Williams v. Gallagher

579 A.2d 403, 396 Pa. Super. 584, 1990 Pa. Super. LEXIS 2644

• Court: Supreme Court of Pennsylvania
• Decided: September 7, 1990
• Docket: 03605
• Status: Published

Opinions

MONTEMURO, Judge:

This is a direct appeal from the entry of a judgment of non pros. The appellant, Terrance Williams, was represented in a criminal matter by the appellee, Stephen P. Gallagher. In September of 1987, appellant filed a legal malpractice action against the appellee. Appellant was incarcerated at the time, and filed the lawsuit pro se. Appellant alleged in the complaint that appellee had negligently failed to file a direct appeal from appellant’s criminal conviction and that, as a result, appellant had suffered, inter alia, pain and suffering. Appellee subsequently filed preliminary objections, and the appellant filed a response to the preliminary objections in March of 1988. By Order dated August 16, 1988, the trial court removed appellant’s claim for $1,000,000 in damages, but otherwise denied appellee’s preliminary objections. When the appellee filed his answer, containing New Matter, in September of 1988, appellant promptly filed a response to the New Matter on September 19, 1988. Approximately one month later, on November 4, 1988, a judgment of non pros was entered for failure of the appellant to appear at the call of the list for assignment to trial. See Pa.R.C.P. 218.

We begin by recognizing that a party may file a direct appeal from the entry of a judgment of non pros. See Valley Peat & Humus v. Sunnylands, Inc., — Pa.Super. —, 581 A.2d 198 (en banc) (1990). A judgment of non pros is properly entered where the following exists: “... a party to the 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.” James Bros. Lumber v. Union Banking & Trust Co., 432 Pa. 129, 132, 247 A.2d 587, 589 (1968) (citations omitted).¹

In the instant case, we are convinced that the trial court abused its discretion in entering the judgment of non pros on November 4, 1988. Apparently due to his incarceration, the appellant was not aware that his case had been listed for trial. Given the nature of the cause of action, and appellant’s diligence in responding to pleadings and motions filed by appellee, we cannot imagine how the appellee was prejudiced by appellant’s failure to appear at the call of the list on November 4, 1988. There is no question, given the content of appellant’s filings in the trial court, that the appellee was fully apprised of the nature of appellant’s cause of action. The Philadelphia Court of Common Pleas filed an Opinion in this matter on February 21, 1989, wherein the court correctly recognized that “when cases are listed on the trial list that is published in the Legal Intelligencer, it is incumbent on the parties’ attorneys, or the parties themselves if they are not represented by counsel, to appear at the call of the trial list.” Op. of Trial Court, February 21, 1989, at 1. This general rule, however, does not support the entry of the non pros judgment under the circumstances of the present case. Further, we note that the appellant is now aware of the way in which the call of the trial list is handled by the Philadelphia Court of Common Pleas.

The dissent believes that we have engaged in “speculation and guesswork” concerning why the appellant failed to present himself at the call of the list. We are not convinced that, in entering the non pros judgment, the trial court was operating in the dark. It strains credibility to suggest that the trial court had no information whatsoever concerning this litigation at the time of the entry of the non pros judgment. The fact that the appellant was litigating this matter pro se, while incarcerated, is evident from a mere glance at any pleading or correspondence filed by the appellant in the trial court. We refuse to characterize what occurred in this case as a mystery when, in fact, it is not.

In our decision in Valley Peat & Humus v. Sunnylands, Inc., — Pa.Super. —, 581 A.2d 193 (en banc) (1990), we recognized that while the element of prejudice may have less importance in Rule 218 cases where it is established that a party is not ready for trial without satisfactory excuse, prejudice is a relevant consideration in any non pros case. The entry of a non pros judgment results from a balancing of all of the equitable considerations and circumstances presented by a given case. The dissent in the case sub judice proclaims surprise at our conclusion that the appellee could not have made a showing of undue prejudice resulting from the appellant’s failure to appear in court for the call of the list. We would simply note that it was no secret that the appellee was representing himself in this legal malpractice action filed by the appellant against the appellee as the only named defendant. The factual basis of the lawsuit instituted by the appellant is not a complicated one. Moreover, the legal basis for the present action may be succinctly stated: negligent failure to file a direct appeal from appellant’s criminal conviction.

Given the obvious explanation or excuse for appellant’s absence at the call of the list, the nature of appellant’s cause of action, and the surrounding equities present in this case, we find an abuse of discretion in the entry of the non pros judgment.

Order reversed and case remanded. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting opinion in which FORD ELLIOTT, J., joined. ROWLEY, J., files a concurring statement.

1 . We, of course, agree with the dissent’s view that the more appropriate procedure would envision the filing of a petition to open the non pros judgment in the trial court prior to the filing of an appeal to this Court.