J-A10019-17

                              2017 PA Super 304

ROBERT BANKS AND YVONNE OWENS                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellants

                    v.

HEZEKIAH COOPER, AND
ALL STATE LOGISTICS, LLC, AND
ANNA KING

                         Appellees                    No. 3003 EDA 2016


                Appeal from the Order Dated August 18, 2016
           In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): April Term, 2015, No. XX-XXXXXXX

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

OPINION BY SOLANO, J.:                          FILED SEPTEMBER 26, 2017

      Appellants   Robert   Banks     and   Yvonne   Owens   appeal   from   the

August 18, 2016 order denying their petition to open a judgment of Non

Pros. For the reasons set forth below, we vacate the trial court’s order and

remand this case for further proceedings.

      On May 8, 2015, Appellants filed suit against Hezekiah Cooper, Allstate

Logistics, LLC, and Anna King (collectively “Appellees”) for breach of contract

and fraud.    According to Appellants, both Banks and Owens had loaned

Cooper money with an understanding that Cooper would repay the loans by

making each of them a 50% partner in his company, Allstate Logistics. In

addition, Owens claimed to have been in an amorous relationship with

Cooper for a number of years and alleged that her generosity toward him

had been based on the belief that she and Cooper would eventually get
J-A10019-17


married. She further alleged that, to the contrary, Cooper was a “lothario”

who preyed upon numerous women by feigning romantic intentions in order

to obtain money from them.             Appellants claimed that King “is the new

paramour of . . . Cooper, and is in conspiracy to defraud . . . Owens by

direct[ly] taking fund[s] from Allstate Logistics . . . for her own purposes and

not returning the funds provided by . . . Owens to Cooper and Allstate

Logistics.” Trial Ct. Op., 12/6/16, at 1-2.

       Appellees did not file a timely answer.1       On September 15, 2015,

Banks and Owens filed a praecipe for entry of a default judgment against

Cooper individually and as an officer of Allstate. On April 12, 2016, Cooper,

pro se, filed a petition to open the default judgment, in which he averred

that he had not been properly served with the complaint. Banks and Owens

opposed Cooper’s petition.           On May 18, 2016, the trial court granted

Cooper’s petition, and opened the default judgment entered against Cooper

individually and as an officer of Allstate.




____________________________________________
1
   We note that Allstate appears to be represented by Cooper, pro se, a non-
lawyer and corporate officer. No counsel has entered an appearance for
Allstate. Cooper’s representation of Allstate is impermissible, and no further
filings by Cooper on behalf of Allstate may be accepted. See generally
David R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa.
Super. 2017) (holding, “LLC entities, generally, may not proceed in
Pennsylvania courts of common pleas except through a licensed attorney”).


                                           -2-
J-A10019-17


       Cooper and King filed a joint answer on June 7, 2016.2         As the trial

court explained:

       [In their answer, Cooper and King] denied Appellants’ allegations
       of underhanded behavior, claiming the $5,000 loaned by Banks
       was startup capital for Allstate Logistics, spent in furtherance of
       this business venture that unfortunately failed, and that the
       partnership agreement mentioned repeatedly in Appellants’
       Complaint was a figment of Banks’ and Owens’ collective
       imagination.     In addition, Appellees stated that, though
       Appellants’ attorney, Arsen Kashkashian, Esq., was aware of
       Banks’ “involvement” in Cooper’s business operations,
       Kashkashian and Banks “agreed that no documents should be
       written up to discuss partnership[,] as it would affect [Banks] in
       other [unspecified and] outstanding cases.” Finally, Appellees
       maintained that Hezekiah Cooper had never borrowed any funds
       from Yvonne Owens, and asserted that this lawsuit was actually
       motivated by Yvonne Owens’ anger over Cooper’s decision to
       end their romantic relationship, and by Banks’ displeasure with
       Cooper’s cessation of their so-called “Over the Road trips.”2
       ___________________________________________________
          2
            Appellees never explain what “Over the Road” means, but it
          appears to be a trucking industry term of art, used to
          describe interstate trips during which the driver lives out of
          his truck and does not return to his home port for weeks on
          end. See e.g., Over the Road: The Life of a Long-Haul Truck
          Driver, truckingtruth.com, http://www.truckingtruth.com/over
          _the_road.htm.

Trial Ct. Op., 12/6/16, at 1-2 (citations to the Answer and footnote 1

omitted; some formatting altered).

       Meanwhile, on April 29, 2016, while Cooper’s petition to open the

default judgment was pending, the Honorable Idee Fox issued a “Notice of

Trial Attachment,” which informed the parties that their matter had been

____________________________________________
2
 Allstate did not file an answer.         Based on the pleadings, it appears that
Cooper controlled Allstate.


                                           -3-
J-A10019-17


specially listed for trial at 9:30 a.m. on July 6, 2016, in Courtroom 243 of

Philadelphia City Hall.        That same day, the notice was sent to Arsen

Kashkashian, the lawyer for Banks and Owens, via the e-mail address he

had provided to the First Judicial District when he filed the complaint. Trial

Ct. Op. at 2-3.

       On July 5, 2016, this case was assigned to the Honorable Ellen Ceisler

for a non-jury trial to be held the next day. A member of Judge Ceisler’s

staff e-mailed Kashkashian on July 5, 2016, at 2:53 p.m., to inform him that

the trial would begin the next day at 9:30 a.m. in Courtroom 453. Trial Ct.

Op. at 3.

       On July 6, 2016, Banks, Owens, and Kashkashian did not appear for

the trial in either Courtroom 453 or Courtroom 243. Cooper and King, who

were pro se, did appear and were ready for trial.3 As a result of the failure

by Banks and Owens to appear, the trial court dismissed their case with

prejudice. Trial Ct. Op. at 3.4

       On July 13, 2016, Banks and Owens filed a “Petition to Open Judgment

Pursuant to Pennsylvania Rule of Civil Procedure 206.1 et seq.” Banks and

Owens averred that although “[t]he Complex Litigation Center . . . indicated
____________________________________________
3
  The trial court does not mention whether anyone appeared on behalf of
Allstate. As noted above, no counsel has entered an appearance for Allstate.
4
  In its Pa.R.A.P. 1925(a) opinion, the trial court stated that it also dismissed
Anna King as a defendant in this matter. See Trial Ct. Op. at 3. However,
there is no such order in the certified record.



                                           -4-
J-A10019-17


that an e-mail and hard copies of notices were sent on May 3,[5] 2016,”

Kashkashian was unaware of the May 3 e-mail “[d]ue to a clerical error,”

and never received a hard copy of the notice. Pet. to Reopen at ¶¶ 5, 6.

Banks and Owens contended that Kashkashian was out of the office when

the July 5, 2016 e-mail was transmitted, and that the e-mail did not afford

sufficient notice of the trial date. Id. at ¶¶ 2, 7.

       Cooper, King, and Allstate did not respond to the petition to open the

judgment.     On August 18, 2016, the trial court denied Banks’ and Owens’

petition. In its order, the court explained:

       Plaintiffs’ notice-related argument is not credible, as: 1. [the
       April 29] order was sent to Plaintiffs’ counsel at the e-mail
       address he had provided to the First Judicial District, and 2.
       Plaintiffs’ counsel admitted that his failure to notice the April 29,
       2016 e-mail was due to a “clerical error.” As such, Plaintiffs
       have failed to provide a reasonable explanation for their failure
       to appear at trial.

Order, 8/18/16.

       On September 13, 2016, Banks and Owens filed a timely notice of

appeal.    In their appeal, Banks and Owens raise the following issues, as

stated in their brief:

       I. Did the Lower Court err in failing to grant Appellant[s’] Petition
       to Open Judgment of Non Pros?

____________________________________________
5
  Banks and Owens did not mention the April 29, 2016 notice in their
petition. There is a May 3, 2016 notice on the docket, but this notice is not
in the certified record and the trial court does not mention the May 3 notice
in its opinion. The contents of this notice are thus unclear. It appears that
Banks and Owens confused the April 29 notice with the May 3 notice.


                                           -5-
J-A10019-17


            a. Was the petition timely filed?

            b. Did [Appellants’]         attorney   provide   a   reasonable
            explanation?

            c. Did Appellant[s] present a meritorious cause of action?

       II. Did the Lower Court abuse its discretion with regard to what
       is equitable under the law?

Banks and Owens’ Brief at 3.6 All of Banks’ and Owens’ arguments pertain

to whether the trial court improperly denied their Petition to Open. Trial Ct.

Op. at 4.

       “[A] trial court’s decision to deny a petition to open or strike a

judgment of non pros is reviewed pursuant to an abuse of discretion

standard.” Bartolomeo v. Marshall, 69 A.3d 610, 614 (Pa. Super. 2013)

(citation omitted).       “This means that the trial court’s decision will be

overturned only if [it] reflects manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.”

Womer v. Hilliker, 908 A.2d 269, 279 (Pa. 2006) (citation omitted).

       Banks and Owens contend that the trial court abused its discretion in

keeping them out of court based solely on their attorney’s error. They aver

that their petition to open the judgment was promptly filed, their attorney’s

mistake was a sufficient explanation for their failure to appear for the trial,




____________________________________________
6
 Appellees did not file a brief or participate in oral argument before this
Court.


                                           -6-
J-A10019-17


and their complaint stated viable causes of action for breach of contract and

fraud.

         Under Rule of Civil Procedure 218, “[w]here 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.” Pa.R.Civ.P. 218(a). Moreover, “[a] party who fails to appear for

trial shall be deemed to be not ready without satisfactory excuse.”            Id.

218(c).

         “[A] judgment of non pros is subject to the filing of a petition under

Rule 3051 for relief from a judgment of non pros.” Pa.R.Civ.P. 218 Note. A

petition under Rule 3051 must allege facts showing that: “(1) the petition is

timely filed, (2) there is a reasonable explanation or legitimate excuse for

the conduct that gave rise to the entry of judgment of non pros, and (3)

there is a meritorious cause of action.”         Pa.R.Civ.P. 3051(b).    The trial

court’s decision in this case was based on its finding that Banks and Owens

failed to satisfy the second factor. The trial court did not address the other

two factors.

         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

                                        -7-
J-A10019-17


        opposing party would be prejudiced by the delay; and 5)
        whether the court gave any consideration to lesser sanctions.

Faison v. Turner, 858 A.2d 1244, 1246-47 (Pa. Super. 2004) (citation

omitted).

        This Court has been reluctant to deny a party his or her day in court

due to “simple attorney error indicating pure oversight.”         Hopewell v.

Hendrie, 562 A.2d 899, 901 (Pa. Super. 1989), appeal denied, 577 A.2d

890 (Pa. 1990).        In Hopewell, for example, the plaintiff’s attorney

mistakenly filed a discontinuance without the plaintiff’s knowledge.       562

A.2d at 899. Months later, the plaintiff learned of the discontinuance. Id. at

900. Within thirty days, the plaintiff filed a petition to strike it.   Id. The

trial court denied that petition, but this Court held that the denial was an

abuse of discretion.    Id.   We explained that the plaintiff “should not be

denied her day in court simply because her attorney of record committed an

error which appellant moved to correct immediately upon discovering it.”

Id. at 901-02.

        The Court in Hopewell applied the reasoning from a plurality opinion

of the Supreme Court of Pennsylvania, which also had concluded that a trial

court abused its discretion in denying a request to open a judgment of non

pros:

        In . . . Jung v. St. Paul's Parish, . . . 560 A.2d 1356 (Pa.
        1989) (plurality), the Court reiterated that in the context of
        opening a default judgment (or a judgment of non pros), the
        court must ascertain whether there are any equitable
        considerations that weigh in favor of allowing the party against

                                     -8-
J-A10019-17


      whom judgment was entered [to have] his/her day in court. The
      Court also focused specifically on a situation like the present
      one, where simple attorney error indicating pure oversight,
      without fault of the party itself, resulted in the entry of a default
      judgment. In such a situation, the Court found that equity
      demanded the opening of the judgment.

Hopewell, 562 A.2d at 901 (typographical error corrected and most

citations omitted).   In this context, we note that the Supreme Court of

Pennsylvania has admonished:

      [I]t must always be borne in mind that lawsuits are more than
      numbers or punches in computer cards. Individual cases are, of
      course, of great importance to the litigants involved, and courts
      must not overreach in their zeal to move cases to such an extent
      as to allow for no deviations from strict and literal adherence to
      policies justifiably laid down to improve the conditions of the
      courts.

Budget Laundry Co. v. Munter, 298 A.2d 55, 58 (Pa. 1972) (per curiam).

      In some cases, the trial court may need to conduct a hearing before

ruling on a petition to open a judgment of non pros.           See Petrone v.

Whirlwind, Inc., 664 A.2d 172, 175 (Pa. Super. 1995).            In Petrone, a

defendant’s attorney failed to appear for a pre-trial conference, and after the

court unsuccessfully tried twice to reach him by phone, the court dismissed

the defendant’s cross-claim for failure to prosecute. 664 A.2d at 173. The

attorney thereafter filed a timely petition to open the judgment of non pros,

claiming that “a mistake was inadvertently made in an office where this type

of mistake is not a pattern and that counsel’s attendance at a CLE course

prevented him from being informed of the need for his presence at the pre-

trial.” Id. at 175. The trial court denied the petition without examining the

                                      -9-
J-A10019-17


proffered explanation. Id. This Court reversed, explaining, “[b]ased on the

allegations in the Petition, [defendant]’s counsel may have a sufficient

excuse for failing to appear, or at the least to avoid a non pros. The [c]ourt

is required to conduct a hearing to determine whether the excuse of counsel

is satisfactory and whether the conduct warrants dismissal.” Id.

      Instantly, in their petition to reopen the judgment, Banks and Owens

averred that Kashkashian did not receive a hard copy of the first notice and

overlooked the first e-mail due to an unexplained “clerical error.” Banks and

Owens argued that the e-mail Kashkashian received the afternoon before

trial did not provide sufficient notice.   Without any response from Cooper,

King, and Allstate, and without holding a hearing at which Kashkashian could

explain his error, the trial court concluded that Banks’ and Owens’

explanation was not credible. There is no indication in the record that the

trial court considered such factors as whether Kashkashian’s failure to

appear was part of a pattern of misconduct; whether efforts were made by

court administration or the trial court to contact Kashkashian immediately

before the hearing; whether Cooper, King, and Allstate would be prejudiced

by the delay; or whether lesser sanctions could be imposed. We therefore

hold that the trial court abused its discretion in denying the petition to

reopen. See Faison, 858 A.2d at 1246-47; Petrone, 664 A.2d at 175.

      Accordingly, we vacate the trial court’s order denying Banks’ and

Owens’ petition, and we remand for the trial court to hold a hearing at which


                                     - 10 -
J-A10019-17


it can evaluate the credibility of the explanation proffered by counsel. We

instruct the court to consider the factors listed in Faison in evaluating

counsel’s explanation and to address all three factors in Rule 3051

(timeliness, reasonable explanation, and merit of the cause of action).7

       Order vacated.         Case remanded with instructions.    Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2017




____________________________________________
7
 We also instruct the court to resolve whether King has been dismissed or
not.



                                          - 11 -
