Woidislawsky, A. v. Viola, J. ( 2020 )

J. A21039/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ABRAHAM WOIDISLAWSKY AND : IN THE SUPERIOR COURT OF
RITA WOIDISLAWSKY, H/W, : PENNSYLVANIA
:
Appellants :
:
v. :
:
JOSEPH R. VIOLA, ESQUIRE, :
ADMINISTRATOR OF THE ESTATE OF :
LOUIS MENAPACE, IV, DECEASED :
:
------------------------------------------- :
:
ABRAHAM WOIDISLAWSKY AND :
RITA WOIDISLAWSKY, H/W :
:
v. :
: No. 3355 EDA 2019
LOUIS MENAPACE, IV, LOUIS :
MENAPACE AND CAROL MENAPACE :
Appeal from the Judgment Entered November 14, 2019,
in the Court of Common Pleas of Philadelphia County
Civil Division at Nos. 170601682, 180502088
ABRAHAM WOIDISLAWSKY AND : IN THE SUPERIOR COURT OF
RITA WOIDISLAWSKY, H/W, : PENNSYLVANIA
:
v. :
:
JOSEPH R. VIOLA, ESQUIRE, :
ADMINISTRATOR OF THE ESTATE OF :
LOUIS MENAPACE, IV, DECEASED :
:
------------------------------------------- :
:
J. A21039/20
ABRAHAM WOIDISLAWSKY AND RITA :
WOIDISLAWSKY, H/W, :
:
Appellants :
:
v. :
: No. 3356 EDA 2019
LOUIS MENAPACE, IV, LOUIS :
MENAPACE, AND CAROL MENAPACE :
Appeal from the Judgment Entered November 14, 2019,
in the Court of Common Pleas of Philadelphia County
Civil Division at Nos. 170601682, 180502088
BEFORE: LAZARUS, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 20, 2020
In these consolidated appeals, appellants, Abraham and
Rita Woidislawsky (plaintiffs below), appeal from the judgment 1 entered on
November 14, 2019, in favor of appellees, Joseph R. Viola, Esq., administrator
of the estate of Louis Menapace, IV, and Louis and Carol Menapace
(defendants below), in the Court of Common Pleas of Philadelphia County.
After careful consideration, we affirm.
We take the underlying facts and procedural history from our review of
the certified record and the trial court’s February 7, 2020 opinion. In June
1 In the caption of their brief, appellants purport to appeal from the order
denying their post-trial motions. However, an appeal does not lie from the
denial of post-trial motions. Jackson v. Kassab, 812 A.2d 1233, 1233 n.1
(Pa.Super. 2002), appeal denied, 825 A.2d 1261 (Pa. 2003) (parallel citation
omitted). We have accordingly corrected the caption.
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J. A21039/20
2017, appellants commenced the instant action, which arose out of a
motor vehicle collision. Following the death of former defendant
Louis Menapace, IV, appellants filed a new action against Joseph Viola, Esq.,
the administrator of his estate. The trial court consolidated the cases in
December 2018. Because of the consolidation, the court issued a new case
management order on March 26, 2019. The order directed the parties be
ready for trial by September 3, 2019, because the matter would be heard
during the September 2019 trial pool.
On September 3, 2019, appellants filed a motion for extraordinary relief
seeking a continuance.2 Appellees opposed the motion, and the motions judge
denied it on September 18, 2019. The case was assigned to the trial judge
and set for trial on September 23, 2019. That morning, appellants’ counsel
appeared with only one of his clients and requested a continuance; he stated
there had been a miscommunication with his client Abraham Woidislawsky,
and Mr. Woidislawsky was undergoing a routine colonoscopy that morning and
was unavailable for trial. (Notes of testimony, 9/23/19 at 4-5.) When pressed
by the trial court, counsel admitted, even if Mr. Woidislawsky were present,
he was not ready for trial because Mr. Woidislawsky’s treating physician was
2 The motion is not contained in the certified record, however, no one disputes
the basis for the motion, which was error on the part of appellants’ counsel,
who misread the scheduling order, and did not know the case was set for trial
in September. (See trial court opinion, 2/7/20 at 2 n.1.)
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unavailable to testify until October because of the Jewish High Holidays. (Id.
at 17-20.)
Appellees’ counsel opposed the motion. He noted, despite court
involvement, appellants’ counsel failed to attend the deposition of appellees’
expert witness and did not provide appellees with their own expert report until
the day before trial. (Id. at 14-15, 21-22.) Appellees’ counsel acknowledged
his clients had admitted liability but maintained there was a dispute as to
causation and damages; he noted he could rearrange his schedule to be
available the next day for trial, but would have difficulties with other dates.
(Id. at 20-21.) However, appellants’ counsel admitted the doctor was
unavailable for the next day, and appellant Rita Woidislawsky was unavailable
the rest of the week because she had scheduled medical procedures. (Id. at
17-20.) The trial court denied the motion for a continuance and granted
appellees’ counsel’s motion for a directed verdict. (Id. at 27-30.)
On October 3, 2019, appellants filed a post-trial motion, which the trial
court denied on November 6, 2019. Judgment by praecipe was entered on
November 14, 2019. The instant timely appeal followed. The trial court did
not order appellants to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On February 2, 2020, the trial court
issued an opinion.
On appeal, appellants raise the following issues for our review:
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1. Did the [t]rial [c]ourt err in [sic] abuse of its
discretion, by entering and then refusing to
remove the nonsuit and/or “directed verdict”
entered against [a]ppellants, despite the fact
that [a]ppellants presented uncontroverted
documentary and testamentary evidence
demonstrating that pursuant to Pa.R.Civ.P. 218,
[a]ppellants had a satisfactory excuse both for
not being ready for trial when called and for the
absence of Mr. Woidislawsky from trial on
September 23, 2019, notwithstanding the fact
that the Woidislawskys did not alert either their
trial counsel and by extension the [t]rial [c]ourt
regarding this scheduling conflict prior to the
case being called for trial?
2. Did the [t]rial [c]ourt err by entering and then
refusing to remove its “directed verdict” when it
applied Pa.R.Civ.P. 226(b) to grant the “directed
verdict” in a non-jury trial because [a]ppellants
were not ready for trial when called (although
they had a satisfactory excuse), when
Pa.R.Civ.P. 226 applies to jury instructions, and,
thus, the directed verdict procedure is improper
in the context of a trial without a jury?
Appellants’ brief at 3.
In their first issue, appellants contend the trial court erred in denying
their request for a continuance and finding them not ready for trial. We
disagree.
We review this issue with the following principles in mind. “It is well
settled that the decision to grant or deny a request for a continuance is within
the sound discretion of the trial court.” Commonwealth v. Prysock, 972
A.2d 539, 541 (Pa.Super. 2009) (citation omitted). “Further a trial court’s
decision to deny a request for a continuance will be reversed only upon a
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showing of an abuse of discretion.” Id. As we have consistently stated, an
abuse of discretion is not merely an error in judgment. Id. Rather, discretion
is abused when “the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence or the record.” Id.Pennsylvania Rule of Civil Procedure 216 addresses grounds for a
continuance and provides, in pertinent part:
(A) The following are grounds for a continuance:
(1) Agreement of all parties or their
attorneys, if approved by the
[c]ourt;
(2) Illness of counsel of record, a
material witness, or a party. If
requested a certificate of a
physician shall be furnished, stating
that such illness will probably be of
sufficient duration to prevent the ill
person from participating in the
trial;
....
(4) Such special ground as may be
allowed in the discretion of the
court[.]
Pa.R.Civ.P. 216(a)(1), (2), and (4). Moreover Pennsylvania Rule of Civil
Procedure 218 provides 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 nonsuit on motion of the
defendant or a non pros on the court’s own
motion.
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....
(c) A party who fails to appear for trial shall be
deemed to be not ready without satisfactory
excuse.
Pa.R.Civ.P. 218(a) and (c). Moreover, this court has stated, in determining
whether a failure to appear should be excused, a court should consider:
1) whether the failure to appear was inadvertent;
2) whether counsel’s failure to appear was part of a
pattern of improper behavior, misconduct or abuse;
3) whether the court attempted to contact counsel
prior to dismissing the appeal; 4) whether the
opposing party would be prejudiced by the delay; and
5) whether the court gave any consideration to lesser
sanctions.
Faison v. Turner, 858 A.2d 1244, 1246-1247 (Pa.Super. 2004) (citations
omitted).
Appellants argue the trial court did not properly apply the factors
outlined in Faison, supra. They further contend the factual scenario in
Faison, as well as this court’s decision in Banks v. Cooper, 171 A.3d 798(Pa.Super. 2017), supports a finding the trial court abused its discretion in
this matter. (Appellants’ brief at 30-45.) We disagree.
Initially we note, unlike in both Banks and Faison, this is not a case
where the trial court entered either a nonsuit or judgment of non pros;
rather, the trial court denied appellants’ request for a continuance and directed
them to proceed with the trial; when appellants did not present any evidence,
the trial court granted the defense motion for a directed verdict. (Notes of
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testimony, 9/23/19 at 26-30; see Banks, 171 A.3d at 800-801; Faison, 858
A.2d at 1245-1246.) Thus, the issue before us is not the proper application
of the factors outlined in Faison, but whether the trial court abused its
discretion in denying the request for a continuance. See Prysock, 972 A.2d
at 541.
Here, based upon the record, we cannot find the trial court abused its
discretion. While appellants attempt to characterize this as a single request
for a continuance due to illness (appellants’ brief at 28-45), the record shows
a pattern of mishandling this matter on their parts.
Appellants misread the March 26, 2019 revised case management
order;3 when they did become aware, in August 2019, the case was scheduled
for trial in September; they did not promptly move for a continuance; and
appellants’ counsel failed to appear at the deposition of appellees’ expert
witness. (Notes of testimony, 9/23/19 at 11-16; appellants’ post-trial motion,
10/3/19 at 7-9.) Despite being aware their case would go to trial in
September, both appellants scheduled non-emergency medical procedures for
the week of September 23, 2019. (Notes of testimony, 9/23/19 at 5-8,
17-19.)
Appellants did not supply counsel with an updated telephone number,
causing counsel to have problems reaching them during a critical period of
3 While the order is not a model of clarity, it does plainly state the parties
should be ready for trial by September 3, 2019. (Revised case management
order, 3/26/19 at unnumbered page 1.)
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time, and Mr. Woidislawsky misinformed counsel about his schedule.
(Appellants’ post-trial motion at 7-9.) Further, perhaps most significantly,
given the sole remaining issues in this matter were causation and the extent
of Mr. Woidislawsky’s injuries, even if Mr. Woidislawsky were present, counsel
was unprepared for trial, he had not obtained a video deposition of his expert,
did not furnish his expert’s report to defense counsel until September 22,
2019, and his expert was unavailable for the rest of the month of September.4
(Notes of testimony, 9/23/19 at 12-13, 19-20.) Under these circumstances,
the trial court’s decision was not, “manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will[.]” Prysock, 972 A.2d at 541. Appellants’
first issue lacks merit.5
4 This court is puzzled by counsel’s representation that his expert was unable
to testify because of the Jewish High Holidays. In fact, in 2019, the Jewish
High Holiday of Rosh Hashannah began at sundown on Sunday,
September 29, and ended at Sundown on Tuesday, October 1, 2019.
Yom Kippur began at sundown on Tuesday October 8, and ended at Sundown
on Wednesday, October 9, 2019. The festival of Sukkot started on
October 14, and ended on October 22, 2019. Jewish Federation of Columbus,
Four-Year Calendar of Major Jewish Holidays, https://jewishcolumbus.org/wp-
content/uploads/2018/08/JEWISH-HOLIDAY-CALENDAR-2018-2022.pdf.
Thus, contrary to counsel’s representation, his expert should have been
available during the week of September 23, 2019, but would not have been
available for large portions of the month of October.
5 In any event, both Banks and Faison are factually distinct. In Banks, the
plaintiff/appellants, were notified of a date certain for trial of July 6, 2016, by
email on April 29, 2016, and by hard copies mailed on May 3, 2016. Banks,
171 A.3d at 800. The court sent a second e-mail the day before trial; however,
neither counsel nor his clients appeared at trial, and the trial court dismissed
their case with prejudice. Id. Appellants filed a petition to open, claiming
they had not received the hard copies; counsel was unaware of the original
email because of a clerical error; and the second email did not afford them
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In their second and final issue, appellants contend the trial court erred
by entering and refusing to remove the directed verdict because directed
verdicts are only available in jury trials, not bench trials. (Appellants’ brief at
sufficient notice. Id. Appellees did not file a response to the petition, and the
trial court denied it without holding a hearing. On appeal, this court did not
find this explanation constituted a sufficient excuse to justify opening the
judgment; but rather, in the absence of opposition from the opposing party,
we held the trial court should not have denied the motion without a hearing
to afford appellants the opportunity to elaborate on the clerical error. Id. at
802-803.
In Faison, the parties were notified in November 2002 the case would
be tried in April 2003. Faison, 858 A.2d at 1245. Appellant and her counsel
received notice, on the Friday before trial, the case would be heard the
following Monday. Id. Counsel was unable to reach the expert witness in the
case, who did not maintain Friday office hours. Appellant, a mail carrier, was
out on her route, did not receive the notice sent to her office, and counsel was
unable to reach her. Id. at 1245-1246. On appeal, in a brief decision, we
held the trial court erred in dismissing the case pursuant to Pa.R.Civ.P. 218,
largely on the basis of the short notice provided to counsel of the trial date.
Id. at 1247.
Here, unlike in Banks, appellants had ample opportunity to be heard,
and appellees opposed both the initial delay and the post-trial motions.
Further, unlike in Faison, we are not faced with a case where counsel was
ready to go to trial but was unable to locate his client and expert witness at
the last minute. Rather, as discussed above, we have a cascading series of,
at best, mistakes and, at worst, misconduct, whereby counsel was utterly
unprepared to proceed to trial. Further, while as discussed above, we do not
believe the Faison factors are dispositive in this matter, we note the trial
judge did discuss the matter with the motions judge who had denied
appellants’ motion for extraordinary relief in an attempt to obtain
reconsideration of the ruling and did examine the possibility of holding the
trial later in the week, only to be told by appellants’ counsel that neither his
clients nor his expert witness were available until October at the earliest.
(Notes of testimony, 9/23/16 at 17-20, 26-28.) Moreover, while there was
no specific discussion of prejudice, the record reflects defense counsel was
willing to readjust his schedule to be available later in the week; however, he
had a full schedule in the upcoming weeks and would have difficulty
rescheduling. (Id. at 20-22.) Given this, we find Faison distinguishable.
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45-46.) While we agree with appellants the trial court should have either
granted a nonsuit or entered a judgment of non pros, based upon the facts
as outlined above, the error was harmless.
Pennsylvania Rule of Civil Procedure 226 provides:
Rule 226. Points for Charge. Motion for Directed
Verdict
(a) Points upon which the trial judge is
requested to charge the jury shall be so
framed that each may be completely
answered by a simple affirmation or
negation. Attorneys shall hand copies of
requested points for charge to the trial
judge and to the opposing attorneys
before the closing addresses to the jury
are begun. A requested point for charge
that was presented to the trial judge
becomes part of the record when the point
is read into the record, or filed in the office
of the prothonotary prior to filing a motion
for post-trial relief regarding the
requested point for charge.
....
(b) At the close of all the evidence, the trial
judge may direct a verdict upon the oral
or written motion of any party.
Pa.R.Civ.P. 226.
Thus, we agree with appellants the grant of a motion for a directed
verdict was not proper in a bench trial. However, appellants have failed to
show they were prejudiced by the result. As discussed above, the trial court
had already denied appellants’ request for a continuance and directed the case
to trial. Appellants presented no evidence, and the trial court entered a verdict
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in favor of appellees. In their post-trial motion, appellants both challenged
the entry of a directed verdict and treated the verdict as a judgment of
non pros and/or nonsuit and moved to open. (Motion for post-trial relief,
10/03/19 at pages 1-13.) Thus, the trial court had the opportunity to open
the judgment and declined to do so. Appellants have not shown the trial court
erred in denying their request for a continuance and have not shown the trial
court erred in entering a verdict against them, of whatever sort, because they
were manifestly unprepared for trial. Given this, we find any error in granting
a motion for a directed verdict rather than entering a nonsuit or a judgment
of non pros was harmless error. Appellants’ final claim does not merit relief.
Accordingly, for the reasons discussed above, we hold the trial court did
not abuse its discretion in failing to grant a continuance in this matter and any
error in entering a “directed verdict” against appellants was harmless.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/20
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