J-S34019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN A. BELFIORE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRUCK TRAINING TECHNOLOGY, : No. 342 WDA 2022
INC., STEPHEN KRIZAN
Appeal from the Order Entered March 10, 2022
In the Court of Common Pleas of Beaver County
Civil Division at No. 12561 of 2006
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: OCTOBER 21, 2022
John A. Belfiore (Appellant) appeals from the order, following this
Court’s remand,1 which denied Appellant’s request to open the order
terminating his case against Truck Training Technology, Inc. (TTT), and
Stephen Krizan (Krizan)2 (collectively, Defendants), pursuant to Pennsylvania
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* Retired Senior Judge assigned to the Superior Court.
1See Belfiore v. Truck Tech. Training, Inc., 258 A.3d 549 (Pa. Super.
2021) (unpublished memorandum).
2 Krizan was listed as a defendant in the underlying cause of action and in all
trial court filings including the most recent notice of appeal. Krizan and TTT
were both represented by Matthew Huffines, Esquire (Attorney Huffines),
throughout the underlying proceedings. However, Attorney Huffines has filed
a motion to quash and appellate brief listing TTT as the sole appellee. Our
later Court filings omit Krizan as a party. Because the omission of Krizan as
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Rule of Judicial Administration 1901. See Pa.R.J.A. 1901 (Rule 1901)
(termination of inactive cases). Defendants have filed a motion to quash this
appeal as improperly and untimely filed. Upon review, we deny Defendants’
motion to quash and affirm the trial court’s order.
In a prior appeal, this Court recounted the history of the parties’
litigation as follows:
Beginning in 2002, Appellant was employed as an instructor at
TTT. At some point in 2007, Appellant and Mr. Krizan reached an
oral agreement, wherein Appellant would purchase TTT from Mr.
Krizan over the course of time, for a total purchase price of
$300,000.00. Appellant made an initial payment of $98,715.00,
which entitled him to receive 32.9% of the net income of the
business.
On September 11, 2008, Appellant filed a civil complaint against
[Defendants] alleging that he had been locked out of financial
matters and physically prevented from entering the business.
Appellant’s complaint set forth one count for breach of contract
and one count seeking an action for accounting. Complaint,
9/11/08, at ¶¶ 16-22. On October 27, 2008, [Defendants] filed
an answer, new matter, and a counterclaim. Appellant filed a
reply to new matter and answer to the counterclaim on November
21, 2008.
On February 16, 2011, the trial court filed a notice of proposed
termination of the case due to docket inactivity. On April 18,
2011, [Defendants] filed a statement of intention to proceed with
the counterclaim.
On August 15, 2012, Appellant filed a certificate of service
reflecting that on June 15, 2012, he served upon [Defendants] his
first set of interrogatories and request for production of
documents. On October 16, 2012, Appellant filed a motion to
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a party appears to be an oversight, we have corrected the caption to include
him as an appellee.
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compel answers to interrogatories and responses to requests for
production of documents, which the trial court granted that day.
On July 15, 2015, pursuant to Pa.R.J.A. 1901, the trial court
entered an order presenting its own motion to terminate the case
with prejudice because the matter had been inactive for an
unreasonable period. Appellant’s counsel filed a motion
requesting a hearing date on the motion to terminate. On August
13, 2015, the trial court entered a detailed order directing that
the case would not be terminated. In addition, the order of August
13, 2015, set forth specific deadlines for the completion of
discovery, filing of dispositive motions, filing of responses to any
dispositive motions, oral argument on said motions, and a pretrial
conference date. Thereafter, no activity appeared on the docket
until [Defendants’] counsel filed a motion to withdraw on
December 28, 2017. The trial court granted the motion to
withdraw on December 28, 2017, and directed [Defendants] to
obtain new counsel within thirty days. No further action was
taken.
On July 28, 2020, the trial court, sua sponte, again entered an
order presenting its own motion to terminate the case with
prejudice because the matter had been inactive for an
unreasonable period under Pa.R.J.A. 1901. On August 10, 2020,
Appellant filed a motion for a hearing, which the trial court granted
that day. The trial court held a hearing on August 25, 2020. At
the conclusion of the hearing, the trial court entered an order
terminating the case due to inactivity pursuant to Pa.R.J.A. 1901.
On September 3, 2020, Appellant filed a motion for
reconsideration, which the trial court denied ….
Belfiore, 258 A.3d 549 (unpublished memorandum at 1-3).
On appeal, this Court reversed the trial court. See id. (unpublished
memorandum at 9). Applying our Supreme Court’s decision in Shope v.
Eagle, 710 A.2d 1104 (Pa. 1998), we remanded for the trial court to
determine whether Defendants had suffered prejudice warranting dismissal
under Rule 1901. Belfiore, 258 A.3d 549 (unpublished memorandum at 9).
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In accordance with this Court’s directive, the trial court conducted
hearings on November 15 and 24, 2022, limited to the issue of prejudice. On
February 23, 2022, the trial court filed its opinion and order finding that
Appellant’s undue delay caused Defendants actual prejudice warranting
termination of Appellant’s action under Rule 1901.
On March 10, 2022, Appellant filed a “Motion for Reconsideration,” which
was inaptly captioned, as Appellant sought to open the trial court’s order
terminating the case.3 See Motion, 3/10/22, ¶ 12 (requesting the court
“afford the parties a reasonable opportunity to review documents” presented
at the November hearing); see also Pa.R.C.P. 3051 (relief from judgment of
non pros). The trial court denied Appellant’s motion that same day. Order,
3/10/22. On March 22, 2022, Appellant filed a notice of appeal. Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Defendants have filed a motion to quash, claiming Appellant untimely
and improperly filed his notice of appeal from the trial court’s order denying
“reconsideration.” Motion to Quash, 6/1/22, ¶ 7. Defendants assert the
“February 2[3], 2022 Order terminated the case due to inactivity[.]”
Appellees’ Brief at 14.
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3 See Pa.R.C.P. 126 (providing that rules “shall be liberally construed[,]” and
“[t]he court at every stage of any such action or proceeding may disregard
any error or defect of procedure which does not affect the substantial rights
of the parties.”).
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As stated above, Appellant incorrectly captioned his petition to open as
a motion for reconsideration. “[A] trial court’s [] order denying a petition to
open and/or strike a judgment of non pros is immediately appealable as of
right pursuant to Pa.R.A.P. 311(a)(1) (stating orders refusing to open, vacate
or strike off judgment are appealable as of right).” Sabella v. Milides, 992
A.2d 180, 184 (Pa. Super. 2010) (quotation marks omitted). Thus, Appellant’s
appeal, filed within 30 days of the trial court’s February 23, 2022 and March
10, 2022, orders, is timely. See Pa.R.A.P. 903 (requiring notice of appeal to
be filed within “30 days after the entry of the order from which the appeal is
taken.”). We therefore deny Defendants’ motion to quash.
Appellant presents the following issues:
I. Did the trial court abuse its discretion in failing or refusing to
apply the actual prejudice test in entering judgment of non pros,
terminating [Appellant’s] cause of action for lack of docket
activity?
II. Did the trial court abuse its discretion in refusing to consider
late discovered evidence offered by [Appellant]?
Appellant’s Brief at 3 (most capitalization omitted).
“The question of whether an action has been properly terminated
pursuant to Pa.R.J.A. 1901, or its local rule counterpart, rests within the
discretion of the trial court and will not be disturbed absent an abuse of that
discretion or an error of law.” Tucker v. Ellwood Quality Steels Co., 802
A.2d 663, 664 (Pa. Super. 2002) (internal citations omitted). “An abuse of
discretion may not be found merely because an appellate court might have
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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 Financial, Inc., 134 A.3d 1079, 1095
(Pa. Super. 2016).
Rule 1901 reflects the general policy of this Commonwealth to promote
the prompt completion of litigation. Golab v. Knuth, 176 A.3d 335, 340 (Pa.
Super. 2017). Pursuant to Rule 1901, “[w]here a matter has been inactive
for an unreasonable period of time, the tribunal, on its own motion, shall enter
an appropriate order terminating the matter.” Pa.R.J.A. 1901(a). Moreover,
“each court of common pleas is primarily responsible for the implementation
of the policy expressed in subdivision (a) of this rule and is directed to make
local rules of court for such purposes applicable to the court and to the
community court....” Pa.R.J.A. 1901(b).
Appellant first claims the trial court abused its discretion by refusing to
apply the “actual prejudice” test in terminating his cause of action for lack of
docket activity. Id. at 11. Appellant references Krizan’s September 17, 2015,
deposition testimony, states Appellant “paid the purchase price for
approximately one third of the company, approximately $100,000, that he
had a copy of the written agreement for the sale, and that he had a copy of
the check by which payment was made.” Id. at 13. Appellant then directs
our attention to Krizan’s testimony that he was unable to locate the check for
the purchase price, and points out Krizan’s inability to locate the check was
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not prejudicial, as the check would have been retained by the bank. Id. at
14.
Appellant also disputes that Krizan’s inability to locate prior employees
causes prejudice, as those employees “did not have knowledge of the terms
of the sale.” Id. at 13. According to Appellant, “the trial court significantly
limited the amount and type of evidence [Appellant] could present for the
record.” Id. at 14. Finally, Appellant asserts the trial court “would not look
to the source of negative facts for [Defendants].” Id.
Defendants counter that they “put forth two different defenses” to
Appellant’s allegations of breach:
1) Appellant breached the contract between the parties by
neglecting work, disparaging the business causing loss [sic]
business opportunities, and converting business property; and 2)
[Defendants] paid what was owed under the contract to Appellant
or in the alternative [Defendants] should be credited with
payments made to Appellant.
Appellees’ Brief at 20 (citations omitted). Defendants emphasize the trial
court’s finding of prejudice based on, inter alia, Krizan’s inability to remember
key facts that would support these defenses. Id. at 20-21.
As we previously observed:
The Note to Rule 1901 supports the conclusion that prejudice is
required before a case is terminated for inactivity. The Note states
that the rule has no effect on the substantive law. The substantive
law prior to the promulgation of Rule 1901 required that the
adversary be prejudiced by the delay before a case
is dismissed for inactivity. James Bros. Lumber Co. v. Union
Banking & Trust Co., 432 Pa. 129, 132, 247 A.2d 587, 589
(1968). This requirement continues in effect notwithstanding the
enactment of Rule 1901. We therefore conclude that
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prejudice is required before a case is dismissed for
inactivity.
Belfiore, (unpublished memorandum at 7) (emphasis added) (quoting
Shope, 710 A.2d at 1107-08). Accordingly, we reversed the trial court’s prior
order and remanded solely for the court’s consideration of whether Appellant’s
delay caused Defendants prejudice. Id. (unpublished memorandum at 9).
Prejudice may be established “by the death or absence of a material
witness.” Jacobs v. Halloran, 710 A.2d 1098, 1103 (Pa. 1998). This Court
has defined prejudice as “any substantial diminution of a party’s ability to
properly present its case at trial.” Metz Contracting Inc. v. Riverwood
Builders, Inc., 520 A.2d 891, 894 (Pa. Super. 1987); accord Jacobs, 710
A.2d at 1103.
Instantly, the trial court found that Defendants were prejudiced by
Appellant’s delay. The court explained:
The defendants bear the burden of proof of establishing
actual prejudice in a Rule 1901 Termination situation. See
Shope, 551 Pa. at 366-67, 710 A.2d at 1107-08[;] Jacobs[,] 551
Pa. [at] 358, 710 A.2d [at] 1103 …. Defendants have presented
evidence of actual prejudice here. First, defendant Stephen Krizan
testified that his memory of events has faded due to the passage
of 14 years (between 2007 and 2021) since the events in
question. For example, Krizan testified that he cannot remember
the underlying events without reference to the Complaint (see Tr.,
Vol. I, p. 10 and Vol. II, p. 10). Also, Krizan testified that he
cannot remember when [Appellant] bought shares in the company
and when [Appellant] started as a shareholder (see Tr., Vol. I, p.
15). Krizan stated that his recollection of these events is
important because the shorter period during which [Appellant]
was a shareholder, the less that the [sic] would be owed. (See
Tr., Vol. I, p. 17).
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Further, Krizan testified to a complete lack of recollection of
witnesses to events important to his defense of [Appellant’s]
claims (See Tr., Vol. I, pp. 21-22). He further testified that he
cannot remember details and the names of witnesses pertinent to
the defense of whether money is owed to [Appellant], and if so,
what amount. (See Tr., Vol. I, pp. 23-25).
A review of the discovery deposition transcript of the
testimony of Krizan, included in the record as Exhibit A to the
hearing, reveals that Krizan testified to a lack of recollection of
important events numerous times. This was separate and apart
from his hearing testimony of November, 2021.
In light of this testimony, the [c]ourt looks to the decision
of the Pennsylvania Superior Court in American Bank and Trust
Co. of Pennsylvania v. Ritter, Todd and Haayen, 274 Pa. Super.
285, 418 A.2d 408 (1980). In that case, the Superior Court held
that prejudice can be based upon any substantial diminution of a
defendant’s ability to present factual information based upon lack
of memory due to plaintiff’s delay. Id. at 288-89, 418 A.2d at 410.
The delay in American Bank and Trust Co. v. Pennsylvania was
only five years; whereas, the delay here is 14 years. Moreover,
the [c]ourt acknowledges that the American Bank case involved
a judgment of non pros and not a Rule 1901 Termination, but it
must be remembered that the Shope Court determined that the
same three[-]part test applicable to non pros situations is applicable
to Rule 1901 dismissals. [Shope,] 551 Pa. at 367, 710 A.2d at 1107-
08.
Next, [D]efendants presented testimony/evidence of lost or
missing documentary evidence necessary to the defense, including
missing or lost accounting books (see Tr., Vol. I, p. 26), business
documents (see Tr., Vol. 1, pp. 29-30) and mail (see Tr., Vol. I, p.
31). Krizan also testified to the importance of these documents to
his defense. (See Tr., Vol. I, pp. 28-29, 30, 31 and 36). The
American Bank case is again instructive because the Superior
Court found missing documents (audit records) to be a basis for
prejudice. Id. at 289, 418 A.2d at 410. Lost documentary evidence
was also found to be a relevant ingredient to prejudice in Kennedy
v. Bulletin Co., 237 Pa. Super. 66, 70, 346 A.2d 343, 345-46
(1975) (a five and one-half year delay in a non pros case).
Third, Krizan testified to his lack of memory as to when
certain potential witnesses worked at defendant [TTT] and that he
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had no business documents available to reconstruct this. (See
Tr., Vol. I, pp. 33-37). Krizan also testified to the death of a
former material witness employee. (See Tr., Vol. I, pp. 35-36).
The inability to call and produce witnesses due to the delay
constitutes prejudice. Shope, 551 Pa. 368, 710 A.2d at 1108;
Kennedy, 237 Pa. Super. at 70, 346 A.2d at 345.
Fourth, defendant Krizan testified that [TTT] is no longer in
business/operation, and cannot indemnify him in the event a
judgment would be entered against him. This was found to be a
valid basis for prejudice in Kennedy, 237 Pa. Super. 15 70, 3436
A.2d at 345-46.
In sum, the [c]ourt finds that there is now ample evidence
of record to substantiate a finding of the third prong of the Rule
1901 dismissal standard, namely actual prejudice.
Trial Court Opinion, 2/23/22, at 2-4. The trial court’s findings are supported
in the record, and we discern no abuse of discretion by the trial court in finding
prejudice. See id.; see also Tucker 802 A.2d at 664.
In his second issue, Appellant argues the trial court abused its discretion
by refusing to consider his “late discovered” evidence. Appellant’s Brief at 15.
Appellant asserts that after the November 15 and 24, 2021, remand hearings,
he discovered a box of documents “he believed were given to him by Krizan
in response to a discovery request.” Id. Appellant challenges the trial court’s
refusal to open the termination order to allow consideration of these
documents. Id. at 16. Appellant contends that in denying his request for
relief, the trial court improperly limited “the inquiry into whether Defendant[s]
ha[d] been prejudiced by the delay.” Id.
Our review discloses that during the November 24, 2021, hearing,
Appellant produced a box of documents not previously produced. N.T.,
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11/24/21, at 32. Appellant described the box as including “financial records,
payroll records, checks, [and] accounts payable for 2007.” Id. According to
Appellant, the documents were copies of documents produced during
discovery. Id.
In rejecting this argument, the trial court explained:
[Appellant] produced a box of documents at the November 24,
2021 hearing that he claimed he had suddenly found several days
before the last hearing in the case, after the initial appeal was
decided by the Superior Court, and 14 years after the litigation
began. His attorney had not even seen the documents before they
were produced on November 24, 2021. The discussion between
the [c]ourt and counsel and the testimony transcribed at pages
32-61 of Volume II of the hearing transcript of November 24, 2021
further evidences not only [Appellant’s] dilatory conduct, but also
his creation of prejudice by not producing or discovering alleged
business records and documents for 14 years. Once [D]efendants
no longer had access to, or information regarding, witnesses and
documents, [Appellant] attempted to bring forward a large box of
documents never before produced, despite discovery requests, to
hopefully save the day.
For the reasons stated above, the [c]ourt finds actual
prejudice and again will terminate this case pursuant to Rule 1901
in an Order entered this same date.
Trial Court Opinion, 2/23/22, at 4. Again, the record supports the trial court’s
findings and we discern no abuse of discretion. See Shope, 701 A.2d at 1108
(equitable principles should be considered when dismissing a case for
inactivity). Accordingly, no relief is due.
Motion to quash denied. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2022
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