J-A35039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ONLINE AUCTIONS C/O SUSAN MILLER,              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                     v.

BRIMAR ENTERPRISES, LLC AND MARK
SCHOLL, INDIVIDUALLY AND ACTING IN
HIS CAPACITY AS MANAGER OF BRIMAR
ENTERPRISES, LLC AND BRIAN KIGER,
INDIVIDUALLY AND ACTING IN HIS
CAPACITY AS MANAGER OF BRIMAR
ENTERPRISES, LLC,

                          Appellee                  No. 391 WDA 2014


             Appeal from the Order Entered February 25, 2014
            In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2009-10718


BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JANUARY 20, 2015

      Online Auctions C/O Susan Miller (“Tenant”) appeals from the order

dismissing her complaint after she failed to appear on the scheduled date of

her jury trial.   After careful review, we vacate the order and remand for

additional proceedings.

      The underlying facts in this matter stem from a landlord-tenant

dispute that arose in 2005. Tenant rented commercial space from Appellees,

(“Landlords”) on October 15, 2005, for a retail clothing store.   According to

Tenant, she notified Landlords on November 2, 2005, of a plumbing issue in

a space above her rental property.      She averred that on November 10,
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2005, the ceiling in her space began to collapse.     Tenant also maintained

that she informed Landlords of a serious roof leak at the property on

December 1, 2005, and that her ceiling collapsed on December 5, 2005,

damaging her personal property stored at the rental space.       In addition,

Tenant claimed that she notified Landlords on June 9, 2006, of a serious

water leak from the roof.      Tenant submitted that Landlords accepted

responsibility for the damage to her property, agreed to fix the roof, and

promised to reimburse her for her losses.       However, Tenant alleged that

Landlords failed to adequately correct the roof or water problems and did not

pay for the damage to her property.

     Subsequently, Landlords filed a complaint to evict Tenant before the

magisterial district judge on April 15, 2008.     Tenant filed a counterclaim

alleging that Landlords breached her lease, were negligent, and illegally

were trying to evict her. The magisterial district court conducted a hearing

on the matter on May 5, 2008. Landlords were not present due to a

scheduling error. The magisterial district judge entered an award for $8,010

in favor of Tenant. Landlords timely appealed and Tenant filed a complaint

with the court of common pleas alleging the same facts from her

counterclaim. The trial court dismissed Tenant’s complaint after she failed

to comply with discovery requests and orders.




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        Tenant appealed to this Court. We dismissed that appeal, on January

28, 2010, after Tenant failed to file a brief.1 However, Tenant did not vacate

the rental space and Landlords filed a complaint for eviction on November

19, 2009.     Tenant filed a counterclaim largely reasserting her prior claims

from the previous litigation. The magisterial district court entered an order

in favor of Landlords and denied Tenant’s counterclaims. Tenant appealed

and Landlords filed a complaint in eviction before the trial court. Tenant also

filed a complaint duplicative of her counterclaims from the November 19,

2009 litigation.      The eviction complaint and Tenant’s appeal from the

magisterial district court were consolidated, and Landlords prevailed. Tenant

again appealed.       This Court, however, quashed that appeal on May 16,

2012.

        Tenant’s separate complaint is the subject of this appeal.    Although

ostensibly arguing much of the same positions previously set forth in the

prior cases, Landlords did not raise below any arguments relative to res

judicata or collateral estoppel. Landlords did not challenge any of Tenant’s

claims as failing to state a cause of action. Ultimately, the case was placed

on the trial list and scheduled for trial on February 3, 2014.       The order

scheduling the trial was mailed to Tenant on January 14, 2014, and
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1
  Tenant misleadingly posits that we remanded the case to the trial court
because the trial court did not notify her of a hearing date and time. See
Tenant’s brief at 12 n.2.     The case was not remanded for additional
proceedings.



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indicated that no continuances would be granted.          Tenant attempted to

postpone the scheduled trial date, claiming that she did not learn of the

scheduled trial date until January 24, 2014.      Accordingly, on January 27,

2014, Tenant filed with the trial court a motion for continuance seeking a

new trial date.2 The court did not rule on that motion, and maintained on

the date of trial that it had not addressed the motion because it had not

been presented in motions court or left with the court.

       On the day of the scheduled trial, Tenant did not appear.     However,

her mother contacted Landlords’ counsel by phone at approximately 8:15

a.m., and indicated that she was taking Tenant to the emergency room.

According to Landlords’ attorney, he advised Tenant’s mother that she

should contact the court since he did not control whether the trial was

postponed. The record reflects that the trial court received a message from

Tenant’s mother at 9:22 a.m., who indicated that she was taking her

daughter to Jefferson Hospital and provided a contact number.         Tenant’s

mother also telephoned the district attorney’s office stating that she was

transporting Tenant to the Mon Valley Hospital. That office emailed the trial

judge this message.        The court contacted Jefferson Memorial Hospital and

spoke with an emergency room nurse who acknowledged that Tenant had

____________________________________________


2
  Tenant erroneously maintains in her brief that she filed this motion on
January 23, 2014. The motion was not docketed until January 27, 2014.




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arrived at that hospital. According to the court, it asked the hospital to fax

any papers indicating what treatment Tenant was seeking and left a fax

number. At this juncture, it was shortly after 11:00 a.m., and the court, at

the suggestion of Landlords’ counsel, recessed until 1:00 p.m.

      When the court reconvened, it placed on the record that hospital staff

had informed the court that Tenant was being treated for a breathing

ailment and was unsure whether Tenant could participate at trial. According

to the court, the emergency room physician was unable to state that Tenant

could appear. A member of the court’s staff also spoke with Tenant’s father,

who was at the hospital, and requested that the doctors fax a diagnosis of

Tenant, and indicated that the court would wait until 1:00 p.m. to begin jury

selection. Thereafter, Tenant’s mother informed the court that Tenant would

not be attending. Importantly, the emergency room department did fax a

form that set forth that Tenant was being treated for respiratory problems

and a rash, and asked that Tenant be excused from court attendance.

      Landlords moved for dismissal, maintaining that it appreciated the

doctor’s excuse, but that counsel had been involved with the case for a

substantial period and that this was “just one more opportunity for [Tenant]

to take advantage of the system and to avoid facing responsibility of either

resolving the case amicably or dismissing it or prosecuting it.” N.T., 2/3/14,

at 17.   The court then granted Landlords’ oral motion to dismiss for failure

to prosecute. It added that Tenant could not resurrect the case unless she


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paid “all costs for what has occurred here today and that would include the

cost of the jury being here, whatever is outstanding to the witness that she

subpoenaed and I would as [Landlords’ counsel] to calculate the sums that

they have charged and have been taken out-of-pocket due to this

unforeseen circumstance to the Court.” Id.

      Tenant filed a timely petition seeking to vacate the order and

requesting a new trial. The court denied that motion on February 25, 2014.

This timely appeal ensued. The trial court directed Tenant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Tenant complied, and the trial court authored its Pa.R.A.P. 1925(a) decision.

The matter is now ready for our review.         Tenant presents the following

issues for this Court’s consideration.

   1. Did the trial court commit [an] error of law, abuse of discretion
      and violation of Miller’s constitutional rights by dismissing Miller’s
      case with prejudice despite the fact that the trial court, the trial
      judge, and the defendants’ lawyer were immediately notified of
      Miller’s emergency medical condition, and therefore all parties
      possessed current and positive knowledge and information that
      Miller had been hospitalized from approximately 8:30 AM until
      1:04 PM on February 3, 2014?

   2. Did the trial court commit [an] error of law and abuse [its]
      discretion by denying, without any proffered or supported legal
      reason or other explanation, Miller’s petition for post-trial relief,
      petition to vacate order and petition for a new trial, despite the
      court having express knowledge of Miller’s emergency medical
      condition on February 3, 2014?

   3. Did the trial court commit [an] error of law, abuse of discretion
      and violation of Miller’s constitutional rights by entertaining and
      ruling on a motion (encouraged by the trial court judge)
      presented by defense counsel on February 3, 2014, without

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     Miller being present, or without her having been made aware
     that said motion was being presented?

  4. Did the trial court commit [an] error of law, abuse of discretion
     and violation of Miller’s constitutional rights by imposing
     onerous, arduous, and deliberately disadvantageous sanctions
     and penalties upon Miller who was proceeding pro se and in
     forma pauperis, compelling her to expend monies the judge
     knew Miller did not have, and in effect, prohibiting and
     precluding Miller from protecting her constitutional rights and
     interesst in the proceedings?


  5. Did the trial court commit [an] error of law, abuse of discretion
     and violation of Miller’s constitutional rights by exhibiting
     prejudice, bias, and intemperance by failing to issue a ruling on
     Miller’s January 23, 2014 non-hearing motion asking for a
     continuance and new trail [sic] date, and further, without
     conducting a hearing or affording Miller an opportunity to
     respond to a motion presented by defense counsel which the
     judge granted?


  6. Did the trial court commit [an] error of law, abuse of discretion
     and violation of Miller’s constitutional rights by proceeding at
     trial on February 3, 2014 despite having express knowledge of
     deficient service of said trail [sic] date, despite having
     knowledge of Miller’s lack of opportunity to subpoena all
     necessary witnesses, despite having knowledge that Miller had
     not received necessary transcripts intended for her use at trial
     until February 5, 2014; two (2) days post-trial, and most
     importantly, despite having knowledge of Miller’s emergency
     medical circumstances?


  7. Did the trial court commit [an] error of law, abuse of discretion
     and violation of Miller’s due process constitutional rights by
     exhibiting obvious indifference and bias towards Miller, a pro se
     litigant, throughout the proceedings?


  8. Did the trial court commit [an] error of law, abuse of discretion
     and violation of Miller’s constitutional rights by denying to Miller
     the right and the the [sic] opportunity to be hear at trail [sic]
     before proceeding to dismiss her case?


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    9. Did the trial court commit [an] error of law, abuse of discretion
       and violation of Miller’s constitutional rights by proceeding to
       entertain and rule on various motions throughout the
       proceedings which were presented by defense counsel despite
       Miller’s averments that service of those various motions was
       non-existent?


    10.      Did the trial court commit [an] error of law, abuse of
       discretion and violation of Miller’s constitutional rights by
       dismissing with prejudice Miller’s case despite having concrete
       and substantiated evidence that Miller was hospitalized in the
       emergency room at Jefferson Regional Medical Center near
       Pittsburgh, Pennsylvania from 8:30 AM until 1:04 PM on
       February 3, 2014?

Tenant’s brief at 3-6 (emphasis in original).

       Although Tenant levels ten claims in her brief, she provides only one

argument, noting that her issues are closely related.3          Since Tenant

concedes that her claims are similar and combines her arguments, we do not

address each issue separately. Essentially, Tenant’s core complaint is that

the trial court erred in not continuing the case and dismissing this matter

where she notified the court and Landlords that she suffered a medical

emergency and was unable to attend the scheduled trial.

       Pa.R.C.P. 218 states in pertinent part:

       (a)    Where a case is called for trial, if without satisfactory
              excuse a plaintiff is not ready, the court may enter a

____________________________________________


3
  We disapprove of Tenant’s repetitive and overlapping claims and her
violation of the appellate rules of procedure. See Pa.R.A.P. 2119; Pa.R.A.P.
2116.



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              nonsuit on motion of the defendant or a non pros on the
              court's own motion.

              ....

       (b)    A party who fails to appear for trial shall be deemed to be
              not ready without satisfactory excuse.

Pa.R.C.P. 218. The comment to the rule provides that, “[t]he mere failure to

appear for trial is a ground for the entry of a nonsuit or a judgment of non

pros[.]”4    However, the illness of a party and counsel is grounds for a

continuance. Pa.R.C.P. 216 (“The following are grounds for a continuance . .

. . (2) Illness of counsel of record, a material witness, or a party.”). Where

the court requests a certificate from a physician, it must be furnished and

indicate “that such illness will probably be of sufficient duration to prevent

the ill person from participating in the trial[.]” Pa.R.C.P. 216(2).

       “A ‘satisfactory excuse’ that may prevent the operation of the Rule

must be an excuse that would constitute a valid ground for granting a

continuance, such as an agreement of counsel; illness of counsel, a party, or


____________________________________________


4
   Neither party nor the trial court indicates whether the order entered a
nonsuit or a judgment of non pros. The distinction is relevant for purposes
of res judicata as a proper grant of non pros has no res judicata implications,
in contrast to a nonsuit. In addition, the methods for challenging a nonsuit
and judgment of non pros are distinct. See Comment to Pa.R.C.P. 218 (“A
nonsuit is subject to the filing of a motion under Rule 227.1(a)(3) for post-
trial relief to remove the nonsuit and a judgment of non pros is subject to
the filing of a petition under Rule 3051 for relief from a judgment of non
pros.”).




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a material witness[.]”        GOODRICH AMRAM (2d ed.) § 218:3 (footnote

omitted); Manack v. Sandlin, 812 A.2d 676, 681 (Pa.Super. 2002).

       The decision to grant or deny a continuance as well as to enter either a

nonsuit or non pros are governed by an abuse of discretion standard.

Felsing v. Beining, 345 A.2d 290 (Pa.Super. 1975) (refusal to grant a

continuance considered under abuse of discretion standard); Dietzel v.

Gurman, 806 A.2d 1264 (Pa.Super. 2002) (review of motion denying

removal of compulsory nonsuit is for an abuse of discretion); Florig v.

Estate of O'Hara, 912 A.2d 318, 323 (Pa.Super. 2006) (“The standard

governing our review of a trial court decision to deny a petition to open a

judgment of non pros is one of abuse of discretion.”).      As neither party’s

argument focuses on the court’s dismissal of the case by discussing the law

relative to either a nonsuit or judgment of non pros,5 but hone in on the

court’s decision not to continue the trial, we will limit our analysis to the

same.

       Here, we find that Tenant presented a satisfactory excuse, precluding

dismissal. Tenant, via her mother and father, notified opposing counsel and

the court of her illness and trip to the emergency room.        The illness of

____________________________________________


5
  We are cognizant that to open a judgment of non pros, a party must show
that there is a meritorious cause of action. Pa.R.C.P. 3051. Our vacating of
the trial court’s order, however, should not be read as suggesting that all of
Tenant’s causes of action are meritorious since the questions argued relate
to failing to continue the case.



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counsel and a party is a legitimate excuse for failing to appear. After the

court requested a doctor’s excuse, Tenant faxed a signed doctor’s excuse

from the hospital. That excuse clearly asked that Tenant be excused from

attending trial on that date. The incident was not a feigned trip that did not

occur.   The court’s observation that the doctor’s signature was difficult to

read does not suggest any impropriety or that a doctor did not sign the

form. Landlords’ reliance on Davidson v. Davidson, 262 Pa. 520 (1919), is

unpersuasive. That case did not involve an illness that arose on the date of

trial. Rather, the defendant was in Florida on the advice of his doctor and

elected not to return.     The High Court reasoned that the denial of a

continuance in such circumstances was not improper where attendance did

not involve a serious risk to the defendant's health.

      Instantly, Tenant’s respiratory problems occurred on the date of trial

and precluded her from being present, and she presented a valid doctor’s

excuse in accordance with the court’s request.     This Court has opined that

dismissal, due to its severe nature, should occur only in extreme

circumstances. See Stewart v. Rossi, 681 A.2d 214 (Pa.Super. 1996). We

find this case does not meet that criteria. Since the trial court abused its

discretion in dismissing the case where Tenant’s absence was due to a

medical emergency, we vacate the order and remand for additional

proceedings.

      Order vacated. Case remanded. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




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