J. A15020/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BECRETT, L.L.C.,               :             IN THE SUPERIOR COURT OF
                               :                   PENNSYLVANIA
                   Appellant   :
                               :
               v.              ::
                               ::
R & H RESOURCES, INC.;         :
JOSEPH M. RASMUS AND           :
DIANE RASMUS; DOUGLAS HOGREBE, :                  No. 1460 MDA 2017
CHERY HOGREBE; AND             :
NATIONAL COOPERATIVE BANK, FSB :


               Appeal from the Order Entered August 23, 2017,
               in the Court of Common Pleas of Luzerne County
                        Civil Division at No. 201301823


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

                                              FILED SEPTEMBER 12, 2018


DISSENTING MEMORANDUM STATEMENT BY FORD ELLIOTT, P.J.E.:

     I respectfully dissent to the majority’s disposition in this matter. Based

on Thorn v. Borough of Clearfield, 218 A.2d 298 (Pa. 1966), and Estate

of Gasbarini v. Medical Center of Beaver County, Inc., 409 A.2d 343 (Pa.

1979), I believe that we have before us a situation in which the judgment

should be opened.

     In Thorn, the Supreme Court of Pennsylvania reversed the denial of a

petition to open a judgment of non pros because, shortly after filing a

praecipe for the appellants, the appellants’ attorney had been unable to

perform all of his duties, including filing a complaint, due to aortic valve
J. A15020/18

disease, insufficient blood supply to his brain, and general concern for his own

health. Thorn, 218 A.2d at 298-299.

      Our supreme court determined:

              We believe that the diminished health and ability of
              appellants’ attorney, followed by his death, are
              equitable considerations sufficient to set aside a
              judgment of non pros, and reasonably explain the
              reason for the delay in filing the complaint.

              [The Thorns] in this case should not be denied their
              day in court because of the diminished health of their
              counsel. [The Thorns] had no way of knowing this
              case was not being diligently prosecuted and should
              not be made to suffer because of the health of their
              attorney.

Id. at 299.

      In Gasbarini, the Supreme Court of Pennsylvania determined that

equity demanded that a litigant should have the opportunity to file an

amended complaint when an attorney informed his client that he was

providing proper representation when he neglected to respond to preliminary

objections, was suspended from the practice of law, and did not appear when

the preliminary objections were sustained and the complaint dismissed.

Gasbarini, 409 A.2d at 344.

      Here, Attorney Rowland told appellant that he was handling the case

and it would soon be settled. Attorney Rowland’s serious health problems

apparently prevented him from executing his duties as an attorney for

appellant. Attorney Rowland admitted that he did not inform appellant about

the Bank’s discovery request, the March 28, 2016 court order compelling


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discovery and awarding attorney’s fees to the Bank, the Bank’s second motion

for summary judgment, and the trial court’s order granting the motion for

summary judgment and awarding the Bank approximately $34,578 in

attorney’s fees. Attorney Rowland further admitted lying to appellant. (Notes

of testimony, 8/2/17 at 65-73.)

      As   in   Thorn    and   Gasbarini,     appellant   did   not   know    that

Attorney Rowland was not providing adequate representation and was not

diligently representing its interests. I believe that consideration of the equities

in this case require the opening of the judgment. I would reverse.




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