Elcomp, Inc. v. Drolet

581 A.2d 203, 398 Pa. Super. 421, 1990 Pa. Super. LEXIS 2883

• Court: Supreme Court of Pennsylvania
• Decided: September 25, 1990
• Docket: 1698 and 1699
• Status: Published

Opinions

MONTEMURO, Judge:

In these consolidated appeals, we address the October 12, 1988 Order of the Court of Common Pleas of Allegheny County, dismissing with prejudice appellant’s (Elcomp, Inc.) cause of action against appellee, Peter J. Drolet. We reverse.¹

Elcomp filed a complaint in assumpsit on March 31, 1987, alleging that Peter Drolet owed Elcomp, a computer software company, approximately five thousand dollars ($5,000) reimbursement for monies paid as a draw against commissions. Elcomp asserted that Drolet did not earn any commissions during his five and one-half months of employment with Elcomp and, therefore, under the terms of his employment contract, he was required to reimburse the company for the amount of his draw. Drolet answered the complaint and disputed Elcomp’s interpretation of his employment contract. Drolet contended that, pursuant to an oral agreement, he was to be paid a yearly income of fifty thousand dollars ($50,000), and any draws he received would be paid only if he earned commissions.

On February 26, 1988, this matter was heard by a panel of arbitrators who entered an award in favor of Drolet.² Elcomp filed a timely notice of appeal from the arbitration award and waived a jury trial. This matter was scheduled for a nonjury trial on October 12, 1988. Notice of the trial was published in the August 9, 1988 edition of the Pittsburgh Legal Journal, the official newspaper for the Allegheny County Court System.

On October 5,1988, Daniel McIntyre, Esquire, counsel for Drolet, sent a letter and a copy of a motion for continuance of a non-jury trial to Dan Brookhart, Esquire, counsel for Elcomp, advising Elcomp that the motion would be presented to the trial court on Friday, October 7, 1988. The continuance was being requested because Drolet was unavailable due to out of town business. Brookhart was no longer associated with the firm representing Elcomp so Stanley Stein, Esquire, responded to this correspondence. On October 7,1988, Stein called McIntyre to advise him that Elcomp would not oppose the request for a continuance. Unable to reach McIntyre, Stein left a message asking McIntyre to return his call but not explaining the nature of the call. Counsel exchanged calls throughout the day, but never spoke to each other or left messages explaining the purpose of the calls. McIntyre was in fact calling to advise counsel for Elcomp that he was unable to see the trial judge that day and was, therefore, abandoning his attempt to have the trial continued.

On October 12, 1988, Elcomp failed to appear at trial, believing the case had been continued despite not having confirmed the same with opposing counsel or the trial court. Drolet appeared ready for trial and moved to dismiss the case when Elcomp did not appear. Citing Elcomp’s failure to appear, the trial court granted Drolet’s motion and dismissed the case with prejudice. See Pa.R.C.P. 218. The record reveals that on October 12, 1988, Drolet’s counsel never advised the trial court concerning the developments of the previous week.³

The entry of a judgment non pros will not be reversed absent a manifest abuse of discretion. “A court may properly enter a judgment of non pros when a party to a proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.” Carroll v. Kimmel, 362 Pa.Super. 432, 437, 524 A.2d 954, 956 (1987) (citations omitted).

Instantly, the record from the October 12, 1988, proceeding reveals that when no one appeared on behalf of Elcomp, the trial court entered a judgment of non pros. The dissent believes that this is precisely what Rule 218 contemplates. We disagree. As we recognized in Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (en banc) (1989), a judgment of non pros, whether entered pursuant to Rule 218 or otherwise, is properly entered following a consideration and a balancing of the equities present in a particular case. When the trial court gives note to the equitable considerations and determines, in its discretion, that a non pros judgment is appropriate, an appellate court will not reverse this exercise of trial court discretion absent a manifest abuse. In the present case, Elcomp was obviously not ready for trial under Rule 218, because Elcomp failed to appear. However, the trial court abused its discretion when it stopped with this determination. Rule 218 contemplates that the trial court will base its non pros judgment on a finding that, to the trial court’s knowledge, the failure of a party to be ready for trial is not satisfactorily excused. With a brief discussion with counsel present on behalf of Drolet, the trial court would have quickly learned of the abandoned continuance motion and the events of the preceding week. Further, the court could have heard argument from Drolet concerning any prejudice resulting to Drolet from Elcomp’s failure to appear. The trial court abused its discretion when it based the entry of the non pros judgment on one fact: the absence of Elcomp. Without considering the possibility of a satisfactory excuse for Elcomp’s absence or prejudice to Drolet, the trial court could not properly exercise its discretion in this matter. It is the trial court’s complete failure to balance the equitable considerations in this case which necessitates reversal. We need not address whether the non pros judgment would have been proper in the event that the trial court had engaged in a consideration of the equities as they existed on October 12, 1988.

We therefore reverse and remand for further proceedings in the trial court. Jurisdiction is relinquished.

ROWLEY, J. concurs in the result. DEL SOLE, J. files a concurring opinion. JOHNSON, J. files a dissenting opinion joined by FORD ELLIOTT, J.

1 . The order dismissing Elcomp’s complaint was apparently docketed on October 13, 1988. On October 18, 1988, Elcomp presented a motion seeking reinstatement of its case. Although this motion was arguably the functional equivalent of a petition to open the judgment of non pros, the motion did not address the specific requisites for the grant of a petition to open. See Narducci v. Mason’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988) (three factors must be present in order to open a judgment of non pros: (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action). We shall review the merits of the October 12, 1988, non pros judgment. A direct appeal may be filed from the entry of a non pros judgment. See Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (en banc) (1990).

2 . Elcomp and Drolet each requested and were granted a continuance resulting in the delay prior to the arbitration hearing.

3 . The dissent maintains that these facts were expressly rejected by the trial court. This simply is not true. It has never been disputed that Drolet did initially intend to request a continuance of the trial scheduled for October 12, 1988, and that Drolet mailed a copy of a prepared motion for continuance to Elcomp’s counsel. Additionally, it has never been disputed that between the mailing of this correspondence concerning the desired continuance and the date set for trial, the attorneys involved in this matter attempted unsuccessfully, for whatever reason, to communicate with each other by phone. See Brief for Appellant at 5-6 and Brief for Appellee at 3-4. The dissent concludes that the transcript from the October 18, 1988, hearing demonstrates a disagreement between counsel as to what transpired between counsel in the week preceding the scheduled trial date. The disagreement between counsel concerns where the fault should be placed for the failed communication attempts. The answer to this disputed question has little relevance given the undisputed facts upon which we have relied in reaching our decision in this appeal. Finally, we are in full agreement with the dissent that the preferred procedure is for a party to file a petition to remove the non pros judgment with the trial court prior to considering the prospect of an appeal. Unfortunately, this procedure was not properly followed in the case at bar.