Banks, R. v. Cooper, H.

171 A.3d 798
CourtSuperior Court of Pennsylvania
DecidedSeptember 26, 2017
Docket3003 EDA 2016
StatusPublished
Cited by16 cases

This text of 171 A.3d 798 (Banks, R. v. Cooper, H.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks, R. v. Cooper, H., 171 A.3d 798 (Pa. Ct. App. 2017).

Opinion

OPINION BY

SOLANO, J.:

Appellants Robert Banks and Yvonne Owens appeal from the August 18, 2016 order denying their petition to open a judgment of Non Pros. For the reasons set forth below, we vacate the trial court’s order and remand this case for further proceedings.

On May 8, 2015, Appellants filed suit against Hezekiah Cooper, Allstate Logistics, LLC, and Anna King (collectively “Appellees”) for breach of contract and fraud. According to Appellants, both Banks and Owens had loaned Cooper money with an understanding that Cooper would repay the loans by making each of them a 50% partner in his company, Allstate Logistics. In addition, Owens claimed to have been in an amorous relationship with Cooper for a number of years and alleged that her generosity toward him had been based .on the belief that she and Cooper would eventually get married. She further alleged that, to the contrary, Cooper was a “lothario” who preyed upon numerous women by feigning romantic intentions in order to obtain money from them. Appellants claimed that King “is the new paramour of ... Cooper, and is in conspiracy to defraud ... Owens by directly] taking fund[s] from Allstate Logistics ... for her own purposes and not returning the funds provided by ... Owens to Cooper and Allstate Logistics.” Trial Ct. Op., 12/6/16, at 1-2.

Appellees did not file a timely answer. 1 On September 15, 2015, Banks and Owens filed a praecipe for entry of a default judgment against Cooper individually and as an officer of Allstate. On April 12, 2016, Cooper, pro se, filed a petition to open the default judgment, in which he averred that he had not been properly served with the complaint. Banks and Owens opposed Cooper’s petition. On May 18, 2016, the trial court granted Cooper’s petition, and opened the default judgment entered against Cooper individually and as an officer of Allstate;

Cooper and King filed' a joint answer on June 7, 2016. 2 As the trial court explained:

[In their answer, Cooper and King] denied Appellants’ allegations of underhanded behavior, claiming the $5,000 loaned by Banks was startup capital for Allstate Logistics, spent in furtherance of this business ■ venture that unfortunately failed, and that the partnership agreement mentioned repeatedly in Appellants’ Complaint was a figment of Banks’ and Owens’ collective imagination. In addition, Appellees stated that, though Appellants’ attorney, Arsen Kashkashian, Esq., was aware of Banks’ “involvement” in Cooper’s business operations, Kashkashian and Banks “agreed that no documents should be written up to discuss partnership[,] as it would affect [Banks] in other [unspecified and] outstanding cases.” Finally, Appellees maintained that Hezekiah Cooper had never borrowed any funds from Yvonne Owens, .and asserted that this lawsuit was actually motivated by Yvonne Owens’ anger over Cooper’s decision to end their romantic relationship, and by Banks’ displeasure with Cooper’s cessation of their so-called “Over the Road trips.”2
2 Appellees never explain what “Over the Road” means, but it appears to be a trucking industry term of art, used to describe interstate trips during which the driver lives out of his truck and does not return to his home port for weeks on end. See e.g., Over the Road: The Life of a Long-Haul Truck Driver, truckingtmth.com, http;Hwww. truckingtruth. com/over thejroadMm.

Trial Ct. Op., 12/6/16, at 1-2 (citations to the Answer and footnote 1 omitted; some formatting altered).

Meanwhile, on April 29, 2016, while Coo-peris petition to open the default judgment was pending, the Honorable Idee Fox issued a “Notice of Trial Attachment,” which informed the parties that their matter had been specially listed for trial at 9:30 a.m. on July 6, 2016, in . Courtroom 243 of Philadelphia City Hall. That same day, the notice was sent to Arsen Kashkashian, the lawyer for Banks and Owens, via' the email address he had provided to the First Judicial District when he filed the complaint. Trial Ct. Op. at 2-3.

On July 5, 2016, this case was assigned to the Honorable Ellen Ceisler for a non-jury trial tó be. held the next day. A'member of Judge Ceisler’s staff e-mailed Kash-kashian on July 5, 2016, at 2:53 p.m., to inform him that the trial would begin the next day at, 9:30 a.m. in Courtroom 453. Trial Ct. Op. at 3.

On July 6, 2016, Banks, Owens, and Kashkashian did not appéar for the trial in either Courtroom 453 or Courtroom 243. Cooper and King, who were pro se, did appear and were ready' for trial. 3 As a result of the failure by Banks and Owens to appear, the trial court dismissed their case with prejudice. Trial Ct. Op. at 3. 4

On July 13, 2016, Banks and Owens filed a “Petition to Open Judgment Pursuant to Pennsylvania Rule of Civil Procedure 206.1 et seq,” Banks and Owens averred that although “(t]he Complex Litigation Center ... indicated that an e-mail and hard copies of notices were sent on May 3,[ 5 ] 2016,” Kashkashian was unaware-of the May 3 email “[d]ue to a clerical error,” and never received a hard copy of the notice. Pet. to Reopen at ¶¶ 5, 6. Banks and Owens contended that Kashkashian was out of the office when the July 5, 2016 e-mail was transmitted, and that the e-mail did not afford sufficient notice of-the trial date. Id. at-¶¶ 2, 7.

Cooper, King, and Allstate did not- respond to the petition to open the judgment. On August 18, 2016, the trial court denied Banks’ and Owens’ petition. In its order, the court explained:

Plaintiffs’ notice-related argument is not credible, as: 1. [the April 29] order was sent to" Plaintiffs’ counsel at the e-mail address he had próvided to 'the First Judicial District, and 2. Plaintiffs’ counsel admitted that his failure to notice the April 29, 2016 e-mail was due to' a “clerical error.” As such, Plaintiffs have failed to provide a reasonable explanation for their failure to appear at trial.

Order, -8/18/16.

On September 13, 2016, Batiks and Owens filed a timely notice of appeal. In their appeal, Banks and Owens raise the following issues, as stated in their brief: -

I. Did the Lower- Court err in failing to grant Appellants’] Petition to -Open Judgment of Non Pros?
a. Was the petition timely filed?
b. - Did [Appellants’] attorney provide a reasonable explanation?
c. Did Appellants] present a meritorious cause of action?
II. Did the Lower Court abuse its discretion with regard to what is equitable under the law?

Banks and Owens’ Brief at 3. 6 All of Banks’ and Owens’ arguments pertain to whether the trial court improperly denied their Petition to Opén. Trial Ct. Op. at 4.

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Cite This Page — Counsel Stack

Bluebook (online)
171 A.3d 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-r-v-cooper-h-pasuperct-2017.