J-S45030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN KLIMCHAK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TROY THOMAS,
Appellee No. 1907 WDA 2015
Appeal from the Judgment Entered December 7, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): AR-14-004347
BEFORE: OLSON, DUBOW AND PLATT,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY OLSON, J.:
FILED: October 26, 2016
Although I agree with the learned Majority’s determination to vacate
the judgment in this case, I must respectfully dissent from the Majority’s
decision to remand the case for a new trial. I would vacate the judgment in
this case and remand for a hearing on Appellant’s “post-trial motion.”
The Majority clearly explained why the trial court abused its discretion
when – without holding a hearing – it denied Appellant’s request for a new
trial on both Appellant’s claim against Mr. Thomas and Mr. Thomas’
counterclaim against Appellant. To be sure, in this case, Appellant proffered
a “satisfactory excuse” for failing to appear at the November 5, 2015 trial.
Nevertheless, even though Appellant proffered a satisfactory excuse,
Appellant’s averments do not constitute established facts. Rather,
*Retired Senior Judge assigned to the Superior Court.
J-S45030-16
factfinding is necessary to determine whether Appellant’s averments are
true.
In my view, the Majority incorrectly omitted the obligatory hearing and
factfinding and has, instead, held that Appellant’s mere averments satisfy
his burden of persuasion. See, e.g., Pa.R.C.P. 218 cmt. (“the burden [is]
placed upon the party who has failed to appear to show cause why the trial
court should reopen the proceedings”). I believe this is a mistake. Thus,
although I agree that the trial court erred in denying Appellant’s “post-trial
motion,” I would not (at this juncture) remand for a new trial. Instead, I
would remand for a hearing on Appellant’s post-trial motion, so that the
necessary and proper factfinding may occur. See, e.g., Pa.R.C.P. 218 cmt.
(“[i]f the court enters a nonsuit or a judgment of non pros or dismisses an
appeal and there exists a sufficient excuse, the aggrieved party may present
the excuse through a motion to remove the nonsuit or a petition to open the
judgment or reinstate the appeal. The petition or post-trial procedure will
result in a record which will enable an appellate court to review the trial
court’s action to determine if there has been an abuse of discretion”)
(emphasis added); see also Petrone v. Whirlwind, Inc., 664 A.2d 172,
175 (Pa. Super. 1995) (“[t]he Court is required to conduct a hearing to
determine whether the excuse of counsel is satisfactory and whether the
conduct warrants dismissal”).
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