Breza v. Don Farr Moving & Storage Co.

828 A.2d 1131, 2003 Pa. Super. 252, 2003 Pa. Super. LEXIS 1876

• Court: Superior Court of Pennsylvania
• Decided: July 2, 2003
• Status: Published

Opinions

OPINION BY

ORIE MELVIN, J.:

¶ 1 Appellant, Don Farr Moving & Storage Company, (Don Farr) appeals from the judgment entered against it following the denial of post-trial motions. On appeal, Don Farr claims his failure to appear for the arbitration hearing was due to a lack of notice. Therefore, Don Farr claims it was denied its right to due process and is entitled to a trial de novo. For the reasons that follow, we affirm.

¶ 2 The facts and procedural history may be summarized as follows. This action arises out of a civil dispute between Appellee Michael Breza (Breza) and Don Farr. Breza alleged that he sustained property damage when Don Farr transported his belongings from Pittsburgh to Los Angeles, California. A hearing was held before District Justice William J. Ivill on November 20, 2000, after which a judgment was entered in favor of Don Farr.

¶ 8 On November 22, 2000, Breza filed a notice of appeal and complaint with the Allegheny County Prothonotary. The Complaint listed June 11, 2001 as the arbitration hearing date and included notice pursuant to Allegheny County Local Rule 1308 that if one or both parties failed to appear, the matter would be heard before a judge on the same date and time. The docket reflects that the Prothonotary served Don Farr the notice appeal and a copy of the complaint by mail on November 27, 2000.¹ Don Farr did not file an answer to the complaint.

¶ 4 On June 11, 2001, Don Farr did not appear at the arbitration hearing. Pursuant to the local rule, the case was immediately transferred to the trial court for a non-jury trial. After Breza presented his case, a non-jury verdict was entered against Don Farr in the amount of $7,799.00.

¶5 On June 18, 2001, after receiving notice of the entry of a non-jury verdict against it, Don Farr filed a motion for reconsideration alleging that it had not been notified of the arbitration hearing. The trial court treated the filing as a motion for post-trial relief. On July 21, 2001, the motion was denied. Judgment on the verdict was entered on August 2, 2001. This appeal followed.

¶ 6 Appellant raises one question for our review:

Did the Court of Common Pleas err in determining that notice of an arbitration hearing was properly sent to Appellant, thus justifying, in [sic] Appellant’s absence from said hearing because of his failure to receive any notice, awarding judgment to Appellee and denying Appellant any right to appeal with a trial de novo?

Appellant’s brief at 6.

¶ 7 Our scope of review in a non-jury trial is limited to whether findings of fact are supported by competent evidence and whether the trial court committed an error of law. Roman Mosaic and Tile Company v. Thomas P. Carney, Inc., 729 A.2d 73, 76 (Pa.Super.1999). The findings of a judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury and will not be disturbed absent an error of law or an abuse of discretion. Porter v. Karivalis, 718 A.2d 823, 826 (Pa.Super.1998).

¶ 8 Pennsylvania Rule of Civil Procedure 1303 sets forth the procedures to be utilized in providing notice to parties regarding arbitration hearings.

Rule 1303. Hearing. Notice

(a)(1) The procedure for fixing the date, time and place of hearing before a board of arbitrators shall be prescribed by local rule, provided that not less than thirty days’ notice in writing shall be given to the parties or their attorneys of record.

(2) The local rule may provide that the written notice required by subdivision (a)(1) include the following statement:

“This matter will be heard by a board of arbitrators at the time, date and place specified but, if one or more of the parties is not present at the hearing, the matter may be heard at the same time and date before a judge of the court without the absent party or parties. There is no right to a trial de novo on appeal from a decision entered by a judge.”

(b) When the board is convened for a hearing, if one or more parties is not ready the case shall proceed and the arbitrators shall make an award unless the court

(1) orders a continuance, or

(2) hears the matter if the notice of hearing contains the statement required by subdivision (a)(2) and all parties present consent.

Pa.R.C.P. 1303, 42 Pa.C.S.A. The Note following subsection (b) provides in pertinent part that “Following an adverse decision, a defendant who has failed to appear may file a motion for post-trial relief which may include a request for a new trial on the ground of a satisfactory excuse for the defendant’s failure to appear.” Id. at Note. The Explanatory Comment following the 1998 amendments provides that under such circumstances Pa.R.C.P. 218 applies. This rule provides in relevant part:

Rule 218. Party Not Ready When Case is Called for Trial.

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

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(c)A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.

Pa.R.C.P. 218, 42 Pa.C.S.A. The Note following subsection (c) provides in relevant part that “A decision of the court following a trial at which the defendant failed to appear is subject to the filing of a motion for post-trial relief which may include a request for a new trial on the ground of a satisfactory excuse for the defendant’s failure to appear.” Id. at Note. A “satisfactory excuse” must be an excuse that would constitute a valid ground for a continuance. Jamison v. Johnson, 762 A.2d 1094, 1097 (Pa.Super.2000), appeal denied, 566 Pa. 644, 781 A.2d 145 (2001) (citing Goodrich Amram 2d § 218:3). Examples of such valid grounds include “agreement of counsel; illness of counsel, a party, or a material witness; inability to maintain the testimony of an absent witness by means of discovery; or such other grounds as may be allowed by the court.” Id.

¶ 9 In the present case, the content of the written hearing notice attached to Breza’s complaint was prescribed by Allegheny County Local Rule of Civil Procedure 1303, pursuant to Pa.R.C.P. 1303(a)(2). Accordingly, the matter was properly transferred to a trial judge where a non-jury verdict was rendered in favor of Breza. In Don Farr’s subsequent filing, which was properly treated as a post-trial motion, it alleged it never received notice of the arbitration date.

¶ 10 The trial court determined that Don Farr failed to provide a satisfactory excuse for its non-appearance. In making this determination, the trial court applied the mailbox rule. This rule provides that proof of a mailing raises a re-buttable presumption that the mailed item was received. Samaras v. Hartwick, 698 A.2d 71, 73 (Pa.Super.1997). Furthermore, the presumption under the mailbox rule is not nullified solely by testimony denying receipt of the item mailed. Id.; see also Donegal Mutual Insurance Company v. Insurance Department, 719 A.2d 825 (Pa.Cmwlth.1998) (finding that merely asserting that the letter was not received, without corroboration, is insufficient to overcome the presumption of receipt).

¶ 11 In applying the mailbox rule, the trial court found that the docket entries established that the complaint containing notice of the arbitration date was mailed on November 27, 2000. Because there were no docket entries indicating the complaint had been returned, the trial court determined Breza established a rebuttable presumption that Don Farr received the mailing. In denying post-trial motions, the trial court found that Don Farr’s assertion of non-receipt was insufficient to overcome the presumption. Trial Court Opinion, 7/21/01 at 3.

¶ 12 Based upon our review, we agree with the trial court’s determination. Appellant had every opportunity to present a satisfactory excuse for its failure to appear at trial. All claims related to notice or lack thereof should have been raised in Don Farr’s post-trial motions. Pa.R.C.P. 1303, Note, 1998 Explanatory Comment; Pa.R.C.P. 218, Note. In its motion, Don Farr merely claimed it never received notice of the arbitration date and alleged it had a legitimate defense to the underlying claims set forth in the complaint. However, Don Farr’s mere assertion that notice was not received, without corroboration, is insufficient to overcome the presumption. Samaras; Donegal Mutual, supra. Therefore, we agree with the trial court that Don Farr failed to provide a satisfactory excuse for its failure to appear.

¶ 13 We recognize the dissent relies on Commonwealth v. Thomas, 814 A.2d 754 (Pa.Super.2002), for the proposition that in order for a party to benefit from the mailbox rule’s presumption, the party must carry its burden of proving the notice has been mailed. See Dissenting Opinion at 1139-42. We find Thomas is distinguishable from the present case. In Thomas, appellant failed to appear for her summary appeal on cruelty to animals charges. After learning her case was dismissed for failure to appear she sought a new hearing claiming she did not receive proper notice. The trial court rejected Appellant’s claim. The trial court found the Commonwealth presented convincing evidence that the notice had been mailed in accordance with standard mailing procedures of the court administrator’s office thereby establishing a presumption of receipt. The trial court further found appellant’s mere denial of receipt was insufficient to rebut the presumption of notice being received. On appeal, a panel of this Court reversed and remanded for a trial de novo. The panel found that the Commonwealth failed to meet its burden that appellant received notice of the hearing. The panel determined that merely producing an un-times-tamped copy of a hearing notice contained in the Clerk of Court’s file and offering generic testimony as to the standard mailing practices for summary appeal hearing notices in the county was insufficient.

¶ 14 Unlike Thomas, the instant case involves whether Don Farr received the notice of appeal and complaint, which fist-ed the arbitration hearing date and included notice that if one or both parties failed to appear, the matter would be heard before a judge on the same date and time. Allegheny County Local Rule 1005C provides that the Prothonotary shall mail by first class mail a copy of the notice of appeal and the complaint and that any return be noted on the court’s docket. Pursuant to Pa.R.C.P.D.J. 1005C, such first class mailings by the Prothonotary under Allegheny County Local Rule 1005C operates as service and proof of service as required by Pa.R.C.P.D.J. 1005A and 1005B. Here, the docket reflects that the Prothonotary served Don Farr the notice of appeal and a copy of the complaint by mail on November 27, 2000. There was no entry made on the docket that the notice or the complaint was returned. We find the entry on the docket was sufficient to establish these items had been mailed. As such, the proof of mailing raised the rebut-table presumption that the mailed item was received. Again, Don Farr’s mere denial of receipt was not sufficient to overcome the presumption. Accordingly, we find Thomas is not controlling here.

¶ 15 Judgment affirmed.

¶ 16 TAMILIA, J. joins.

¶ 17 BENDER, J. files a Dissenting Opinion.

1 . Pa.R.C.P.D.J. Rule 1005A does not require that service be made upon the attorney of record. Instead, a notice of appeal and other papers may be served at the address of the appellee as listed in the complaint form filed in the office of the district justice or as otherwise appearing in the record of that office. Since the notice of judgment mailed to Breza by the district justice did not include the address of Don Farr’s attorney, service upon Don Farr was in compliance with the rules. See Trial Court Opinion, 7/21/01 at 2, fn 2. Furthermore, Allegheny Comity Local Rule 1005C provides that the Prothonotary shall mail by first class mail a copy of the notice of appeal and the complaint and that any return be noted on the court’s docket. Pursuant to Pa.R.C.P.D.J. 1005C, such first class mailings by the Prothonotary under Allegheny County Local Rule 1005C operates as service and proof of service as required by Pa.R.C.P.D J. 1005A and 1005B.