Christopher's Auto Parts, Inc. v. Gilmore

WIEAND, Judge,

dissenting:

I dissent. The majority’s attempt to expand and then make procedural dogma of language unnecessary to the decision in Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990), ignores the intent of the recent amendment to Pa.R.C.P. 218(b) and creates an impossible obstruction to the efficient operation of trial courts and the speedy attainment of justice for innocent and conscientious litigants.

Christopher’s Auto Parts, Inc., plaintiff, commenced an action for the cost of goods allegedly sold to Debbie Gilmore and Mel Shaw. The case was submitted to compulso*545ry arbitration, and the arbitrators entered an award in favor of Christopher’s Auto Parts and against Mel Shaw alone in the amount of $2,174.82. Shaw appealed and waived trial by jury. When the case was called for trial, however, Shaw failed to appear. Therefore, the trial court, on September 10, 1990, dismissed the appeal and reinstated the award of the arbitrators. Shaw did not move to open the proceedings in the trial court but filed an immediate appeal, which is now before this Court for disposition. He argues that this Court, applying equitable principles, should reverse the trial court, open the judgment entered on the award of arbitrators, and remand for trial.

A majority of this Court holds that the trial court erred when it dismissed Shaw’s appeal. It remands the case to the trial court to determine whether the appealing defendant may have had some reason for failing to appear for trial. In so doing, the majority gives appellant an unwarranted second chance to improve a record which now contains no explanation whatsoever for appellant’s failure to appear for the trial which he requested when he filed an appeal from compulsory arbitration.

The rule applicable to appellant’s failure to appear for trial is Pa.R.C.P. 218(b), as amended on April 4, 1990, effective July 1, 1990. This rule provides as follows:

(b) If without satisfactory excuse a defendant is not ready, the plaintiff may
(1) proceed to trial, or,
(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.

The Explanatory Comment is as follows:

I. Appeals from Compulsory Arbitration. 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 *546necessity 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 second time or having the appeal dismissed and the arbitration award reinstated.

Acting in reliance upon this rule, the trial court in the instant case dismissed the appeal and reinstated the arbitration award when Shaw failed to appear for trial. Since that time, Shaw has made no effort to explain his default and obtain relief from the trial court. Instead, he filed an immediate appeal in the Superior Court, where he asks that the proceedings be reopened by applying equitable principles. However, no equitable reasons appear anywhere in the record which this Court has been asked to review. Indeed, none have ever been presented.

The better procedure would have been for appellant to seek relief from the trial court. By proceeding in this manner, he could have established a record via hearing or depositions which, when relief was denied in the trial court, would have permitted meaningful appellate review. Presently, we have before us no such record. It cannot be said from the record before us that the trial court in any way abused its discretion when it did no more than follow a procedural rule adopted by the Supreme Court.

The decision in this case is not controlled by the decision in Elcomp, Inc. v. Drolet, supra. In that case the trial court had entered a non pros when the plaintiff failed to appear for trial. Thereafter, the plaintiff filed in the trial court a motion to reinstate the case. At a hearing thereon it was established that Elcomp had failed to appear because it believed the hearing to have been continued on Drolet’s motion after Elcomp’s counsel had agreed not to oppose such a motion. The record disclosed that counsel’s agreement to continue the hearing had never been called to the trial court’s attention. A majority of the Superior Court *547held, therefore, that the plaintiff-appellant had tendered a satisfactory excuse for failing to appear and that the trial court had erred in refusing to reinstate the action.

In the instant case, appellant made no effort to establish to the satisfaction of the trial court any excuse for his failure to appear for trial. He made no request whatsoever to the trial court for relief. As a consequence, the record before this Court discloses nothing but appellant’s failure to appear for trial. It discloses that no excuse, satisfactory or unsatisfactory, has ever been tendered to the trial court.1 Under these circumstances, it seems clear to me that the trial court did not err or commit an abuse of discretion by granting the plaintiff-appellee’s motion to dismiss the appeal.

The fallacy in the procedure followed by appellant and in the argument which he has made in this Court becomes even clearer when it is recalled that appellee, according to the provisions of R.C.P. 218(b), had the alternative option of retrying his case in appellant’s absence. If he had chosen this option and had recovered a verdict, appellant could not have filed an immediate appeal but would have been required to seek relief from the trial court via motion for post-trial relief. See: Pa.R.C.P. 227.1. In the absence of such a post-trial motion, not even a majority of this Court, I venture to say, would remand to give him an opportunity to explain his absence at the time of trial. Why then does the majority treat differently the appellant’s failure to seek post-trial relief where the innocent party elected to dismiss the appeal and reinstate the award of the arbitrators? Why, in this case, should this Court advise appellant regarding the procedure to be followed and, in so doing, give him the proverbial “second bite?”

The majority purports to base its grant of a “second bite” upon language appearing in Elcomp, Inc. v. Drolet, supra, *548which suggested that a trial court had abused its discretion when, pursuant to R.C.P. 218(a), it based a judgment of non pros upon the failure of a party to appear for trial. In such cases, the Elcomp court opined, the trial court must first ascertain the absent party’s reason or reasons for failing to appear. How this is to be done without the presence of the absent party the Court did not explain. Presumably, it would require an additional hearing, with full notice to the parties and findings of fact by the hearing court. Such a procedure, in my judgment, is unwarranted. Not only does it impair the efficient operation of the courts, but it also imposes an unfair burden on the innocent party. At the very least, the burden of escaping the consequences of a default should be placed on the party who has failed to appear for trial. In this manner, neither an innocent party who is present for trial nor the trial court will be prevented from proceeding at the time set for trial, and the burden will be placed upon the party who has failed to appear to show cause why the trial court should reopen the proceedings.

The unfortunate concept propounded in Elcomp, Inc. v. Drolet, supra, was not necessary to the decision reached by the Court in that case. There, the defaulting party, by a post-trial request for relief, had established a satisfactory excuse for his failure to appear. A majority of this Court has seized upon this unnecessary language in Elcomp to create procedural dogma which is contrary to well established procedural concepts, which is unfair to an innocent party who has appeared for trial, and which impairs the efficient conduct of a trial court’s business. I respectfully but vigorously dissent. The record in the case before this Court for review discloses that the action taken by the trial court was sanctioned by R.C.P. 218(b) and did not, even by exaggerated legal legerdemain, constitute an abuse of discretion. I would affirm the trial court’s order. I would not remand to give appellant a “second bite” to correct his numerous procedural derelictions.

. The only excuse offered to this Court by appellant in his appellate brief is that neither he nor his counsel was aware that the case had been listed for trial and that, therefore, they failed to appear. This reason, in my judgment, is entirely unsatisfactory.