Collins, J. v. Police and Fire Federal Credit

• Court: Superior Court of Pennsylvania
• Decided: August 15, 2022
• Docket: 1638 EDA 2021
• Status: Unpublished

Opinion

J-A09020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEALDINE COLLINS : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : POLICE AND FIRE FEDERAL CREDIT : No. 1638 EDA 2021 UNION AND CITY LINE SHOPPING : ASSOCIATES :

Appeal from the Order Entered August 11, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 181002669

BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 15, 2022

Jealdine Collins (“Collins”) appeals from the order denying her petition

to open a judgment of non pros. We vacate the order and remand for further

proceedings.

In 2016, Collins slipped and fell at a branch office of Police and Fire

Federal Credit Union (“PFFCU”) at 7604 City Avenue in Philadelphia. Collins

filed a complaint in 2018, alleging negligence against PFFCU.1 The trial court

issued a trial order in January 2021 indicating jury selection would begin on

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* Retired Senior Judge assigned to the Superior Court.

1 Collins’s complaint also initially named the building’s owner, City Line Shopping Associates, as a defendant, but in March 2020, the parties stipulated that Collins’s claims against City Line Shopping Center Associates would be dismissed without prejudice. J-A09020-22

or after June 4, 2021, with trial to start on or after June 7, 2021. See Order,

1/12/21. On June 2, 2021, the court notified Collins that the trial would begin

on June 7, 2021, and that jury selection would begin on June 3, 2021. Collins

moved, that same day, for a continuance, and attached a letter from her

physician, Ronald L. Kotler, M.D. (“Dr. Kotler”). The letter, also dated that

day, stated, “Please excuse . . . Collins from court tomorrow . . .. She is ill

and under my care. It’s recommended that she stay home to recover. If you

have any questions, please contact my office.” Collins’s Motion to Continue,

6/2/21, Ex. A. That same day, the Honorable Denis P. Cohen denied the

motion. See Order, 6/2/21.

On June 3, 2021, Collins’s counsel orally moved for a continuance before

the Honorable Jacqueline F. Allen, who indicated she was bound by Judge

Cohen’s ruling on the same motion. Collins then moved later that same day

for reconsideration by Judge Cohen, to whom the motion was assigned, and

affixed a second letter from Dr. Kotler, dated June 3, 2021, explaining in more

detail Collins’s medical restrictions. Dr. Kotler’s second letter stated that

Collins was “being treated for a severe respiratory medical condition,” that

she was “at high risk for severe deterioration,” and that she should “not leave

her house until her medical condition is no longer placing her at risk.” Collins’s

Motion for Reconsideration, 6/3/21, Ex. C. It also asserted that if Collins’s

condition worsened, she might need hospitalization and two weeks of

recovery. See id. Judge Cohen did not rule on the motion for reconsideration.

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At the June 7, 2021 trial, Collins failed to appear. Judge Allen

determined that Judge Cohen’s denial of Collins’s original continuance motion

was binding under the coordinate jurisdiction rule, and that Collins had

therefore been required to appear for trial. See Order, 6/7/21; Trial Court

Opinion, 9/24/21, at 3-4. Consequently, Judge Allen entered a judgment of

non pros against Collins for failing to appear. See Pa.R.Civ.P. 218.

Collins petitioned to open the judgment of non pros on June 10, 2021.2

She asserted that she had timely filed the petition, presented a reasonable or

legitimate excuse, and that her cause of action was meritorious. Collins’s Pet.

to Set Aside, 6/10/21, at ¶ 25. She also attached a third, more detailed, letter

from Dr. Kotler that was similar, but not identical, to the one she had

appended to her motion for reconsideration. Dr. Kotler’s third letter, dated

June 7, 2021, contained all the previous information, and added that Collins

“should be quarantined for 14 days.” Id. at Ex. G. PFFCU filed its answer in

opposition, in which it argued that the judgment of non pros was appropriate.

See PFFCU’s Response, 7/1/21. Judge Allen denied the petition to open the

judgment of non pros on August 2, 2021. Collins filed a timely appeal, and

both she and the trial court complied with Pa.R.A.P. 1925.

2 Collins captioned her motion a “petition to set aside,” but correctly cited Rule of Civil Procedure 3051, which sets forth the standard for a petition to open a judgment of non pros. See Collins’s Pet. to Set Aside, 6/10/21, at ¶ 25.

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Collins raises the following issues for our review:

1. Did the lower court err in entering a non pros on the basis of timeliness of the motion when the matter was called to trial prior to the date listed on the scheduling order, [Collins] developed symptoms just prior to the time of trial [that] included COVID-like symptoms which likely would have prohibited her being present for her trial, she was quarantined to her home and [Collins] presented a letter from her long[- ]term treating pulmonologist documenting her condition and the likely time for recovery[?]

2. Did the lower court err in entering a non pros on the basis of the coordinate jurisdiction rule where the order in question was not a ruling on a legal question and the application of the coordinate jurisdiction rule created a manifest injustice as it resulted in a non pros being entered[?]

Collins’s Brief at 5 (unnecessary capitalization omitted, italics added).

An appeal related to a judgment of non pros “lies not from the judgment

itself, but from the denial of a petition to open or strike.” See Bartolomeo

v. Marshall, 69 A.3d 610, 613-14 (Pa. Super. 2013) (citation omitted). It is

well settled that a petition to open under Pa.R.Civ.P. 3051 is the only means

of requesting relief from a judgment of non pros. Id. at 613-14.3 We review

a decision to deny a petition to open a judgment of non pros for an abuse of

discretion, and, as such, “the trial court’s decision will be overturned only if

3Collins’s brief correctly observes that her appeal lies not from the judgment of non pros but the denial of her petition to open the judgment. See, e.g., Collins’s Brief at 12. Her inartful phrasing of the issue in her statement of questions involved does not impede our ability to review her assertion of error, therefore we decline to find waiver. See Phillips v. Selig, 959 A.2d 420, 428 (Pa. Super. 2008) (“[W]hen failure to comply with our Rules of Appellate Procedure does not impede our ability to review the issues, we will address the merits”) (internal citation and quotations omitted); cf. Pa.R.A.P. 2116.

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[it] reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support as to be clearly erroneous.” Banks v. Cooper,

171 A.3d 798, 801 (Pa. Super. 2017) (citation omitted).

Where a case is called for trial, the court may enter a nonsuit on motion

of the defendant or a non pros on the court’s own motion if a plaintiff is not

ready without a satisfactory excuse. See Pa.R.Civ.P. 218(a). A party who

fails to appear for trial is deemed to be not ready without satisfactory excuse.

See Banks, 171 A.3d at 801 (citing Pa.R.Civ.P. 218(c)).

A petition to open a judgment of non pros

is in the nature of an appeal to the equitable powers of the court and, in order for the judgment of non pros to be opened, a three- pronged test must be satisfied: 1) the petition to open must be promptly filed; 2) the default or delay must be reasonably explained or excused; and 3) facts must be shown to exist that support a cause of action.

Bartolomeo, 69 A.3d at 613 (citing, inter alia, Pa.R.Civ.P. 3051). A trial

court, in evaluating a party’s explanation or excuse for a failure to appear for

trial presented in a petition to open a judgment of non pros, should consider:

1) whether the failure to appear was inadvertent; 2) whether [the] failure to appear was part of a pattern of improper behavior, misconduct or abuse; 3) whether the court attempted to contact counsel prior to dismissing the [case]; 4) whether the opposing party would be prejudiced by the delay; and 5) whether the court gave any consideration to lesser sanctions.

Banks, 171 A.3d at 801 (citation omitted). Further, “the court must ascertain

whether there are any equitable considerations that weigh in favor of allowing

the party against whom judgment was entered [to have] his/her day in court.”

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Id. at 802 (internal citation omitted). In some cases, the trial court may need

to conduct a hearing before ruling on a petition to open a judgment of non

pros. Id.; see also Faison v. Turner, 858 A.2d 1244, 1247 (Pa. Super.

2004) (vacating an order denying a petition to open a judgment of non pros

where the appellant had explained the failure to appear, there was no

evidence of prejudice to the defendant, and the trial court failed to consider

lesser sanctions). Courts must be mindful that “lawsuits are more than

numbers or punches in computer cards. Individual cases are . . . of great

importance to the litigants involved, and courts must not overreach in their

zeal to move cases . . . [by] allow[ing] for no deviations from strict and literal

adherence to [justifiable court] policies.” Banks, 171 A.3d at 802.

Collins’s arguments that the trial court erred in denying her petition to

open the judgment of non pros are related, therefore we address them

together. Collins argues that the court erred in entering a judgment of non

pros and denying her petition to open the judgment because she presented a

reasonable excuse for her failure to appear, and Judge Cohen’s order denying

her continuance motion did not require Judge Allen to enter the judgment of

non pros and deny her petition to open the judgment under the coordinate

jurisdiction rule. See Collins’s Brief at 12, 19.

The trial court reasoned that the coordinate jurisdiction rule compelled

a judgment of non pros against Collins and denied her petition to open the

judgment because Judge Cohen denied Collins’s original continuance request,

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she received no ruling on her reconsideration motion, and she then failed to

appear for trial. See Trial Court Opinion, 9/29/21, at 3-4.

After careful review, we conclude the trial court abused its discretion

since the trial court failed to apply the proper standard when considering

Collins’s petition to open the judgment of non pros. The trial court was

required to apply Rule 3051(b) to determine whether the petition to open had

been promptly filed, whether Collins had presented a reasonable explanation

for her failure to appear, and whether the cause of action was meritorious.

See Pa.R.Civ.P. 3051(b); see also Banks, 171 A.3d at 801; Faison, 858

A.2d at 1247.4 Yet there is no indication in the record that the trial court

applied Rule 3051(b), or performed the Faison/Banks analysis in evaluating

Collins’s explanation for her failure to appear, when it decided Collins’s petition

to open the judgment of non pros, or that the court considered the additional

information provided by Collins in her petition. Accordingly, we vacate the

order denying Collins’s petition to open the judgment of non pros and remand

4 “When evaluating the explanation or excuse proffered by a party who failed to appear for trial and is seeking to open a judgment of non pros, the court should consider: 1) whether the failure to appear was inadvertent; 2) whether counsel’s failure to appear was part of a pattern of improper behavior, misconduct or abuse; 3) whether the court attempted to contact counsel prior to dismissing the [case]; 4) whether the opposing party would be prejudiced by the delay; and 5) whether the court gave any consideration to lesser sanctions.” See Banks, 171 A.3d at 801 (citation omitted).

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for the trial court to consider the petition and apply the Pa.R.Civ.P. 3051(b)

test and, in so doing, the Faison/Banks factors.5

Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/15/2022

5 The trial court erroneously relied on the coordinate jurisdiction rule in deciding Collins’s petition to open. The coordinate jurisdiction rule states “judges of coordinate jurisdiction sitting in the same case should not overrule each other’s decisions.” Legal Access Plans, LLC v. Millinghausen, 231 A.3d 935, 939 (Pa. Super. 2020) (ellipses, internal citation, and quotation omitted). Upon review of the procedural posture in this matter, the petition before Judge Allen (Petition to Set Aside Judgment of Non-Pros), was not the same as the motion before Judge Cohen (Motion to Continue Trial To [sic] Due to Medical Condition). There was no prior ruling on the petition to open, and thus no prior decision to bind the trial court’s Rule 3051 analysis. See Ryan v. Berman, 813 A.2d 792, 794 (Pa. 2002) (providing that “where the motions differ in kind . . . a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion”) (citation omitted). The procedural posture of this case had changed from the denial of a continuance request to termination of the litigation in its entirety. The petition before Judge Allen thus addressed a different legal question, one that required the application of a different legal standard, and was supported by additional evidence, given the third letter from Dr. Kotler presented to Judge Allen but not Judge Cohen. See Ryan, 813 A.2d at 795. Furthermore, we observe that Judge Cohen did not rule on Collins’s timely filed reconsideration motion, which included a second, and more detailed, letter from Dr. Kotler. There was thus no ruling on the reconsideration motion to bind Judge Allen under the coordinate jurisdiction rule.

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