J-A09011-15

                                  2015 PA Super 171

HEYWOOD BECKER                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

M.S. REILLY, INC.

                            Appellee                   No. 712 EDA 2014


              Appeal from the Judgment Entered February 7, 2014
             In the Court of Common Pleas of Northampton County
                    Civil Division at No: C-48-CV-2011-3124


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

OPINION BY STABILE, J.:                               FILED AUGUST 13, 2015

       Appellant, Heywood Becker, appeals from the February 7, 2014

judgment in favor of Appellee, M.S. Reilly, Inc.1 We affirm.

       Appellant commenced this negligence action on April 6, 2011.

Appellant alleged that a faulty drainage swale on Appellee’s property caused

water damage to Appellant’s property.           After a series of preliminary

objections and amended complaints, Appellee filed an answer and new

matter to Appellants’ third amended complaint on January 26, 2012.

Appellee filed a motion for judgment on the pleadings on November 14,

____________________________________________


1
    The parties captioned this as an appeal from several orders denying
Appellant’s post-trial motions.   Orders denying post-trial motions are
interlocutory and not ordinarily appealable.  Prime Media Assocs. v.
Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009), appeal
denied, 989 A.2d 919 (Pa. 2010). The subsequent judgment is the final,
appealable order.
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2012, which the trial court denied on January 24, 2013.        The trial court

listed the matter for trial on Monday, December 16, 2013.

      On Thursday, December 12, 2013, four days before trial was

scheduled to commence, Appellant filed a praecipe to discontinue the case

pursuant to Pa.R.C.P. No. 229. On the same day, Appellee filed a motion to

strike off the discontinuance and informed Appellant that it would present

the motion on December 16, 2003.       Appellant did not appear for trial on

December 16.     In Appellant’s absence, the trial court granted Appellee’s

motion to strike off the discontinuance and proceeded with trial on the

merits.   At the conclusion of the trial, at which Appellee presented expert

testimony and other evidence, the trial court found in favor of the Appellee.

      Appellant filed a timely post-trial motion on December 24, 2013

requesting reconsideration of the order striking off his discontinuance. The

trial court held argument on January 8, 2014 and denied Appellant’s recusal

motion at the hearing. N.T. Hearing, 1/8/14, at 15. On January 31, 2014,

the trial court denied Appellant’s remaining post-trial motions. Specifically,

the court denied reconsideration of its order striking off Appellant’s

discontinuance. Appellant filed a notice of appeal on February 28, 2014.

      On appeal, Appellant challenges the trial court’s denial of his recusal

motion and the order striking off his discontinuance. We will address these

issues in turn. We review the trial court’s denial of the recusal motion for




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abuse of discretion. Goodheart v. Casey, 565 A.2d 757, 763 (Pa. 1989).

The trial court must conduct a two tiered analysis:

             First, whether the Justice would have a personal bias or
      interest which would preclude an impartial review. This is a
      personal and unreviewable decision that only the jurist can
      make. Second, whether his participation in the matter would
      give the appearance of impropriety.      [T]o perform its high
      function in the best way, justice must satisfy the appearance of
      justice.

Id. at 764 (internal quotation marks omitted).

      Here, Appellant asserts the trial judge should have recused himself

from any matter involving Appellant’s counsel because, in his capacity as

administrative judge of the Northampton County Orphans’ Court, he issued a

rule against counsel and threatened to bar counsel from practicing before

that court. The record does not support Appellant’s argument. Appellant’s

counsel was counsel of record for several cases pending in orphans’ court for

which no filing fees had been paid. N.T. Hearing, 1/8/14, at 9-10. The trial

court issued an order directing Appellant’s counsel to pay the fees or appear

and explain the failure to pay. Id. at 10. The trial court issued the same

order to all similarly situated attorneys, i.e. those who had cases pending in

the orphans’ court in Northampton County with unpaid filing fees. Id. at 10-

11. Appellant’s counsel’s outstanding filing fees totaled $73.00. Id. at 12.

The trial judge stated on the record: “there is no way on God’s green earth

I would bar an attorney from practicing in this Court” over such a small

amount of money. Id. “There is no way that would ever happen.” Id.



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        In summary, the trial court disavowed any personal bias affecting his

ability to preside impartially over Appellant’s case.    That decision is not

reviewable. We further conclude the trial judge did not abuse his discretion

in declining to recuse himself from this case based on an appearance of

impropriety. Appellant’s counsel was one of several attorneys to receive an

administrative order regarding unpaid filing fees, for which the client and not

counsel ultimately is responsible.     Concerning Appellant’s counsel, the

amount of money at issue was de minimis, and the trial judge expressly

disavowed any intent to bar counsel from the court based on the unpaid

fees.    Based on all the foregoing, we reject Appellant’s first argument as

lacking in merit.

        Next, Appellant argues the trial court erred in entertaining and

granting Appellee’s motion to strike off Appellant’s discontinuance and

proceed with trial in Appellant’s absence. As noted above, Appellant filed a

discontinuance pursuant to Pa.R.C.P. No. 229 only four days before trial was

scheduled to commence. Rule 229(a) permits a plaintiff to discontinue an

action “before commencement of trial.” Pa.R.C.P. No. 229(a). Rule 229 also

permits another party to petition to strike off the discontinuance:       “The

court, upon petition and after notice, may strike off a discontinuance in order

to protect the rights of any party from unreasonable inconvenience,

vexation, harassment, expense, or prejudice.” Pa. R.C.P. No. 229(c).




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      “A discontinuance in strict law must be by leave of court, but it is the

universal practice in Pennsylvania to assume such leave in the first

instance.”   Pohl v. NGK Metals Corp., 936 A.2d 43, 46-47 (Pa. Super.

2007), appeal denied, 952 A.2d 678 (Pa. 2008).           “The causes which will

move the court to withdraw its assumed leave and set aside the

discontinuance are addressed to its discretion, and usually involve some

unjust disadvantage to the defendant or some other interested party[.]” Id.

at 47 (quoting Fanscali v. Univ. Health Ctr of Pittsburgh, 761 A.2d 1159,

1162 (Pa. 2000)). “In determining whether to strike a discontinuance, the

trial court must consider all facts and weigh equities. Further, the trial court

must consider the benefits or injuries which may result to the respective

sides if a discontinuance is granted.”     Id. (quoting Foti v. Askinas, 639

A.2d 807, 808 (Pa. Super. 1994)).

      The    Pohl   Court   concluded   the   trial   court   properly   struck   a

discontinuance where the defendants prevailed in a summary judgment

motion after extensive litigation and the plaintiff could potentially refile the

same claims in another action. Id. at 48. Likewise, in Foti, this Court held

that the trial court abused its discretion in granting a discontinuance without

prejudice where the defendants would have to repeat the effort and expense

of their extensive discovery if the plaintiff refiled the claim at a later date.

Foti, 639 A.2d at 809.




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      In presenting the petition, Appellee’s counsel gave the following

reasons for seeking to strike off the discontinuance and proceed with trial:

             In this case, Your Honor, in order to protect my client from
      further lawsuits by [Appellant], who has been able to manipulate
      our Court system rather effectively since the institution of this
      suit in April of 2011, the discontinuance, I believe, was simply
      for 1 improper reason, they weren’t ready. They had no expert.
      They had identified 3 witnesses.          I subpoenaed those 3
      witnesses twice. They failed to appear both times. So I filed
      this morning a motion to preclude their testimony should they
      arrive this morning.

N.T. Trial, 12/16/13, at 5.    Appellee arrived prepared to present a full

defense, including expert testimony.     Given Appellant’s apparent lack of

diligence in prosecuting the matter, the eleventh hour discontinuance, and

Appellee’s preparedness, the trial court chose to strike off the discontinuance

and proceed with trial. We discern no abuse of discretion in the trial court’s

decision, given this Court’s decisions in Pohl and Foti.    Here, as in those

cases, Appellee could have been subject to the inconvenience and expense

of repetitive effort in defending a subsequent lawsuit raising the same or

similar claims.

      Appellant cites no case law, and instead relies only on the text of Rule

229 and Northampton County Local Rule of Civil Procedure 208.3, governing

motion practice. Appellant argues that Rule 229(c) requires a hearing, that

Rule 208.3 requires advance notice and that a motion be decided in motions

court rather than at the call of the list, as was done in this case. Appellant

concludes that a motion to strike off a discontinuance “may not be granted



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when no hearing has been scheduled thereon.” Appellant’s Brief at 18. The

law does not support this argument.      We have already quoted the text of

Rule 229(c) in its entirety.   Contrary to Appellant’s assertion, Rule 229(c)

does not require a hearing.       It simply requires a petition and notice.

Appellant does not dispute that he received notice of Appellee’s intent to

petition to strike off the discontinuance on Thursday, December 12, 2013,

the same day Appellant filed the discontinuance.      Appellee prepared, filed

and served the petition the following day.       Appellant does not dispute

receiving notice of Appellee’s intent to present the petition to strike off the

discontinuance on Monday, December 16, 2013 and to proceed immediately

with trial if successful. Thus, Appellee complied with the petition and notice

requirements of Rule 229(c).

      Local Rule 208.3(a) paragraphs 1 and 2 require the movant to notify

the adverse party three business days prior to the date of presentation.

Northampton     County   R.C.P.   208.3(a).      Paragraph    4   states   that

“[c]ompliance with the time requirements may be excused by the motions

judge if it appears that reasonable notice has been attempted or given, and

immediate and irreparable injury will be sustained if relief is denied.”

Instantly, Appellee could not give three business days’ notice because

Appellant waited until the eve of trial to file his discontinuance. Appellant

cannot complain of short notice in this case, as he left Appellee no choice.




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      Finally, Appellant argues the trial court erred in proceeding with the

trial in Appellant’s absence immediately after granting Appellee’s petition to

strike off the discontinuance.    Once again, Appellant cites no case law in

support of his argument, and we could deem it waived for that reason alone.

Pa.R.A.P. 2119(b). In any event, Appellant’s argument lacks merit. A trial

court may proceed with a trial in a party’s absence where the party has

notice and fails to appear. Pa.R.C.P. No. 218(a) (“Where a case is called for

trial, if without satisfactory excuse a plaintiff is not ready, the court may

enter a nonsuit on motion of the defendant or a non pros on the court’s own

motion.”). Appellant had notice that trial would commence on December 16,

2013, and he further had notice of Appellee’s intent to proceed with trial if

the court granted the petition to strike off the continuance.    Despite this,

Appellant chose not to appear. The trial court did not err in proceeding with

trial after striking off the discontinuance.

      In summary, we have concluded that each of Appellant’s arguments is

lacking in merit. We therefore affirm the judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2015

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