Christopher's Auto Parts, Inc. v. Gilmore

*542HUDOCK, Judge:

This is an appeal from an order reinstating an arbitration award, pursuant to Pa.R.C.P. 218(b)(2), 42 Pa.C.S.A., (Purdon Supp.1991), following Mel Shaw’s (Appellant) failure to appear for the trial de novo. We reverse and remand.

On July 21, 1989, Appellee filed a complaint alleging Appellant failed to pay for auto parts supplied by Appellee. After preliminary objections were dismissed, Appellant filed his answer. Compulsory arbitration took place, and an award was entered in favor of Appellee and against Appellant. Appellant appealed from the arbitration award for a trial de novo, and an order dismissing the appeal and reinstating the arbitration award was entered September 11, 1990 when Appellant failed to appear for trial. Appellant perfected a timely appeal to this Court.

We note initially that Pa.R.C.P. 218, 42 Pa.C.S.A., was amended recently. The amendment provides, in pertinent part:

(b) If without satisfactory excuse a defendant is not ready, the plaintiff may
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(2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.

Pa.R.C.P. 218(b), 42 Pa.C.S.A. (emphasis added). The explanatory comment which follows this rule reads:

The situation occurs where the defendant appeals an award in compulsory arbitration in favor of the plaintiff but does not appear for the trial de novo. A burden is placed upon both the plaintiff and the court system to retry the case despite the disinterest of the defendant. Further, the necessity to retry the case is far different from the penalty in the converse situation in which the plaintiff files the appeal and then fails to appear. In that instance, the penalty upon the plaintiff is a nonsuit or a non pros. The amendment to Rule 218 solves the problem by giving the plaintiff the option of trying the case a *543second time or having the appeal dismissed and the arbitration award reinstated.

Pa.R.C.P. 218, Explanatory Comment 1990 (Purdon Supp. 1991). Rule 218(b)(2) became effective July 1, 1990. The trial court’s order was entered on September 11, 1990 and is therefore covered by this new section. Appellant argues1 that we should exercise our equitable powers and open the judgment. Under the plain language of the rule, we cannot do this at this stage in the proceedings.

The record before us indicates that the trial judge ordered reinstatement of the arbitration award when the case was called for trial. This was done without first ascertaining whether Appellant was absent without a satisfactory excuse. In a recent en banc decision, we held that under Pa.R.C.P. 218(a), 42 Pa.C.S.A., it is an abuse of discretion for the trial judge to enter a non pros judgment based merely on the absence of one party without ascertaining whether the absent party had a satisfactory excuse. Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990). The language of Rule 218(a) reads:

Where 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.

Pa.R.C.P. 218(a), 42 Pa.C.S.A. (emphasis added).

We find the language of subdivisions (a) and (b) to contain the same phrase, “without satisfactory excuse”, and a similar result, therefore, is required in each situation. There is nothing in the record before us to indicate that the trial court considered whether the Appellant had a satisfactory excuse. The dissent argues that, due to a factual distinction, our case is not controlled by Elcomp. The dissent argues that in Elcomp a hearing was held on October 18, 1988, which considered whether the appellant had a satisfactory excuse for its absence. We specifically ruled, however, that Elcomp’s motion to reinstate the case did not meet the requirements of a motion to open judg*544ment. We, therefore, properly considered the appeal as one from the October 12, 1988, non pros judgment, and not an appeal from any subsequent hearing on an improper motion. Elcomp, 398 Pa.Superior Ct. at 422, n. 1, 581 A.2d at 204, n. 1. We therefore considered only the evidence before the Court at the time of the non pros judgment. Therefore, Elcomp stands for the proposition that before a non pros judgment may be entered, some sort of fact-finding must take place to determine whether the appellant was absent without satisfactory excuse. This was not done in the present situation. Indeed, the trial judge indicated in his 1925(a) opinion that no fact-finding took place. Based qn the plain language of the rule, and our Court’s recent interpretation of that language in Elcomp, the trial court did abuse its discretion in reinstating the arbitration award without first conducting the necessary fact-finding to determine whether Appellant’s absence was explained by satisfactory excuse. We reiterate what we said in Elcomp, “[wjithout considering the possibility of a satisfactory excuse for Elcomp’s absence or prejudice to Drolet, the trial court could not properly exercise its discretion in this matter.” Elcomp, 398 Pa.Superior Ct. at 425, 581 A.2d at 205.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

. We note that Appellee has not filed a brief in this appeal.