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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


JOHN KLIMCHAK                              :     IN THE SUPERIOR COURT OF
          Appellant                        :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
TROY THOMAS                                :
                                           :
                                           :     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): No. AR-14-004347


BEFORE: OLSON, DUBOW AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED OCTOBER 26, 2016

        Appellant, John Klimchak, plaintiff below, appeals from the Judgment

entered in the Court of Common Pleas of Allegheny County on December 7,

2015, following the denial of his Post-Trial Motion. After careful review, we

vacate the Judgment entered in favor of Appellee, Troy Thomas, and remand

for a new trial.

        Appellant, through counsel Charles J. Grudowski, Esquire, filed a

landlord-tenant action against pro se Appellee on October 17, 2014, to

recover $17,330 for past-due rent and late fees. On December 18, 2014,

Appellee filed an Answer, New Matter, and Counterclaim.       Appellant filed

Preliminary Objections to Appellee’s Counterclaim on January 21, 2015. The


*
    Retired Senior Judge Assigned to the Superior Court.
J.S45030/16

trial court sustained Appellant’s Preliminary Objections on January 30, 2015,

and dismissed Appellee’s Counterclaim.          Appellee filed an Amended

Counterclaim on February 26, 2015, to which Appellant filed an Answer on

March 27, 2015.

      This matter proceeded to arbitration, and on April 8, 2015, the Board

of Arbitrators issued an award for Appellant.      Appellee filed a Notice of

Appeal from the Board of Arbitrators’ decision on May 7, 2015.

      The trial court docket reflects that on June 29, 2015, the court

scheduled this case for trial on November 5, 2015. However, when the case

was called to trial on that day, neither Appellant nor his counsel was present

in court. At the beginning of the proceeding, the trial court stated on the

record:

          Now, we noted on here that there was an attorney’s
          appearance listed on the case and it has never been
          removed. We made a phone call a half an hour ago or
          something and he has indicated that he no longer has any
          contact, nor is he representing [Appellant] . . . and he
          wasn’t coming over here.

N.T., 11/5/15, at 2.

      The trial court then proceeded to trial on Appellee’s counterclaim and,

apparently, on Appellant’s claim.   At the conclusion of the proceeding, the

trial court stated in open court that, because Appellant and his counsel failed

to appear, it would enter a verdict in favor of Appellee on both Appellant’s

claim and Appellee’s counterclaim. Id. at 4.         At no time during the

proceedings did Appellee move for entry of a nonsuit. Id. at 1-4.


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          The trial court then issued two separate, written “non-jury verdicts”

that were entered on the docket.         See Non-Jury Verdict on Appellant’s

Claim, 11/10/15, at 1; Non-Jury Verdict on Appellee’s Counterclaim,

11/10/15, at 1. The written verdict sheets are, in all substantial respects,

identical to the trial court’s in-court pronouncement.

          On November 13, 2015, Appellant, through new counsel, Jack L.

Franks, Esquire,1 filed a Motion for Post-Trial Relief in which Appellant

requested that the trial court vacate its non-suit verdict in Appellee’s favor,

or, in the alternative, “reconsider the weight of the evidence presented at

trial.”     See Mot. for Post-Trial Relief, 11/13/15, at 1 (unpaginated).

Appellant alleged in his Motion that, after receiving Appellee’s Notice of

Arbitration Appeal, he informed his attorney, Charles J. Grudowski, Esquire,

that he would proceed pro se, but that Attorney Grudowski failed to file a

Motion to Withdraw as Counsel.        Id. at 2-3.   Appellant claimed that his

former counsel did not give him notice of the November 5, 2015 trial date,

and therefore he failed to appear. Id. at 3-4. Appellant also alleged in his

Motion that when the trial court contacted Attorney Grudowski on the day of

trial to ascertain his reason for not appearing, Attorney Grudowski informed

the court that he was unaware of the trial date because he no longer

represented Appellant. Id.

1
 On November 13, 2015, Jack L. Franks, Esquire also filed a Praecipe for
Substitution of Counsel.




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      The trial court denied Appellant’s Post-Trial Motion on November 13,

2015, without holding a hearing.      Appellant filed a Praecipe for Entry of

Judgment and a Notice of Appeal on December 7, 2015. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following claims for our review:

         Whether the [c]ourt below abused its discretion and/or
         rendered a decision unsupported by the evidence and/or
         erred as a matter of law in denying Appellant’s Motion for
         Post Trial Relief, wherein:

            1. The [c]ourt became aware the day of trial that the
            attorney of record for the Appellant was no longer
            representing him and when contacted by the [c]ourt
            informed [c]ourt personnel that the Appellant had no
            prior notice of the trial date.    And even with this
            knowledge contrary to the normal procedures of the
            Allegheny County Courts to notify unrepresented parties
            in writing of trial dates the [c]ourt erroneously
            commenced the proceeding without any notice to the
            Appellant.

            2. The evidence submitted of record was not sufficient
            for a reasonable fact finder to conclude that the alleged
            lost items presented were taken by the Appellant and
            were of the significant value awarded.

Appellant’s Brief at 4.

      Before we consider the merits of the issues Appellant raises on appeal,

we must determine whether this appeal is properly before us. With respect

to Appellant’s claims against Appellee, the trial court’s “verdict” was actually

a judgment of non pros as provided for in Pa.R.C.P. 218(a).        Rule 218(a)

provides, in relevant part, that “[w]here a case is called for trial, if without

satisfactory excuse a plaintiff is not ready, the court may enter . . . a non


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pros on the court’s own motion.” Pa.R.C.P. 218(a). To obtain relief from a

judgment of non pros, a party must file a Petition under Pa.R.C.P. 3051.

See Pa.R.C.P. 3051 Comment. See also Pa.R.C.P. 218 note; Pa.R.C.P. 218

Explanatory Comment—1993.2         A “Rule 3051 petition to open serves the

same function as a post-trial motion.” Sahutsky v. H.H. Knoebel Sons,

782 A.2d 996, 1000 (Pa. 2001).       “Both filings exist to afford the Court of

Common Pleas an opportunity to correct alleged errors before an appeal is

pursued.” Id.

      Generally, a failure to timely file a petition to open or strike a

judgment of non pros “operates as a waiver of any right to address issues

concerning the underlying judgment.” Bartolomeo v. Marshall, 69 A.3d

610, 614 (Pa. Super. 2013). However, our Supreme Court has recognized

that the Rules of Civil Procedure are to be “liberally construed to secure the

just, speedy and inexpensive determination of every action or proceeding to

which they are applicable. The court at every stage of any such action or

proceeding may disregard any error or defect of procedure which does not

affect the substantial rights of the parties.”      Pa.R.C.P. 126.     See e.g.,

Kurtas v. Kurtas, 555 A.2d 804, 806 (Pa. 1989) (recognizing that “at times


2
  The 1993 Explanatory Comment provides: “If the court enters a judgment
of non pros . . . and there exists a sufficient excuse, the aggrieved party
may present the excuse through a . . . petition to open the judgment. . . .
The petition . . . 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.”



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the rigid application of our rules does not serve the intended purpose of

justice and fairness but rather results in a harsh or even unjust

consequence. For this reason, [the Supreme Court] promulgated Pa.R.C.P.

126 wherein [it] granted to the trial court latitude to overlook any procedural

defect which does not prejudice the rights of a party”) (internal emphasis

omitted).

      In the instant matter, rather than enter on the docket a judgment of

non pros in Appellee’s favor, the trial court entered what it called a “verdict.”

In response, Appellant filed a Post-Trial Motion. Because Appellant’s Post-

Trial Motion complied with all of Rule 3051’s substantive requirements for

obtaining relief from a judgment of non pros, we conclude that the filing of

his Post-Trial Motion was sufficient to preserve Appellant’s issues on appeal.

      In his first issue on Appeal, Appellant challenges the trial court’s denial

of his request for a new trial, based on his proffer of a “satisfactory excuse

for [his] failure to appear” at the November 5, 2015 trial. Appellant’s Brief

at 4, 7.

      “[O]ur standard of review when faced with an appeal from the trial

court’s denial of a motion for a new trial is whether the trial court clearly and

palpably committed an error of law that controlled the outcome of the case

or constituted an abuse of discretion.” Schuenemann v. Dreemz, LLC, 34

A.3d 94, 98-99 (Pa. Super. 2011) (citation omitted); Morrison v.

Dep’t of Pub. Welfare, Office of Mental Health, 646 A.2d 565, 570-71



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(Pa. 1994).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Sabella v. Estate of Milides, 992 A.2d 180, 185 (Pa. Super. 2010)

(citation omitted).

      Pennsylvania Rule of Civil Procedure 218(c) provides: “A party who

fails to appear for trial shall be deemed to be not ready without satisfactory

excuse.” Pa.R.C.P. 218(c).

         A “satisfactory excuse” must be an excuse that would
         constitute a valid ground for a continuance. Examples of
         such valid grounds include agreement of counsel; illness of
         counsel, a party, or a material witness; inability to
         maintain the testimony of an absent witness by means of
         discovery; or such other grounds as may be allowed by the
         court.

Breza v. Don Farr Moving & Storage Co., 828 A.2d 1131, 1134-35 (Pa.

Super. 2003) (citations and some quotation marks omitted).

      Om Appeal, this Court may review the record to determine if the

appellant proffered a satisfactory excuse.        See, e.g., McFarlane v.

Hickman, 492 A.2d 740, 742-43 (Pa. Super. 1985) (where, after reviewing

the record, this Court determined that the appellant’s excuses for failing to

appear at trial were insufficient); and Masthope Rapids Property Owners

Assn. v. Ury, 687 A.2d 70, 72-73 (Pa. Cmwlth. 1996) (after considering the



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appellant’s post-trial motion, the trial court’s opinion and orders, and the

appellant’s Pa.R.A.P. 1925(b) statement, all of which were matters of record

which    fully   discussed   the   issues   and   arguments   and   involved,   the

Commonwealth Court determined that a hearing on the post-trial motion

was not necessary because “it is evident from the record in this case that

the trial court considered and rejected all of [the a]ppellant’s arguments

regarding the failure to appear”).3

        In his Post-Trial Motion, Appellant alleged that following the arbitration

hearing Appellant discharged Attorney Grudowski, but Attorney Grudowski

failed to withdraw his representation as he was required to do.4          Because

Attorney Grudowski failed to withdraw, he was still Appellant’s attorney of

record, and should have seen the November 5, 2015 trial date published in

the Pittsburgh Legal Journal.5 Had Attorney Grudowski withdrawn, Appellant


3
 Although we acknowledge that decisions of the Commonwealth Court are
not binding on this Court, we may choose to follow them if we find them
persuasive. See Beaston v. Ebersole, 986 A.2d 876, 881 (Pa. Super.
2009).
4
 Pennsylvania Rule of Professional Conduct 1.16(a) provides: “a lawyer shall
not represent a client or, where representation has commenced, shall
withdraw from representation of a client if: . . .the lawyer is discharged.”
Pa.R.Prof.Conduct 1.16(a). Further, Rule 1.16(c) states: “[a] lawyer must
comply with applicable law requiring notice to or permission of a tribunal
when terminating representation.” Pa.R.Prof.Conduct 1.16(c).
5
    Allegheny County Local Rule 214(5) provides:

           Initial Publication of Trial Lists. The trial dates for each
           term and the cases scheduled to be tried during that term



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would have received a mailed notice of the trial date.              Appellant—who

wished to proceed pro se, thought he was proceeding pro se, and effectively

was proceeding pro se—did not receive notice of the trial date that was

published in the limited-circulation Pittsburgh Legal Journal.        See Mot. for

Post-Trial Relief at 2-4 (unpaginated).

      Following our review of the record and the relevant case law, we find

that Appellant proffered a “satisfactory excuse” for failing to appear at the

November 5, 2015 trial, and the trial court, thus, abused its discretion in

denying      Appellant’s   Post-Trial   Motion.    We    conclude   that      Attorney

Grudowski’s failure to withdraw as counsel, which led to the Allegheny

County Court of Common Pleas not notifying Appellant directly about the

trial date, was a satisfactory excuse for Appellant not appearing on the day

of trial.     Accordingly, we reverse the Order of the trial court denying




            are published approximately one hundred and twenty
            (180) [sic] days prior to the beginning of each of the trial
            terms in the Pittsburgh Legal Journal. It shall be the
            responsibility of in-county counsel to monitor the
            Pittsburgh Legal Journal for the initial listing of a case on a
            trial list. Publication of trial lists in the Pittsburgh
            Legal Journal is the only form of notice given to in-
            county counsel of the listing of a case for trial.
            Unrepresented parties and out-of-county counsel
            who submit notice of their address to the Calendar
            Control Office of the Civil Division (see Local Rule
            212.1(3)) are mailed a notice of the earliest trial
            date.

Allegheny County Local Rule 214(5) (emphasis added).



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Appellant’s Post-Trial Motion, vacate the Judgment entered in favor of

Appellee, and remand for a new trial.

      Because of our resolution of Appellant’s first issue, we need not reach

the merits of his second issue.

      Judgment vacated.     Case remanded for proceedings consistent with

this Memorandum. Jurisdiction relinquished.

Judge Platt joins the memorandum.

Judge Olson files a Concurring/ Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2016




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