J. A21039/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ABRAHAM WOIDISLAWSKY AND 

RITA WOIDISLAWSKY, H/W,

:

:

IN THE SUPERIOR COURT OF

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 

RITA WOIDISLAWSKY, H/W,

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

JOSEPH R. VIOLA, ESQUIRE, 

ADMINISTRATOR OF THE ESTATE OF 

LOUIS MENAPACE, IV, DECEASED

:

:

:

:

------------------------------------------- :

:
J. A21039/20

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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 judgment1 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.
J. A21039/20

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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:
J. A21039/20

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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.
J. A21039/20

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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.)
J. A21039/20

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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/wpcontent/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