani could have
impacted the viability of Appellee’s actions against Appellee Law Firm and
Cohen. However, the question posed in Villani did not alter the
fundamental elements of his proposed Dragonetti Act claim or the viability of
his claim against the non-attorney Appellees.10
With respect to the ongoing criminal matter against him, we
sympathize with the apparent dilemma faced by Appellant. However, we
discern no basis to agree with his argument that the mere filing of a
complaint for a Dragonetti Act violation would require him to incriminate
himself. The focus of the pleading would be that Appellees, in the Icehouse
Action, acted “in a grossly negligent manner or without probable cause and
primarily for a purpose other than that of securing the proper discovery,
joinder of parties or adjudication of the claim” and that the Icehouse Action
was terminated in his favor. See 42 Pa.C.S. § 8351(a). Indeed, Appellant
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10 We note that the Pennsylvania Supreme Court decided Villani on April 26,
2017 and reversed the trial court. Villani, 159 A.3d at 493. The Court
concluded that the defendant-attorney in that case “failed to establish that
the Dragonetti Act clearly and palpably violates the Pennsylvania
Constitution, or that this Court should per se immunize attorneys, as
attorneys, from the application of the substantive tort principles
promulgated by the political branch in the Dragonetti Act.” Id. at 492-93
(footnote omitted).
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ultimately filed a complaint on the day of the trial and did not complain that
he was required to incriminate himself or expose himself to further criminal
sanctions.
Thus, the trial court did not abuse its discretion in determining that
Appellant’s conduct to “simply wait and see if the prior litigation resolved
itself” was unreasonable in light of the facts that a trial date had been set
and his previous attempts to seek extensions of time had failed. 11 See Trial
Ct. Op. at 5. Accordingly, Appellant’s second claim warrants no relief.
Appellant’s third claim suggests that his action was meritorious and
that the trial court failed to balance his Fifth and First Amendments rights
implicated in this case. First, because we conclude that Appellant’s petition
to open did not state a reasonable explanation for the delay, we need not
address whether there was merit to his underlying claim. See Pa.R.C.P.
3051(b); Madrid v. Alpine Mountain Corp., 24 A.3d 380, 384 (Pa. Super.
2011) (“Where a party fails to provide a reasonable excuse for the delay in
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11 Appellant has abandoned his prior assertion that it was reasonable to
delay filing his complaint based on developments in the Zoning Appeal. We
add, however, that following the October 29, 2015 remand from the
Pennsylvania Supreme Court, the Commonwealth Court, on July 12, 2017,
affirmed the trial court’s determination that Appellant lacked standing to
proceed in the Zoning Appeal. Scott v. City of Philadelphia, 154 C.D.
2013, 2017 WL 2960612 (Pa. Cmwlth. July 12, 2017) (unpublished
memorandum). Appellant filed a petition for allowance of appeal in the
Pennsylvania Supreme Court. Scott v. City of Philadelphia, 466 EAL 2017
(Pa. filed Dec. 17, 2017).
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prosecution of the underlying claim, a petition to open is properly denied.”).
Therefore, we decline to consider these issues.12 See Pa.R.C.P. 3051(b);
Madrid, 24 A.3d at 384.
Lastly, Appellant claims that the trial court failed to acknowledge that
Appellees proceeded with unclean hands and failed to establish prejudice.
Appellant’s Brief at 22. Appellant emphasizes that Appellees admitted they
did not demand a complaint be filed due to concerns regarding Cohen’s
admission to the New York bar and his malpractice insurance. Id.
Appellees respond that they had no obligation to urge the
advancement of Appellant’s action by seeking a rule to have a complaint
issued. Appellees further contend that its motives regarding Cohen did not
rise to the level of fraud or wrongdoing. Appellees conclude that prejudice
was established because they were forced to go to trial without pleadings.
We agree with Appellees.
In Jacobs, the Pennsylvania Supreme Court summarized the unclean
hands doctrine:
A party who seeks the equitable relief provided by the
entry of a judgment of non pros must do so with clean
hands. The doctrine of unclean hands is
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12 In any event, as noted above, Appellant proffered no basis to support his
claim that the filing of a complaint required him to incriminate himself.
Appellant’s further assertion that proceeding in the instant action was
necessary to vindicate his First Amendment rights with respect to the Zoning
Appeal goes to possible bases of the underlying claim.
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far more than a mere banalty. It is a self-imposed
ordinance that closes the doors of a court of equity
to one tainted with inequitableness or bad faith
relative to the matter in which he seeks relief,
however improper may have been the behavior of
the defendant. That doctrine is rooted in the
historical concept of court of equity as a vehicle for
affirmatively enforcing the requirements of
conscience and good faith. . . . Thus while ‘equity
does not demand that its suitors shall have led
blameless lives’ . . . as to other matters, it does
require that they shall have acted fairly and without
fraud or deceit as to the controversy in issue.
Jacobs, 710 A.2d at 1103 (citations omitted).
In Jacobs, the Court concluded that a defendant’s “dishonesty
regarding the identity of the driver of the vehicle [in a personal injury
action] constitutes bad faith which is directly relevant to the delay in [the]
prosecution from which she seeks relief.” Id. at 1103. In Mudd v. Nosker
Lumber, Inc., 662 A.2d 660 (Pa. Super. 1995), this Court determined that
a defendant who requested for a continuance misled the plaintiffs. Although
defendant requested the continuance for the apparent purposes of
negotiating a settlement agreement, the defendant used the additional time
to draft a motion for judgment of non pros. This Court refused to reward the
defendant for their tactics. Mudd v. Nosker Lumber, Inc., 662 A.2d 660,
664 (Pa. Super. 1995).
Instantly, Appellees’ failure to force Appellant to file a complaint does
not rise to the level of fraud or deceit as to the controversy at issue.
Appellees were under no obligation to invoke Rule 1037(a) to require
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Appellant to file a complaint. Moreover, Appellees did not manipulate the
court’s trial schedule or delay trial in order to strengthen their position for a
judgment of non pros. Although Appellees were prepared to seek a joint
continuance before trial, they ultimately acceded to the trial court’s strong
suggestion to move for non pros, which the court could have also entered on
its own accord. Accordingly, we agree with Appellees that their conduct or
ulterior motives did not rise to the level of unclean hands.
As to prejudice, this case stands in a somewhat unusual procedural
posture because the matter proceeded to a scheduled trial without a
complaint being filed until the day of trial. In the context of inactivity,
prejudice may be “established by the death or absence of a material
witness” or “any substantial diminution of a party’s ability to properly
present its case at trial.” Jacobs, 710 A.2d at 1103 (citation and quotation
marks omitted). Although Rules 218 and 3051(b) do not refer to prejudice,
“prejudice has traditionally been a consideration in all non pros cases.” See
Valley Peat & Humus v. Sunnylands, Inc., 581 A.2d 193, 196-97 (Pa.
Super. 1990) (en banc).
In each type of case, and in each unique factual situation,
the general considerations as espoused in the three part
test for the entry of a non pros judgment will be given
precise definition. While the element of prejudice may be
less important in Rule 218 cases, where it has been
determined that a plaintiff is not ready for trial without
satisfactory excuse, we believe that prejudice must still be
considered by the trial court prior to determining, as an
equitable matter, that the entry of a non pros judgment is
appropriate. To ignore this factor in balancing the equities
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in a non pros case, simply because the language of Rule
218 fails to mention prejudice explicitly, would amount to
an abuse of the trial court’s discretion.
Id. at 197. But see Peters Creek, 681 A.2d at 171 (noting that a party
who files an untimely answer must show just cause for the delay and that “it
is only after such a showing has been made that the trial court must require
the moving party to demonstrate prejudice resulting from the late
pleading”); Madrid, 24 A.3d 380, 384 n.4 (declining to consider prejudice
under Rule 3051(b)); Pa.R.C.P. 3051(c) & cmt. (noting 3051(c) alters
Madrid with respect to inactivity).
To the extent it is necessary to consider prejudice, the trial court found
that Appellant’s failure to file a complaint until the morning of trial resulted
in prejudice. We agree. Appellant was aware of the trial date and while all
parties sought a continuance, those requests were denied. The failure to file
a complaint is fundamental to the orderly administration of the judicial
process. The failure to do so until the morning of a scheduled trial presents
obvious concerns regarding Appellant’s readiness to proceed. Moreover,
Appellees had no meaningful opportunity to challenge or answer the
complaint and prepare a defense. Appellant’s bare assertion that no
prejudice resulted from the delay because Appellees did not act earlier to
force him to file a complaint does not establish an abuse of discretion on the
part of the trial court. Accordingly, we discern no basis upon which to
disturb the trial court’s balancing of the equities in this case.
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Order affirmed.
P.J.E. Bender Joins.
Judge Ott Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:12/22/2017
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