J-S53017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FESTUS KANDJABANGA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DREXEL UNIVERSITY : No. 3325 EDA 2017
Appeal from the Order September 15, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): July Term 2015, No. 01125
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 1, 2018
Festus Kandjabanga appeals, pro se, from the order entered September
15, 2017, in the Court of Common Pleas of Philadelphia County, denying
Kandjabanga’s petition for relief from non pros.1 The trial court had previously
granted Drexel University’s motion for non pros on July 24, 2017, when the
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 The cover sheet for the motion labels the document as a “Petition to Strike
Non Pros”, although the petition itself states, “Petition for Relief / To Open or
Strike Judgment of Non Pros”. A petition to strike is a common law remedy
that acts as a demurrer to the record. See Mumma v. Boswell, et al, 937
A.2d 459 (Pa. Super. 2007). A petition to open is an appeal to the equitable
powers of the trial court and has three requirements: the petition must be
timely, it must allege facts showing there is a reasonable explanation or
legitimate excuse for the conduct that gave rise to the entry of judgment, and,
it must allege facts showing there is a meritorious cause of action. See
Pa.R.C.P. 3051(b). Because there is nothing about the document that
indicates it is acting as a demurrer to the record, we believe the trial court
properly treated it as a petition to open the non pros.
J-S53017-18
trial court determined Kandjabanga was not prepared to proceed with the
scheduled jury trial. After a thorough review of the submissions by the
parties, relevant law, and the certified record, we affirm.
The underlying facts of this matter are difficult to discern as
Kandjabanga is not an attorney and has not set forth facts or claims in any of
his complaints, up to the most recent third amended complaint, in anything
resembling a cogent fashion. However, it appears that Kandjabanga is a
student at Drexel University studying either architecture or construction
management. The architecture program is not a full-time program and
Kandjabanga was accordingly allowed to take supplemental classes at the
Community College of Philadelphia (CCP), where he had apparently been
previously enrolled. When Kandjabanga sought to change from architecture
to construction management, a full-time program, Drexel required
Kandjabanga to take all his classes at Drexel. Kandjabanga appears to believe
this requirement breached a contract with Drexel, which had previously
allowed him to take classes for credit at CCP. Kandjabanga also appears to
believe the requirement was forced on him due to his racial heritage, although
there are no separate counts based upon this alleged discrimination.2
____________________________________________
2 We quote paragraphs 3-6 of Kandjabanga’s Third Amended Complaint:
3. Defendant [sic] was admitted in the University in Fall 2011 as
an Architectural Major which does not offer full time program.
-2-
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Relevant procedural history is provided by the trial court opinion, dated
May 22, 2018.
On June 16, 2017, the parties failed to arrive on time for their
scheduled pretrial conference. To avoid the appearance of
impropriety created by conducting separate pretrial conferences
in an ex parte fashion, this Court entered a pretrial order
scheduling this matter for a non-jury bench trial to take place on
July 24, 2017. Upon receipt of the pretrial order scheduling a non-
jury bench trial, [Kandjabanga] contacted chambers, forwarded
letters to chambers, and filed various pleadings in the above-
captioned matter challenging this Court’s decision to resolve this
dispute in a non-jury bench trial. [Kandjabanga] objected to the
fact that his jury demand had been struck and requested that his
matter be tried before a jury. This Court granted [Kandjabanga’s]
request to reconsider his jury demand, had ordered a jury panel
____________________________________________
4. On February 27, 2013, plaintiff wanted to switch[] from part
time architecture to full time construction program which is having
a benefit of co-op.
5. Plaintiff his [sic] tentative schedule for full time construction
management program was revoked on February 27, 2013 by
construction program manager Dr. Tsafos when he saw the color
of his skin by telling him that he is not qualified to be full time
student and he need 30 credits to come in his program as full time
student and most of his credits will not be accepted from part time
construction to full time.
6. The University decided to make plaintiff full time student in
construction program after plaintiff reported construction program
manager Dr. Tsafos to Provost Toni Torres around September
2013 for unequal treatment when Dr. Tsafos denied plaintiff an
Equal Education Opportunity to full time construction program
which is having a benefit of co-op but Dr. Tsafos later accepted all
of 100 credits for plaintiff to full time program.
Kandjabanga’s Third Amended Complaint, ¶¶ 3-6, January 17, 2017.
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J-S53017-18
for selection, and was prepared to commence with trial on July 24,
2017.
Unfortunately, [Kandjabanga] was not prepared to proceed with a
jury trial when this action was called to trial. For nearly two hours,
this Court asked [Kandjabanga] at least 19 times to demonstrate
that he understood how to conduct a jury trial and to show that
he was prepared to proceed. [Kandjabanga] failed to answer this
Court’s questions. He could not explain the basis of his contract
claim against Drexel, and he could not explain how he intended to
conduct jury selection, introduce evidence at trial or question
witnesses.
Trial Court Opinion, 5/22/2018, at 1-2.
Eventually, Drexel moved for non pros based upon Kandjabanga’s
demonstrated inability to proceed with a jury trial. The trial court granted
Drexel’s motion. Subsequently, Kandjabanga filed a timely petition to open
the non pros. However, the substance of that petition did not address the
requirements to open a non pros.3 Relevant to our resolution of this appeal,
the petition did not seek to explain why Kandjabanga was not prepared to
____________________________________________
3 Substantively, the petition is three paragraphs long. The first paragraph
addresses the trial court’s unilateral striking of Kandjabanga’s jury demand.
The record demonstrates this action was rescinded. The second paragraph
also addresses the rescinded non-jury order as well as a bald statement that
University President John Fry “gave Office of Civil Right false information when
they were investigating racial discrimination in 2014 which is a violation of the
terms of contract COP-4 improper conduct.” Petition to Open or Strike
Judgment of Non Pros at ¶ 2. The third paragraph again addresses the
rescinded non-jury order as well as a complaint that a prior judge in the matter
had committed misconduct. Our review of the record leads to the conclusion
that this refers to Kandjabanga’s assertion that the prior judge had improperly
denied Drexel’s preliminary objections and allowed the case to proceed.
-4-
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proceed with the jury trial he had requested and had been notified would begin
on July 24, 2017.
After the trial court denied Kandjabanga’s petition to open without
discussion, Kandjabanga filed the instant appeal.4 Accordingly, the only issues
properly preserved for review were those raised in the three-paragraph
petition to open.
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.
Pa.R.C.P. 3051(a) (emphasis added).
“A trial court's decision to deny a petition to open or strike a judgment
of non pros is scrutinized on the abuse of discretion standard of appellate
review.” Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super.
2011).
Here, Kandjabanga’s petition to open failed to set forth facts that
showed either a reasonable explanation for his failure to be prepared to
proceed to jury trial or that he had a meritorious cause of action. See Footnote
3, supra. We have reviewed the notes of testimony of July 24, 2017 and
must agree with the trial court that Kandjabanga demonstrated a singular lack
of knowledge or ability to proceed to jury trial. He had no concept of how to
pick a jury, no concept of what he had to prove to prevail, how to question a
____________________________________________
4The day after he filed his notice of appeal, Kandjabanga filed a 150-page
motion for reconsideration of the denial of the three-paragraph petition to
open. This motion was filed the day after Kandjabanga filed his notice of
appeal, and was properly denied by the trial court.
-5-
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witness or how to present evidence. The trial court offered him the
opportunity to proceed non-jury where a certain latitude for inexperience
might have been given. However, Kandjabanga rejected the opportunity,
apparently believing it was an effort to subvert his rights. Further, statements
such as his comments that University President John Fry had provided some
manner of false information to another entity, standing alone, provide no real
clue to a meritorious cause of action for breach of contract. Clearly, an
accusation that a different trial judge committed judicial misconduct by ruling
in Kandjabanga’s favor supports no cause of action at all.
Kandjabanga’s appellate brief is a model of incomprehensible allegations
and statements. We do not see how it relates to his petition to open.
Kandjabanga attempts to save his cause of action by labelling sections of his
brief “There is a reasonable explanation or legitimate excuse…”5 and “There is
a meritorious cause of action”6, but these arguments did not appear in the
petition to open and must be deemed waived. “Failure to file a timely or rule-
compliant petition to open operates as a waiver of any right to address issues
concerning the underlying judgment of non pros.” Madrid v. Alpine
Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011) (emphasis added).
Further, as the brief is a jumble of disjointed ideas and non sequitur, it
provides no support for relief.
____________________________________________
5 Section VI A.
6 Section VII C.
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Finally, even if Kandjabanga had preserved any issue, we would deny
relief based upon the sound trial court opinion of Judge John M. Younge, dated
May 22, 2018. This opinion details what transpired at the July 24, 2017 call
to trial and the efforts taken by the trial court to aid Kandjabanga, but which
ultimately led to the justified entry of non pros and the subsequent denial of
the petition to open. 7 The parties are directed to attach a copy of the trial
court’s May 22, 2018, opinion in the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/18
____________________________________________
7We do not believe that anything can adequately convey the nature of the
notes of testimony and 13,000+ page certified record in this matter.
-7-
Circulated 10/09/2018 02:44 PM
IN THE COURT OF COMMOM PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
FESTUS KANDJABANGA
July Tenn, 2015
No. 01125
v. 3325 EDA 2017
2703 EDA 2017
2705 EDA 2017
2489 EDA 2017
DREXEL UNIVERSITY
OPINION
Younge, J. May 22, 2018
I. Facts:
On June 16, 2017, the parties failed to arrive on time for their scheduled pretrial
conference. To avoid the appearance of impropriety created by conducting separate pretrial
conferences in an ex parte fashion, this Court entered a pretrial order scheduling this matter for a
non-jury bench trial to take place on July 24, 2017. Upon receipt of the pretrial order scheduling
a non-jury bench trial, the Plaintiff contacted chambers, forwarded letters to chambers, and filed
various pleadings in the above-captioned matter challenging this Court's decision to resolve this
dispute in a non-jury bench trial. The Plaintiff objected to the fact that his jury demand had been
struck and requested that his matter be tried before a jury. This Court granted the Plaintiff's
request to reconsider his jury demand, had ordered a jury panel for selection, and was prepared to
commence with trial on July 24, 2017.
Unfortunately, the Plaintiff was not prepared to proceed with a jury trial when this action
was called to trial. For nearly two hours, this Court asked the Plaintiff at least 19 times to
demonstrate that he understood how to conduct a jury trial and to show that he was prepared to
Kandjabanga Vs Drexel Unlver�ity·OPFLD
II I II I I I llll/111111111111111111
proceed. (Tr. Transcr. at 7, 9, 12, 13, 16, 17, 21, 32, 33, 37, 44, 45, 49, 60, 63, 69, 74, 75, 78
(July 24, 2018).) The Plaintiff failed to answer this Court's questions. He could not explain the
basis of his contract claim against Drexel, and he could not explain how he intended to conduct
jury selection, introduce evidence at trial or question witnesses.
Specifically, on July 24, 2017, foJJowing preliminary introductions, this Court explained
to the Plaintiff that he would need to demonstrate he understood how to conduct a jury trial
because the documents that he had filed with this Court were incoherent:
You subsequently indicated that you wanted to have a jury trial, which I am
perfectly willing to do that. However, you are proceeding prose. I must tell you
that [I have read] your settlement memo and your writing [is] fairly incoherent.
You have not the faintest idea what your cause of action is or how you intend to
prove it, and I will not subject a jury to that level of assault on their time unless you
can convince me that you have some way of understanding and understanding how
to go about prosecuting a jury trial.
(Id. at 4-5.) This Court further explained that it had ordered a jury panel and was prepared to
proceed to jury selection, "Anyone has the right to have a jury trial and to represent themselves if
they know what they're doing. You have no right to select-have 40 citizens come here and sit
here while you rant and rave. That is not what our system is." (Id. at 6-7.) This Court explained
that it could provide him "a great deal more latitude to express your point" in a non-jury trial, but
the Plaintiff would have to follow the rules of procedure ifhe wanted a jury trial:
So what I said, you have a lot more latitude in a non-jury case where the judge hears
the matter and makes a decision, but if you insist on having a jury trial, you must
adhere to all rules, regulations, civil procedure and all things that are inherent in the
conduct of a jury trial, which your lawyer would understand, but you don't have a
lawyer. You don't have to have a lawyer if you don't want to, but if you decide to
represent yourself, you must do the same thing as that gentleman there, and if you
are not able to do that, I will throw the case out.
(Id. at 9-10).
2
In response to the Court's inquiry, the Plaintiff first said he wanted to talk about the
pretrial conference. (Id. at 11.) Then, he asked what claims were left so he could form a
defense:
What do I have to do first before I have - I want to ask you a question. The
procedures, how do see what is resolved and what is not resolved so that I will be
able to formulate my defense.
(Id. at 13.) This Court explained he was not the defendant, and again told the Plaintiff that if he
wanted a non-jury trial, he would not have to do points for charge, voir dire, or even opening
statements. (Id. at 13-14.) Plaintiff then asked this Court to tell Drexel to provide a definite
statement regarding affirmative defenses, and he argued that Drexel had a duty to report the
Honorable Nina Wright Padilla to the Board of Judicial Conduct because she prejudiced him by
overruling Drexel's preliminary objections:
My question, you know, like different than he used affirmative defense on his
answers without evidentiary support. I requested him -- I want him to give a
definite statement to his affirmative defense. He refused to do that. He told me
that I will not win by merit. I requested him to give a definite statement, because
the previous time when I am here for more than two years the court made an error
of law or legal error when Honorable Judge Padilla Wright overruled the motion
for preliminary objection, dismissed it without prejudice so that I can cure my
Complaint, and then I will have been excused for now if that error of law was not
happen. The lawyer has a duty to report the judge when he find out that there is
something which is not legal. Now, the lawyer fail to report that to prevent a delay;
and number two.
(Id. at 15.) This Court told Plaintiff he needed to put on his case, not affirmative defenses. (Id.
at 15-16.) The Plaintiff responded by talking about the motion for summary judgment. (Id. at
17 .) This Court again told Plaintiff:
[Y]ou have to convince me that you have some understanding of how to go about
picking a jury, prosecuting a case, and taking the case to conclusion before a jury.
If you don't have that, then I am going to say to you I can't allow you to do that. I
can give you a Jot more leeway in front of a judge but not before a jury if you don't
know what you're doing.
3
(Id. at 18.) Instead, Plaintiff asked if he had a right to an attorney and returned to talking about
Judge Wright Padilla making an "error of law" because she overruled Drexel 's preliminary
objections and that Drexel should have reported her to the Board of Judicial Conduct. (Id. at 21 -
29.) Then, he asked this Court to reconsider its motion for sanctions against Drexel for not
reporting Judge Padilla Wright to the Board of Judicial Conduct. (Id. at 31-32.)
At this point in the proceeding, the Plaintiff had still failed to present a coherent
explanation of his case, and this Court expressed its concern when it stated, ''I don't understand
why you're suing them. Drexel says according to counsel for Drexel that you're welcome to
come back. You have not been dismissed. I don't know what you're trying to get." (Id. at 32.)
When this Court asked the Plaintiff to explain "what is the contract that you're talking
about and how was it breached," he responded:
MR. KANDJABANGA: Your Honor, these things were already educated in the
Common Court, and now when you bring it to me, I was not expecting this to ask
me the same ...
THE COURT: Mr. Kandjabanga, we're here for trial. This is the time you're
supposed to say that. What do you mean you weren't expecting to bring forward
your case? This is when you bring forward the case at trial.
MR. KANDJABANGA: But we were already passed that. I was not -- we were
supposed to hold a pretrial conference first so that we can discuss that to see what
is the result and what is not the result.
THE COURT: That is not what we were supposed to do. What we were supposed
to do at the pretrial conference is to schedule it for trial, I scheduled it for trial.
Here we are.
(Id. at 32-33.) This Court stated: "We're here for trial. You are supposed to be ready. You are
not ready." (Id at 35.) Mr. Kandjabanga simply had no idea how to select a jury or how to
prosecute his case:
MR. KANDJABANGA: I wrote -- I wrote it down. When we came to the jury, I
think if they came, you tell us these are the jury. If there will be no instructions, it
will be hard for me, but if you tell me that this is a jury and then we pick, and that
will start. If it is not a statute, or if you will not a1low it if there is a law which says
4
that we are not allowed to tell you these are the jury. Ifthere is a law which prevent
you from doing that, that's fine, but I know ...
(Id. at 46.) This Court advised him again:
I will tell you again, Mr. Kandjabanga, if you would like to have a non-jury case, I
can send your case to another judge on another day for a nonjury. If you insist on
having a jury trial, I cannot allow you the way you are performing to attempt to do
a jury , . . I've been talking to you for an hour now. You haven't followed one
thing that I've talked about.
(Id at 46, 49.) This Court stated on the record:
I am of the opinion having heard you speak now, you are incompetent to handle a
jury trial. I will not impose that on 40 of our fellow citizens to make them sit and
listen to you go ... on and on ... not answering questions, not attending to the court's
orders, not following what the court's directions are. I cannot allow that to happen.
(Id at 48.)
In response, the Plaintiff stated: "l'm confused because today to me, I don't know if it's a
jury trial, pretrial conference or a settlement." (Id at 51.) The Plaintiff questioned whether he
objected to a non-jury trial: "When was that? I objected not to have a jury? When was that? It's
new to me." (Id at 52.) After over an hour, this Court stated: "We are here for a jury trial today.
You are not prepared for a jury trial. (Id. at 62.) Nonetheless, the Plaintiff continued to talk
I)
about the pretrial orders (Id. at 62-63), to which the Court advised him that it would dismiss the
case if he insisted on a jury trial:
If we are going to proceed on a jury trial, you don't know how to proceed on a jury
trial, I am going to invite a motion from the defense and I will grant that motion
and dismiss this matter. You can't stay focused on one thought. You don't know
anything about selecting a jury. You don't know anything about how to present
your case. I have continued to say that you're entitled to a non-jury trial and the
judge will give you a lot more leeway, but you insist that that's not what you want.
If you insist on that, then I am going to have to grant a motion for non-pros, which
is that you're not capable of prosecuting the case.
(Id. at 641 67.)
5
Drexel then moved for entry of a judgment of non-pros, which this Court held under
advisement. (Id. at 69.) The Court explained to Plaintiff:
A motion for non-pros; that is, for failing to prosecute the case is appropriate where
the plaintiff is not prepared to go forward.
(Id. at 69.) Mr. Kandjabanga still could not demonstrate that he would be able to proceed with
jury selection when this Court asked:
Mr. Kandjabanga, for the 18th or 19th time, I scheduled a non-jury case. I told you
why. You protested, I granted your reconsideration and allowed you to have a jury
trial. I said I have ordered a jury panel. We are ready to go. We are ready to give
you a jury trial. You are not ready to go to a jury trial.i. Under the Rules of Civil
Procedure, Mr. Kandjabanga, you are required to know how to proceed. If you
cannot proceed on a jury trial, counsel has filed a motion to non-pros, that is, to
non-prosecution. You are not proceeding. Because you are not proceeding, I have
to grant that motion. I don't want to grant that motion, but you keep insisting that
you want a jury and nothing but. If you want a jury and nothing but a jury, then
you have to proceed on the case, and you don't know how to do that.
(Id. at 75-76.) After giving the Plaintiff a final opportunity to proceed non-jury because he was
not prepared to have a jury trial, the Plaintiff insisted on a jury trial. (Id. at 85.) This Court
granted the motion and dismissed the case. (Id.) On July 25, 2017, this Court entered its Order
dismissing the case for lack of prosecution. The Plaintiff filed a petition to open the judgment of
non-pros which this Court denied.
II. Issues:
The Plaintiff filed four separate appeals to the Superior Court from the entry of the
judgment of non-pros. Prior to filing these appeals, on August 25, 2017, he filed a petition to
open the judgment of non-pros. After this Court denied his petition to open the judgement of
non-pros, the Plaintiff filed a motion to reconsider entitled Plaintiff's Petition for
Reconsideration to Open Non-Pros Judgment and Memorandum ofLaw (Oct 13, 2017). This
motion to reconsider was one hundred and fifty (150) pages long and raised numerous
6
allegations of error made by this Court in entering the judgment of non-pros and in dismissing
his case. The Plaintiffs petition for reconsideration was promptly denied.
Despite the fact that this Court never requested a concise statement of matters
complained of on appeal, the Plaintiff filed a 1925(b) concise statement of matters complained of
on appeal that was thirty-seven (37) pages in length. This 1925(b) statement contained forty-
eight (48) paragraphs each alleging a separate error made by this Court in dismissing the above-
captioned matter, and a memorandum of law which further clarified the allegations of error made
against this Court. Rufe 1925(b) Statement ofPlaintiff/Appel/ant's Matters Complaint of on
Appeal (Oct 30, 2017).
Following the entry of the judgment of non-pros, the Plaintiff filed documents with this
Court that were repetitious and voluminous in nature. From a practically stand point, it would be
illogical to quote verbatim what amounted to literally hundreds of pages of text filed by the
Plaintiff alleging various errors made by this Court. At the risk of mischaracterizing the issues
that the Plaintiff intends to pursue on appeal, this Court wil1 summarize the issues raised by his
various filings as follows:
• The trial court erred when it shuck the jury without proper legal basis.
• The trial court erred when it based its decision to strike the jury on the Plaintiff's inability
to pick a jury.
• The trial court violated the code of judicial conduct when it violated the Plaintiffs
constitutional right to a jury trial and said misconduct should be reported to the Board of
Judicial Misconduct.
• The judge who handled the pretrial motions committed judicial misconduct when she
overruled preliminary objections and should be reported to the Board of Judicial
Conduct.
• The trial court and defense counsel erroneous foiled to report the misconduct committed
by the pretrial motion judge to the Board of Judicial Misconduct.
• Judicial misconduct occurred in the handling of pretrial motions and in the act of striking
the jury.
• The trial court erred when contacted security and the Philadelphia Sheriffs Department
after the Plaintiff became emotional during the July 24, 2017 hearing.
7
• The Court committed judicial misconduct when it fabricated the transcript of the judicial
proceedings that occurred on July 24, 2017.
III. Standard: Pennsylvania Rule of Civil Procedure 3051:
(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), 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.
Pa. R.C.P. No. 305 I. Kruis v. Mckenna, 790 A.2d 322, 324 (Pa. Super. Ct. 2001) (quoting
Macsintosh-Hemphill Intern., Inc. v. Gulf & Western, Inc., 679 A.2d 1275, 1278-79 (Pa. Super.
Ct. 1996).
IV. Discussion:
The Plaintiff was completely unprepared to proceed when this matter was ca11ed to trial;
therefore, this Court entered a judgment of non-pros. The Plaintiffs lack of preparation was
such that he did not understand how to select a jury to hear the matter. Furthermore, he was
unable to explain basic facts in support of his theory that Drexel breached its contract with him.
This Court went on to deny his petition to open the judgment of non-pros and his subsequent
motion for reconsideration because the Plaintiff was unable to satisfy the second two elements of
the above-referenced tripartite test. First and foremost, he was unable to demonstrate a
reasonable explanation or legitimate excuse for being unprepared for the trial that was scheduled
to take place in this matter. Second, he failed to establish that the above-captioned matter had
any merit-he could not even coherently discuss the operative facts in support of his alleged
breach of contract action.
A major theme that ran throughout the documents filed by the Plaintiff following entry of
the judgment of non-pros was the argument that this Court erred when it struck the Plaintiff's
8
jury demand; however, this argument is critically flawed. This Court did not strike the Plaintiffs
jury demand. Quite to the contrary, this Court had ordered a jury panel and was prepared to
commence jury selection on July 24, 2018. This Court entered a judgment of non-pros because
the Plaintiff was not prepared to proceed with jury selection and to jury trial.
No judicial misconduct occurred in entering the judgment of non-pros, and this Court saw
no judicial misconduct or ethical violation committed by other members of the judiciary. This
Court would have reported any instances ofjudicial misconduct to the appropriate governing
body if it had witnessed such ethical violations. In terms of the accuracy of the transcript, this
Court reviewed the transcript from the July 24, 2018 proceedings and saw no discrepancy. The
transcript accurately described what occurred and was not fabricated. The transcript clearly
shows that this Court contacted security and the Philadelphia Sheriffs Department in response to
the Plaintiffs emotional behavior. Without further explanation, this Court feels that due to the
Plaintiffs irrational behavior and incoherent speech, it was justified in contacting security.
1. The Plaintlff Cannot Provide a Reasonable Explanation or Legitimate Excuse for
Not Being Prepared for Trial.
Plaintiff cannot satisfy the second prong of Pa. R.C.P. 3051 because: (l) Plaintiffs
Petition does not provide any "reasonable explanation or legitimate excuse" for his lack of
preparation; and (2) Plaintiff's prose status does not relieve him of his obligation to be prepared.
Pa. R.C.P. 218 permits a trial court to enter judgment of non-pros if a plaintiff is not prepared for
trial. It states that when 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.
As set forth above, the July 24, 2017 transcript clearly demonstrates the Plaintiff was
completely unprepared and had no understanding of how to proceed with a jury trial. This Court
9
gave the Plaintiff at least 19 opportunities to explain his case and how he would proceed. The
Plaintiff continued to argue with this Court about the pretrial conference, he asked what claims
were left in the case, and he asked Drexel to provide a definite statement regarding its
affirmative defenses. The Plaintiff talked about reporting Judge Padilla Wright to the Board of
Judicial Conduct for overruling preliminary objections, he talked about the motion for summary
judgment, he asked the Court to reconsider the motion for sanctions against Drexel, and he asked
if he had a right to an attorney. (Exhibit 6, July 24, 2017 Tr. at 11, 13-17, 21-29, 62-63.) At one
point, the Plaintiff questioned whether he objected to a non-jury trial. (Id. at 52.) This Court
repeatedly advised the Plaintiff that he was there for a trial and he needed to be ready. (Id. at
35.) The Plaintiff responded: "I'm confused because today to me, I don't know if it's a jury trial,
pretrial conference or a settlement." (Id. at 51.)
The Plaintiffs pro se status does not excuse him from compliance with the rules of
procedure or otherwise being prepared to proceed with a jury trial. The Superior Court stated,
"The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is
it a license not to comply with relevant rules of procedural and substantive law." Jones v.
Rudenstein, 585 A.2d 520, 522 (Pa. Super. Ct. 1991) (quoting Farella v. California, 422 U.S.
806, 834 n.46 (1975).) See also Commonwealth v. Abu-Jamal, 555 A.2d 846, 852 (Pa. 1989)
(pro se litigant "is subject to the same rules of procedure as is a counseled defendant; he has no
greater right to be heard than he would have if he were represented by an attorney"); Vann v.
Unemployment Compensation Bd ofReview, 494 A.2d I 081, I 086 (Pa. 1985) ("any layperson
choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the
risk that his Jack of expertise and legal training will prove his undoing.")
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In Jones, 585 A.2d at 522, the Court entered judgment of non-pros against a pro se
litigant who failed to appear at a hearing without excuse. The court wrote, "Appellant apparently
labors under the false assumption that by proceeding pro se he is absolved of all responsibility to
comply with procedural rules, and that the appellee and/or the court had some affirmative duty to
waJk him through the procedural requirements, or to ignore the procedural requirements, in order
to reach the merits of his claim. Such is not the case." In Passalacqua v. Passalacqua, 52 Pa. D.
& C.4th 38, 45 (Pa. Ct. Comm. Pl. Carbon Cnty. 2002), the court entered judgment of non-pros
against a prose litigant who "fail] ed] to allege any facts explaining why he failed to comply with
the court's order of April 11, 2001.,,
The Plaintiff's prose status did not absolve him of his responsibility to be prepared for a
jury trial. Although the Court offered the Plaintiff the opportunity for a non-jury bench trial, he
rejected it outright, and was totally unprepared to proceed to conduct a jury trial. The Plaintiff
had no reasonable explanation or legitimate excuse, for his behavior, and this Court properly
entered judgment of non-pros under Pa. R.C.P. 218. The Plaintiff's Petition does not contain
anything that constitutes a reasonable explanation or legitimate excuse for his lack of
preparation. To the contrary, Plaintiff's Petition is consistent with the July 24, 2017 transcript in
which he did everything but demonstrate he was prepared.
2. Plaintiff Failed to Establish a Meritorious Cause of Action.
Plaintiff cannot satisfy the third prong of the tripartite test requiring that he show that he
has a meritorious cause of action. The Plaintiffs petition to open the judgment of non-pros did
not even attempt to address the third prong of this tripartite test. The Plaintiff was unable to
explain the factual basis for his alleged breach of contract action when queried during the July
24, 2017 hearing. He did nothing to rectify this problem when he filed his petition to open the
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judgment of non-pros. Without some explanation, the Plaintiff failed to establish that a
meritorious cause of action exists.
3. Motion to Reconsider,
On October 13, 2017, the Plaintiff filed a motion to reconsider which attacked the entry
of the judgment of non-pros and the denial of his petition to open the judgment of non-pros. The
Plaintiff's motion to reconsider did nothing to rectify the initial problem with the Plaintiffs case.
The fact remains that the Plaintiff was unprepared to proceed when this matter was called to trial.
The Plaintiff then filed a petition to open the judgment of non-pros that failed to establish two of
the necessary elements in the tripartite test for assessing whether to open a default judgment.
V. Conclusion:
For the above-reasons, this Court denied the petition to open the judgment of non-pros
filed by the Plaintiff.
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