J. A 21 0 39 /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. A 21 0 39 /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 judgment 1 entered on
November 14, 2019, in favor of app ellees, 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 an d procedural history from our r eview of
the certified record and the trial court’s February 7, 2020 opinion. In June

1 In the caption of their brief , a ppellant s 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 acc ordingly corrected the caption.J. A 21 0 39 /20

- 3

-

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 acti on 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 ma tter 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 clie nts 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 t rial court opinion, 2 / 7/20 at 2 n.1.)J. A 21 0 39 /20

- 4

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unavailable to testify until October because of the Jewish High Holidays. ( Id.

at 17

- 20.)
Appell ees’ counsel opposed the motion. H e noted , despite court
involvement, appellants’ counsel failed to attend the depositi on of appellees’
expert witness and di d 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, appell ants’ 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. J udgment 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 followi ng issues for our review:J. A 21 0 39 /20

- 5

- 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 uncontrove rted 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, notwi thstanding 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 refu sing 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 t o 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.” Commonweal th 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 aJ. A 21 0 39 /20

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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, preju dice,
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 par ties 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 prev ent 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. A 21 0 39 /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 c ourt has stated, i n 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) wh ether the court gave any consideration to lesser sanctions.

Faison v. Turner , 858 A.2d 1244, 1246

- 12 47 (Pa. Su per. 2004) (citations
omitted).
Appellants argue the trial court did not properly apply the factors

outlined in Faison , supra . They further cont end the factual scenario in

Faison , as well as this c ourt’s decision in Banks v. Cooper , 171 A.3d 798
(Pa.Super. 2017), support s 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 a ppellants’ request for a continuance and directed
them to proceed with the trial; when a ppellants did not present any evidence,
the trial court granted the defense motion for a directed verdict. ( Notes ofJ. A 21 0 39 /20

- 8

-

testimony , 9/23/19 at 26

- 30; see Banks , 171 A.3d at 800

- 8 01; Faison , 858

A.2d at 1245

- 12 46. ) 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 part s

. Appellant s misread the March 26, 2019 revised case management
order; 3 when they did become aware , in August 2019, the case was s cheduled
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; a ppellants’ p ost

- 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 o f 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, 20 19. (Revised case management order, 3/26/19 at unnumbered page 1.)J. A 21 0 39 /20

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time , and Mr. Woidislawsky misinformed couns el 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
( Not es 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 mer it. 5

4 This c ourt 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/u ploads/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, b oth 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 h ad not received the hard copies ; counsel was unaware of the original
em ail because of a clerical error; and the second email did not afford themJ. A 21 0 39 /20

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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’ b rief at

sufficient notice. Id. Appellees did not file a response to the petition, and the trial court denied it without holding a hearing. On appea l, this c ourt 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 af ford appellants the opportunity to elaborate on the clerical error. Id. at 802

- 8 03.

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 , o n 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 n ot maintain Friday office hours. A ppellant, a mail carrier, was out on her route, did not receive the notic e sent to her office, and counsel was unable to reach her

. Id. at 1245

- 12 46. 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 an d would have difficulty rescheduling . ( Id. at 20

- 22 .) Given this, we find Faison distinguishable.J. A 21 0 39 /20

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45

- 46

. ) Whil e 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 w hen 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 d iscussed 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 verdictJ. A 21 0 39 /20

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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 an d 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 verdic t against them, of whatever sort, because they
were manifestly unprepared for tria l. 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’ fin al 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