J-S59032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ICEHOUSE, LLC, FTGP,LLC AND                :   IN THE SUPERIOR COURT OF
    COHEN & WILLWERTH, P.C.                    :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOHN SCOTT                                 :
                                               :   No. 389 EDA 2017
                      Appellant                :

                   Appeal from the Order December 12, 2016
      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): June Term 2015 No. 02805


BEFORE:       BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED DECEMBER 22, 2017

          Appellant, John Scott, appeals from the order denying his petition to

strike or open the judgment of non pros entered by the Philadelphia County

Court of Common Pleas in his wrongful use of process action against

Appellees, Icehouse, LLC (“Icehouse”), FTGP, LLC (“FTGP”), and Cohen &

Willwerth, P.C. (“Law Firm”). Appellant claims that the trial court erred in

entering the judgment of non pros and denying his petition to open.                 We

affirm.

        The    disputes   between      Appellant   and   Appellees   arise   from    a

development project proposed by Appellees Icehouse and FTGP. Appellant

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S59032-17


opposed the projects, and in 2010, he successfully appealed a Philadelphia

Zoning Board of Adjustment (“ZBA”) determination in the Commonwealth

Court.    Icehouse and FTGP subsequently submitted a new proposal to the

ZBA, which granted a variance.     In 2012, Appellant appealed the ZBA’s

determination (“Zoning Appeal”).    The Court of Common Pleas concluded

that Appellant lacked standing and quashed his appeal on January 9, 2013.

Appellant appealed that order to the Commonwealth Court.

      On March 6, 2013, Appellees Icehouse and FTGP, though their counsel,

Appellee Law Firm, commenced an action for abuse of process against

Appellant (“Icehouse Action”). Appellant filed preliminary objections, and on

June 17, 2013, the trial court dismissed the Icehouse Action without

prejudice.   The court concluded that Appellee’s claims were premature in

light of Appellant’s pending Zoning Appeal. No appeals were taken from the

order dismissing the Icehouse Action.

      On October 10, 2014, the Commonwealth Court reversed the quashal

of the Zoning Appeal, concluding that the issue of Appellant’s standing was

waived.    Scott v. City of Philadelphia, Zoning Bd. of Adjustment, 88

A.3d 1071, 1079 (Pa. Commw. Ct. 2014), rev'd and remanded, 126 A.3d

938 (2015).     On November 25, 2014, the Pennsylvania Supreme Court

granted allowance of appeal from the Commonwealth’s Court order.

      On June 22, 2015, Appellant commenced the instant action by filing

praecipes for the issuance of writs of summons against several defendants,


                                    -2-
J-S59032-17


including the above-captioned Appellees.1 Appellant thereafter revived the

writs of summons on a timely basis, but did not file a complaint.

       On October 29, 2015, four months after Appellant commenced the

instant action, the Pennsylvania Supreme Court reversed the Commonwealth

Court’s decision in the Zoning Appeal. Scott, 126 A.3d at 950. The Court

held that the Commonwealth Court erred in concluding that standing was a

waivable issue and remanded for further consideration of whether Appellant

possessed standing to proceed in the Zoning Appeal. Id.

       On December 17, 2015, the trial court issued a case management

order in the instant matter and listed the case for the September 2016 trial

term. Counsel from Appellee Law Firm entered an appearance on behalf of

“all Defendants” on April 12, 2016.            On April 13, 2016, Appellant filed a

motion for extraordinary relief to extend the pretrial deadline due to the

pending Pennsylvania Supreme Court’s decision in the Zoning Appeal.

Appellees opposed relief and noted that no complaint had been filed.            On

May 2, 2016, the trial court denied Appellant’s motion for extraordinary

relief and on May 18, 2016, denied Appellant’s motion for reconsideration.

Less than one month later, Appellant sought a stay noting, inter alia, that in
____________________________________________


1In addition to Appellees, Appellant sought writs of summons against EPDG
LP, FT Holdings LP, and Paul J. Cohen, Esq. (“Cohen”). Cohen appears to be
part of Appellee Law Firm. Appellant alleges Appellee Icehouse also does
business as EPDG LP and that Appellee FTGP also does business as FT
Holdings LP.




                                           -3-
J-S59032-17


March of 2016, he had been “arrested” for attempting to extort a settlement

from Appellees in the zoning matter. The court denied a stay on June 21,

2016, and subsequently denied Appellant’s motion to certify that order for

an interlocutory appeal.2

        On September 12, 2016, Appellant filed a praecipe to reissue the writs

of summons and to add a defendant, James Maransky. On September 14,

2016, the trial court issued a notice of trial attachment listing the matter for

trial on September 20, 2016.          Two days later, counsel from Appellee Law

Firm entered an appearance on behalf of Maransky and filed a motion for

extraordinary relief seeking a sixty-day continuance for, inter alia, the filing

of a complaint in order to prepare a defense. Appellant did not oppose the

motion.3 The trial court denied Appellees’ motion on September 19, 2016,

one day before the scheduled trial date.

        The following day, Appellant filed a complaint in the instant matter

asserting a claim for “Wrongful Use of Civil Proceedings/Dragonetti Act”4



____________________________________________


2Appellant appealed from the order denying a stay. This Court quashed that
appeal on September 16, 2016. Order, 2350 EDA 2016 (filed Sept. 16,
2016).

3 Appellees also apparently mailed a letter dated September 16, 2016, of its
intention to praecipe for entry of judgment of non pros within ten days.
Appellees’ Resp. to Appellant’s Pet. to Strike Non Pros, 10/24/16, Ex. C.

4   42 Pa.C.S. §§ 8351-8355.



                                           -4-
J-S59032-17


against    Appellees    and    Cohen.5         Appellant’s   Compl.,   9/20/16,   at   7

(unpaginated). Later that day, the parties appeared before the trial court,

and the court asked counsel for Appellant why a complaint was not filed.

N.T., 9/20/16, at 4. The following exchange occurred:

          [Counsel for Appellant:] Well, Your Honor, a Complaint─a
          Complaint was filed─

          The Court: Don’t tell me it was filed today or yesterday.

          A: It was filed earlier this morning, but we encountered a
          number of delays because my─my client is involved in
          concurrent litigation [i.e., the Zoning Appeal] that is going
          on through the Commonwealth Court, litigation stemming
          from zoning appeals that is the genesis of this whole case,
          and that litigation is still pending before the
          Commonwealth Court.

              He is─we also had some delays in attempting to─

          The Court: All right. There is an allegation of wrongful
          abuse of process, is there not, in this matter?

             And I am not sure [Appellant] hasn’t wrongfully abused
          process by filing a Complaint on the day of trial.

             Now the question I have for you, in a wrongful abuse of
          process case, there has to be a satisfactory conclusion on
          the part of the [Appellant] in this matter.

          A: Yes, Your Honor. And [Appellant] in the underlying
          litigation, that litigation─his preliminary objections were
          sustained by the [t]rial [c]ourt in that matter [i.e., the
          Icehouse Action].


____________________________________________


5 The complaint did not specifically name Maransky as a defendant, but
referred to him in the ensuing allegations.



                                           -5-
J-S59032-17


           That was a case in which the current [Appellees] had
       brought an abuse of process claim against my client, which
       ultimately was─my client prevailed upon preliminary
       objections, which was sustained by the [t]rial [c]ourt.

           In the meantime, the underlying litigation which was
       my client’s appeals of zoning variances up through
       Common Pleas and through the Commonwealth Court, he
       actually went up to the Supreme Court. The Supreme
       Court bounced it back to the Commonwealth Court, so he
       is still seeking resolution on that [i.e., the Zoning Appeal].

          In the meantime, there is a related criminal prosecution
       of my client in, I guess, conjunction with all of this zoning
       related litigation that we were hoping would have
       concluded by now, but it hasn’t.

                                *    *    *

       The Court: I’m ready to no[n] pos this case on motion for
       what I consider an abuse of process.

          This case started in─the date of filing─

       [Counsel for Appellees]: Your Honor, I believe it was June
       25th.

       The Court: Filing day was June 22, 2015. The trial date
       was given on a date certain on this case on the 20th of
       September. No complaint was filed. It was issued by
       praecipe writ of summons which normally is a temporary
       hold to avoid the statute of limitations issue and then
       nothing else happened.

                                *    *    *

       [Counsel for Appellant]: Well, Your Honor, we were
       attempting to─to use a writ of summons to preserve my
       client’s rights by preserving the statute of limitations.

       The Court: But you didn’t have a cause of action when you
       filed the summons.




                                    -6-
J-S59032-17


       [Counsel for Appellant]: Well, Your Honor, I think that
       we─we had a cause of action based on that my client had
       prevailed at the underlying litigation [i.e., the Icehouse
       Action] to this case, which was [Appellees]─the suit
       [Appellees] had filed against my client last year, 2014,
       2015. 2015 for abuse of process, that was dismissed on
       POs.

       The Court: [to Counsel for Appellant], I have not heard a
       legitimate reason for you not filing the Complaint in this
       case.

       A: Well, Judge─

       The Court: I’m waiting over─15 months has it been since
       you filed the writ and summons and never filed the
       Complaint?

          Went through pretrial conferences and all that material
       and then I get a call from the Supervising Judge that said
       no Complaint has been filed in this case.

       A: Your Honor, we filed a motion to stay the proceedings.

       The Court: Which were denied?

       A: Yes.

       The Court: Because you had no reason to stay the
       proceedings.

       A: And we petitioned the Superior Court to review that
       denial of motion to stay with an eye towards appealing it
       as an interlocutory order should the Superior Court pick
       that up.

          And we did file a Complaint in good faith because we do
       want to proceed with this. We do not want─our goal was
       not to be no[n] pros. Our goal was to proceed with this.

          We are also─a big concern that my client─that there
       may be additional reasons that [Appellees] may come up
       with to attempt to prosecute him further for statements
       that he makes in─in a pleading, which sounds ridiculous if

                                  -7-
J-S59032-17


          you think about it, but that’s what has been going on
          already with─with him, you know, over the past several
          months and that was another reason that we─we were
          hesitant to file. We wanted to wait until that criminal
          matter was resolved.

          [Counsel for Appellees]: Your Honor, I move for no[n]
          pros.

          The Court: All right.   I’m going to grant the motion for
          no[n] pros.

               You have time to file a motion to lift the no[n] pros and
          there had better been [sic] a better explanation for not
          filing a Complaint than what I heard in court this morning.

N.T. at 4-10.

      On October 1, 2016, Appellant filed a petition to open the judgment of

non pros entered by the trial court. He averred that: (1) he acted diligently

in serving and reviving the writs of summons; (2) the Pennsylvania Supreme

Court decision in Villani v. Seibert, 159 A.3d 478 (Pa. 2017), was pending;

and (3) he was criminally charged with extortion related to the Zoning

Appeal.    Appellant’s Pet. to Open J. for Non Pros, 10/1/16, at 2-5, 7

(unpaginated).    Appellant further emphasized that the longest period of

docket inactivity was forty-six days, and that Appellees did not take steps to

require the filing of a complaint. Id. at 6, 8. Appellant thus claimed that

the delay was reasonable because he acted within his rights to delay the

filing of a complaint to await developments in the law and avoid

incriminating himself.   Id. at 7-8.    Appellant also asserted that Appellees

contributed to the delay by failing to maintain proper addresses, which


                                       -8-
J-S59032-17


delayed service of the writs, and that Appellees could not claim prejudice

because they failed to seek a rule requiring the filing of a complaint. Id. at

8.      Lastly, Appellant asserted that his present cause of action was

meritorious and attached his expert’s opinion on the merits of the claim. Id.

at 8.

        Appellees filed a response to Appellant’s petition to open the judgment

requesting that the trial court deny relief.        They asserted, however, that

they “did not file the rule [requiring a complaint be filed] because it would

have prejudiced Defendant Cohen’s attempt to gain admission to the New

York bar and have raised his malpractice insurance . . . .” Appellees’ Answer

to Appellant’s Pet. to Strike Non Pros, 10/24/16 at 4 (unpaginated).

        The trial court denied Appellant’s petition to open on December 13,

2016.     This appeal followed.6        The trial court did not order a Pa.R.A.P.

1925(b) statement.

        Appellant presents the following questions for review:

           1. Did the [t]rial [c]ourt err as a matter of law and abuse
           its discretion by ignoring Pa.R.C.P. 237.3 and 3051 when it
           sua sponte suggested, and granted, an oral motion for
           non-pros and in so doing, deprive the Appellant of his right
           to proceed under the Dragonetti Act and Pa.R.C.P.
           1007(1)?

____________________________________________


6 Appellant’s notice of appeal also included reference to the trial court’s prior
interlocutory orders denying Appellant’s motion for extraordinary relief,
Appellant’s motion for reconsideration of the denial of extraordinary relief,
Appellant’s motion for a stay, and Appellee’s motion for extraordinary relief.



                                           -9-
J-S59032-17


         2. Did the [t]rial [c]ourt err as a matter of law and abuse
         its discretion by disregarding the Appellant’s rights under
         the Fifth, and Fourteenth Amendments of the U.S.
         Constitution and Article I, Section 9 of the Pennsylvania
         Constitution in forcing the Appellant to proceed despite
         facing criminal charges brought by the Appellees with
         regard to the instant matter?

         3. Did the [t]rial [c]ourt err as a matter of law and abuse
         its discretion by ordering a judgment of non-pros and
         denying a petition to open that judgment based upon the
         characterization of the Appellant’s main cause of action as
         premature or non-existent?

         4. Did the [t]rial [c]ourt err as a matter of law and abuse
         its discretion by finding that a delay requested by
         Appellee, Cohen would be prejudicial and in failing to
         acknowledge Cohen’s attempts to conceal the instant
         litigation from the New York State Bar and his insurer
         when it found this prejudice?

Appellant’s Brief at 4.

      This Court has stated that

         A request to open a judgment of non pros, like the opening
         of a default judgment, is in the nature of an appeal to the
         equitable powers of the court and, in order for the
         judgment of non pros to be opened, a three-pronged test
         must be satisfied: 1) the petition to open must be
         promptly filed; 2) the default or delay must be reasonably
         explained or excused; and 3) facts must be shown to exist
         that support a cause of action. A petition under Pa.R.C.P.
         3051 is the only means by which relief from a judgment of
         non pros may be sought. . . . Finally, 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, 613-14 (Pa. Super. 2013) (citations

omitted).

      Pennsylvania Rule of Civil Procedure 3051 states, in relevant part:


                                    - 10 -
J-S59032-17


          (a) Relief from a judgment of non pros shall be sought by
          petition. All grounds for relief, whether to strike off the
          judgment or to open it, must be asserted in a single
          petition.

          (b) Except as provided in subdivision (c),[7] if the relief
          sought includes the opening of the judgment, the petition
          shall 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.

                     Note: See Rule 237.3 for special provisions
                     relating to relief from a judgment of non pros
                     entered pursuant to Rule 1037(a).

Pa.R.C.P. 3051(a)-(b).

       Appellant first contends that the trial court subverted the rules of civil

procedure governing the commencement of an action and the filing of a

complaint by raising his failure to file a complaint sua sponte. Appellant’s

Brief at 11. He further asserts that relief should have been afforded to him




____________________________________________


7 Subdivision (c) to Rule 3051 pertains to the opening of the judgment of
non pros for inactivity as governed by Jacobs v. Halloran, 710 A.2d 1098
(Pa. 1998). Pa.R.C.P. 3051(c) & note. However, this case does not present
facts amounting to inactivity.




                                          - 11 -
J-S59032-17


under “the bright-line test of Pa.R.C.P. 237.3(b)(1).” 8 Id. at 14. No relief is

due.

       Generally, the procedures for entering and seeking relief from a

judgment of non pros for the failure to file a complaint are set forth in

Pa.R.C.P. 237.1, 237.3, and 1037. Rule 1037 permits the defendant to have

the prothonotary enter a rule for the filing of a complaint.          Pa.R.C.P.

1037(a). If the complaint is not filed within twenty days of the service of

the rule, the defendant may praecipe to have the prothonotary enter a

judgment of non pros. Pa.R.C.P. 1037(a). Rule 237.1 provides a procedural

safeguard against snap judgments under Rule 1037(a) by requiring the

defendant to include a certification that written notice of intent to file the

praecipe was mailed or delivered to the plaintiff. Pa.R.C.P. 237.1(a) & cmt.

       Rule 237.3 provides that a petition for relief of judgment of non pros

entered pursuant to Rule 237.1 shall include a verified copy of the complaint

the plaintiff wishes to file.        Pa.R.C.P. 237.3(a).   Moreover, Rule 237.3

provides a bright-line rule requiring the trial court to open the judgment if
____________________________________________


8 Appellant cites to the current version of Rule 237.3(b)(1), which became
effective January 1, 2017.       The differences between the current Rule
237.3(b)(1) and former version of Rule 273.3(b) are not material to this
appeal. Compare Pa.R.C.P. 237.3(b)(1) (“If the petition is filed within ten
days after the entry of a judgment of non pros on the docket, the court shall
open the judgment if the proposed complaint states a meritorious cause of
action”) (eff. Jan. 1, 2017) with Pa.R.C.P. 237.3(b) (“If the petition is filed
within ten days after the entry of the judgment on the docket, the court
shall open the judgment if the proposed complaint . . . states a meritorious
cause of action . . .”) (subsequently amended eff. Jan. 1, 2017).



                                          - 12 -
J-S59032-17


the petition is filed within ten days of the entry of the judgment and the

proposed complaint states a meritorious cause of action.            Pa.R.C.P.

237.3(b); see also Simmons v. Luallen, 763 A.2d 810, 812 (Pa. 2000)

(“Although Rule 237.3 does not alter the law of opening judgments as

reflected in Rule 3051(b), it presupposes that a petition to open filed within

the ten-day period is timely or prompt and that a reasonable explanation or

excuse for the delay exists.”).

         However, Rules 237.1(a) and 1037(a) apply when there is no

involvement by the trial court. See Pa.R.C.P. 237.1(a), 1037(a) (permitting

defendant to praecipe for rule and entry of judgment with the prothonotary).

Rule 237.1 does not apply when a judgment is entered by an order of the

court.     Pa.R.C.P. 237.1(b)(1) (“This rule does not apply to a judgment

entered . . . by an order of the court[.]”). Because Rule 237.3 governs relief

from the entry of a judgment of non pros pursuant to Rule 237.1, see

Pa.R.C.P. 273.3(a), it follows that Rule 237.3 does not apply when a court

orders the entry of the judgment. Thus, Rules 237.1, 237.3, and 1037(a) do

not apply when the trial court enters a judgment of non pros. See Pa.R.C.P.

237.1(a), (b)(1), 273.3(a), 1037(a).

         Instantly, Appellant commenced an action that proceeded to a

scheduled trial date.   Appellant did not file a complaint until the day he

appeared for trial, and the court entered an order dismissing the action for

failure to file a complaint. Under these circumstances, we conclude that the


                                    - 13 -
J-S59032-17


trial court did not err in sua sponte considering whether Appellant’s failure to

file a complaint before the scheduled trial date was a basis for non pros. Cf.

Pa.R.C.P. 218(a) (“[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.”); see also Peters

Creek Sanitary Auth. v. Welch, 681 A.2d 167, 171 (Pa. 1996).

Accordingly, Appellant’s contentions that the trial court erred in raising the

issue of the failure to file a complaint or in refusing to open the judgment of

non pros under Rule 237.3(b) warrant no relief. See Pa.R.C.P. 237.1(a)-(b),

273.3(a), 1037(a).

      Appellant next argues that the trial court erred in finding that the

delay in filing the complaint was not reasonable. He notes that there is “a

presumption of a compelling reason for delay . . . in cases awaiting

significant developments in the law.” Appellant’s Brief at 12 (citing Marino

v. Hackman, 710 A.2d 1108, 1111 (Pa. 1998)) (emphasis omitted).

Specifically, Appellant contends that his delay in filing a complaint was

justified by anticipated developments in the law, namely, the pending appeal

in Villani and the institution of criminal proceedings against him. Id.

      The trial court noted that “if Appellant reasonably believed he had a

cause of action against the Appellees in this matter, it was incumbent upon

him to plead his case in a timely fashion.”      Trial Ct. Op., 3/16/17, at 4.




                                     - 14 -
J-S59032-17


Furthermore, the court noted that Appellant attempted to have the matter

delayed, but was unsuccessful. Id. at 4-5. The court concluded:

         Having failed to succeed in his attempts to persuade the
         [c]ourt to delay the trial, it was not Appellant’s privilege to
         simply wait and see if the prior litigation resolved itself
         before trial and, if not, to file his complaint at the last
         moment and demand that the case either proceed in a way
         that would be prejudicial to the defendants or force the
         [c]ourt to grant a continuance to remedy a situation that
         Appellant himself deliberately brought about.

Id. at 5. We agree with the trial court.

      Appellant’s complaint contained a single count for a violation of the

Dragonetti Act. It is well settled that

         [t]he Dragonetti Act requires, in pertinent part, the
         following elements to establish a cause of action under the
         statute:

            (a) Elements of action.—A person who takes part
            in the procurement, initiation or continuation of civil
            proceedings against another is subject to liability to
            the other for wrongful use of civil proceedings:

               (1) He acts in a grossly negligent manner or
               without probable cause and primarily for a
               purpose other than that of securing the proper
               discovery, joinder of parties or adjudication of the
               claim in which the proceedings are based; and

               (2) The proceedings have terminated in favor of
               the person against whom they are brought.

Freundlich & Littman, LLC v. Feierstein, 157 A.3d 526, 532 (Pa. Super.

2017) (quoting 42 Pa.C.S. § 8351(a)).




                                     - 15 -
J-S59032-17


       Our review of Villani belies Appellant’s assertion that it constituted a

compelling reason for delaying the filing of his complaint. 9 In Villani, the

plaintiffs, the Seiberts prevailed in an underlying property action commenced

by Villani. Villani, 159 A.3d at 479. The Seiberts commenced a wrongful

use of civil proceedings action against Villani and her attorney for raising

frivolous claims during the property action.          Id.   The defendant-attorney

filed a preliminary objection asserting that the Dragonetti Act infringed on

the Pennsylvania Supreme Court’s constitutional authority to regulate the

conduct of lawyers.         Id. at 480.        The defendant-attorney thus argued

attorneys were immune from liability under the Dragonetti Act.           Id.   The

trial court sustained the defendant-attorney’s preliminary objection and

concluded, “The Dragonetti Act, as it pertains to lawyers, is unconstitutional

and unenforceable.” Id. at 484 (citation omitted). On June 15, 2016, the

Pennsylvania Supreme Court granted permission to appeal to consider the

following issue:

          Did the trial court err when it held that the Dragonetti Act,
          42 Pa.C.S. §8351 et seq., is an unconstitutional
          infringement upon the Supreme Court’s authority to
          regulate the conduct of attorneys under Article V, §10(c)
          of the Pennsylvania Constitution such that attorneys are
          immune from suit for Wrongful Use of Civil Proceedings?

Villani v. Seibert, 11 MM 2016 (Pa. June 15, 2016).

____________________________________________


9 Appellant did not raise the pending decision in Villani in his prior requests
to delay trial.



                                          - 16 -
J-S59032-17


       Although Villani signaled a possible significant shift in the law

surrounding the Dragonetti Act, the impact on Appellant’s claims was more

limited.   Specifically, Villani addressed the contention that the Dragonetti

Act was unconstitutional as applied to lawyers. See id. Villani could have

impacted the viability of Appellee’s actions against Appellee Law Firm and

Cohen.      However, the question posed in Villani did not alter the

fundamental elements of his proposed Dragonetti Act claim or the viability of

his claim against the non-attorney Appellees.10

       With respect to the ongoing criminal matter against him, we

sympathize with the apparent dilemma faced by Appellant.        However, we

discern no basis to agree with his argument that the mere filing of a

complaint for a Dragonetti Act violation would require him to incriminate

himself. The focus of the pleading would be that Appellees, in the Icehouse

Action, acted “in a grossly negligent manner or without probable cause and

primarily for a purpose other than that of securing the proper discovery,

joinder of parties or adjudication of the claim” and that the Icehouse Action

was terminated in his favor. See 42 Pa.C.S. § 8351(a). Indeed, Appellant
____________________________________________


10 We note that the Pennsylvania Supreme Court decided Villani on April 26,
2017 and reversed the trial court. Villani, 159 A.3d at 493. The Court
concluded that the defendant-attorney in that case “failed to establish that
the Dragonetti Act clearly and palpably violates the Pennsylvania
Constitution, or that this Court should per se immunize attorneys, as
attorneys, from the application of the substantive tort principles
promulgated by the political branch in the Dragonetti Act.” Id. at 492-93
(footnote omitted).



                                          - 17 -
J-S59032-17


ultimately filed a complaint on the day of the trial and did not complain that

he was required to incriminate himself or expose himself to further criminal

sanctions.

       Thus, the trial court did not abuse its discretion in determining that

Appellant’s conduct to “simply wait and see if the prior litigation resolved

itself” was unreasonable in light of the facts that a trial date had been set

and his previous attempts to seek extensions of time had failed. 11 See Trial

Ct. Op. at 5. Accordingly, Appellant’s second claim warrants no relief.

       Appellant’s third claim suggests that his action was meritorious and

that the trial court failed to balance his Fifth and First Amendments rights

implicated in this case. First, because we conclude that Appellant’s petition

to open did not state a reasonable explanation for the delay, we need not

address whether there was merit to his underlying claim.       See Pa.R.C.P.

3051(b); Madrid v. Alpine Mountain Corp., 24 A.3d 380, 384 (Pa. Super.

2011) (“Where a party fails to provide a reasonable excuse for the delay in

____________________________________________


11  Appellant has abandoned his prior assertion that it was reasonable to
delay filing his complaint based on developments in the Zoning Appeal. We
add, however, that following the October 29, 2015 remand from the
Pennsylvania Supreme Court, the Commonwealth Court, on July 12, 2017,
affirmed the trial court’s determination that Appellant lacked standing to
proceed in the Zoning Appeal. Scott v. City of Philadelphia, 154 C.D.
2013, 2017 WL 2960612 (Pa. Cmwlth. July 12, 2017) (unpublished
memorandum). Appellant filed a petition for allowance of appeal in the
Pennsylvania Supreme Court. Scott v. City of Philadelphia, 466 EAL 2017
(Pa. filed Dec. 17, 2017).




                                          - 18 -
J-S59032-17


prosecution of the underlying claim, a petition to open is properly denied.”).

Therefore, we decline to consider these issues.12 See Pa.R.C.P. 3051(b);

Madrid, 24 A.3d at 384.

       Lastly, Appellant claims that the trial court failed to acknowledge that

Appellees proceeded with unclean hands and failed to establish prejudice.

Appellant’s Brief at 22. Appellant emphasizes that Appellees admitted they

did not demand a complaint be filed due to concerns regarding Cohen’s

admission to the New York bar and his malpractice insurance. Id.

       Appellees    respond      that   they   had   no   obligation   to   urge   the

advancement of Appellant’s action by seeking a rule to have a complaint

issued. Appellees further contend that its motives regarding Cohen did not

rise to the level of fraud or wrongdoing. Appellees conclude that prejudice

was established because they were forced to go to trial without pleadings.

We agree with Appellees.

       In Jacobs, the Pennsylvania Supreme Court summarized the unclean

hands doctrine:

          A party who seeks the equitable relief provided by the
          entry of a judgment of non pros must do so with clean
          hands. The doctrine of unclean hands is

____________________________________________


12 In any event, as noted above, Appellant proffered no basis to support his
claim that the filing of a complaint required him to incriminate himself.
Appellant’s further assertion that proceeding in the instant action was
necessary to vindicate his First Amendment rights with respect to the Zoning
Appeal goes to possible bases of the underlying claim.



                                          - 19 -
J-S59032-17


            far more than a mere banalty. It is a self-imposed
            ordinance that closes the doors of a court of equity
            to one tainted with inequitableness or bad faith
            relative to the matter in which he seeks relief,
            however improper may have been the behavior of
            the defendant.      That doctrine is rooted in the
            historical concept of court of equity as a vehicle for
            affirmatively   enforcing    the    requirements    of
            conscience and good faith. . . . Thus while ‘equity
            does not demand that its suitors shall have led
            blameless lives’ . . . as to other matters, it does
            require that they shall have acted fairly and without
            fraud or deceit as to the controversy in issue.

Jacobs, 710 A.2d at 1103 (citations omitted).

      In Jacobs, the Court concluded that a defendant’s “dishonesty

regarding the identity of the driver of the vehicle [in a personal injury

action] constitutes bad faith which is directly relevant to the delay in [the]

prosecution from which she seeks relief.” Id. at 1103. In Mudd v. Nosker

Lumber, Inc., 662 A.2d 660 (Pa. Super. 1995), this Court determined that

a defendant who requested for a continuance misled the plaintiffs. Although

defendant   requested    the   continuance   for   the   apparent   purposes   of

negotiating a settlement agreement, the defendant used the additional time

to draft a motion for judgment of non pros. This Court refused to reward the

defendant for their tactics. Mudd v. Nosker Lumber, Inc., 662 A.2d 660,

664 (Pa. Super. 1995).

      Instantly, Appellees’ failure to force Appellant to file a complaint does

not rise to the level of fraud or deceit as to the controversy at issue.

Appellees were under no obligation to invoke Rule 1037(a) to require


                                    - 20 -
J-S59032-17


Appellant to file a complaint.   Moreover, Appellees did not manipulate the

court’s trial schedule or delay trial in order to strengthen their position for a

judgment of non pros.     Although Appellees were prepared to seek a joint

continuance before trial, they ultimately acceded to the trial court’s strong

suggestion to move for non pros, which the court could have also entered on

its own accord. Accordingly, we agree with Appellees that their conduct or

ulterior motives did not rise to the level of unclean hands.

      As to prejudice, this case stands in a somewhat unusual procedural

posture because the matter proceeded to a scheduled trial without a

complaint being filed until the day of trial.     In the context of inactivity,

prejudice may be “established by the death or absence of a material

witness” or “any substantial diminution of a party’s ability to properly

present its case at trial.” Jacobs, 710 A.2d at 1103 (citation and quotation

marks omitted). Although Rules 218 and 3051(b) do not refer to prejudice,

“prejudice has traditionally been a consideration in all non pros cases.” See

Valley Peat & Humus v. Sunnylands, Inc., 581 A.2d 193, 196-97 (Pa.

Super. 1990) (en banc).

         In each type of case, and in each unique factual situation,
         the general considerations as espoused in the three part
         test for the entry of a non pros judgment will be given
         precise definition. While the element of prejudice may be
         less important in Rule 218 cases, where it has been
         determined that a plaintiff is not ready for trial without
         satisfactory excuse, we believe that prejudice must still be
         considered by the trial court prior to determining, as an
         equitable matter, that the entry of a non pros judgment is
         appropriate. To ignore this factor in balancing the equities

                                     - 21 -
J-S59032-17


         in a non pros case, simply because the language of Rule
         218 fails to mention prejudice explicitly, would amount to
         an abuse of the trial court’s discretion.

Id. at 197. But see Peters Creek, 681 A.2d at 171 (noting that a party

who files an untimely answer must show just cause for the delay and that “it

is only after such a showing has been made that the trial court must require

the moving party to demonstrate prejudice resulting from the late

pleading”); Madrid, 24 A.3d 380, 384 n.4 (declining to consider prejudice

under Rule 3051(b)); Pa.R.C.P. 3051(c) & cmt. (noting 3051(c) alters

Madrid with respect to inactivity).

      To the extent it is necessary to consider prejudice, the trial court found

that Appellant’s failure to file a complaint until the morning of trial resulted

in prejudice. We agree. Appellant was aware of the trial date and while all

parties sought a continuance, those requests were denied. The failure to file

a complaint is fundamental to the orderly administration of the judicial

process. The failure to do so until the morning of a scheduled trial presents

obvious concerns regarding Appellant’s readiness to proceed.         Moreover,

Appellees had no meaningful opportunity to challenge or answer the

complaint and prepare a defense.           Appellant’s bare assertion that no

prejudice resulted from the delay because Appellees did not act earlier to

force him to file a complaint does not establish an abuse of discretion on the

part of the trial court.    Accordingly, we discern no basis upon which to

disturb the trial court’s balancing of the equities in this case.


                                      - 22 -
J-S59032-17


     Order affirmed.

     P.J.E. Bender Joins.

     Judge Ott Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:12/22/2017




                                  - 23 -
