J-S45030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN KLIMCHAK,                                      IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellant

                     v.

TROY THOMAS,

                           Appellee                     No. 1907 WDA 2015


              Appeal from the Judgment Entered December 7, 2015
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): AR-14-004347


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY OLSON, J.:

FILED: October 26, 2016

      Although I agree with the learned Majority’s determination to vacate

the judgment in this case, I must respectfully dissent from the Majority’s

decision to remand the case for a new trial. I would vacate the judgment in

this case and remand for a hearing on Appellant’s “post-trial motion.”

      The Majority clearly explained why the trial court abused its discretion

when – without holding a hearing – it denied Appellant’s request for a new

trial on both Appellant’s claim against Mr. Thomas and Mr. Thomas’

counterclaim against Appellant. To be sure, in this case, Appellant proffered

a “satisfactory excuse” for failing to appear at the November 5, 2015 trial.

      Nevertheless, even though Appellant proffered a satisfactory excuse,

Appellant’s    averments    do   not   constitute   established   facts.   Rather,

*Retired Senior Judge assigned to the Superior Court.
J-S45030-16


factfinding is necessary to determine whether Appellant’s averments are

true.

        In my view, the Majority incorrectly omitted the obligatory hearing and

factfinding and has, instead, held that Appellant’s mere averments satisfy

his burden of persuasion. See, e.g., Pa.R.C.P. 218 cmt. (“the burden [is]

placed upon the party who has failed to appear to show cause why the trial

court should reopen the proceedings”). I believe this is a mistake. Thus,

although I agree that the trial court erred in denying Appellant’s “post-trial

motion,” I would not (at this juncture) remand for a new trial. Instead, I

would remand for a hearing on Appellant’s post-trial motion, so that the

necessary and proper factfinding may occur. See, e.g., Pa.R.C.P. 218 cmt.

(“[i]f the court enters a nonsuit or a judgment of non pros or dismisses an

appeal and there exists a sufficient excuse, the aggrieved party may present

the excuse through a motion to remove the nonsuit or a petition to open the

judgment or reinstate the appeal. The petition or post-trial procedure will

result in a record which will enable an appellate court to review the trial

court’s action to determine if there has been an abuse of discretion”)

(emphasis added); see also Petrone v. Whirlwind, Inc., 664 A.2d 172,

175 (Pa. Super. 1995) (“[t]he Court is required to conduct a hearing to

determine whether the excuse of counsel is satisfactory and whether the

conduct warrants dismissal”).




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