IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kim Myers and Jarvis Payton, :

Appellants :

:

 v. : No. 275 C.D. 2022

: Argued: March 6, 2023

Nikolas Romito and Simone : 

Molotsky :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: April 18, 2023

Kim Myers (Myers) and Jarvis Payton (Payton) appeal from the Court of 

Common Pleas of Philadelphia County’s (trial court) order denying their petition for 

relief from a judgment of non pros,

1 which the trial court entered following Myers’ 

and Payton’s failure to appear at an arbitration hearing. On appeal, Myers and 

Payton argue the trial court abused its discretion in denying their petition, because 

(a) they were excused from participating in compulsory arbitration since the 

arbitration program did not have jurisdiction to hear their case, and (b) the trial 

1

 Non pros is an abbreviation for non prosequitur, which Black’s Law Dictionary indicates is 

Latin for “he does not prosecute,” and defines as a “judgment rendered against a plaintiff who has 

not pursued the case.” Black’s Law Dictionary 1269 (11th ed. 2019).
2

court’s judgment of non pros violated their constitutional and statutory rights to a 

jury trial.2 Upon review, we affirm.

I. Background

On October 27, 2019, Myers and Payton filed a civil complaint in the trial 

court against Nikolas Romito and Simone Molotsky (police officers). Reproduced 

Record (R.R.) at 6. In their complaint, Myers and Payton alleged the police officers, 

acting in their official capacities as patrol officers for the Philadelphia Police 

Department, stopped their vehicle on October 28, 2017 and then falsely imprisoned 

and assaulted them.

3

 Id. at 8-13. Myers and Payton did not allege they suffered any 

2

 We have reframed Myers’ and Payton’s issues on appeal for clarity and ease of analysis.

3

 The relevant factual allegations from Myers’ and Payton’s complaint are as follows:

9. Upon exiting the patrol vehicle, Defendant Molotsky asked Plaintiff Payton for 

his driver’s license and proof of insurance and registration for the [vehicle].

Defendant Romito stood outside of Plaintiff Myers’ passenger window, watching 

her. 

10. After Plaintiff Payton provided his driver’s license to Defendant Molotsky, 

Defendants gave Plaintiff Myers permission to open the [vehicle]’s glove box to 

obtain the registration and insurance cards.

11. Plaintiff Myers retrieved the insurance and registration credentials from the 

glovebox then immediately closed the glovebox. However, before she was able to 

give the credentials to Defendants, Defendant Romito started panicking. 

12. Defendant Romito unholstered his Glock pistol, pointed it in the direction of 

Plaintiff Myers’ head and started hysterically accusing her of having a gun inside 

of her vehicle’s glovebox. Before Plaintiff Myers could explain that she had [a] 

valid license to carry, Defendant Romito started loudly yelling, while still pointing 

his Glock pistol at her, “Gun, gun. She has a gun.” 

13. Defendant Romito then immediately snatched Plaintiff Myers out of the 

[vehicle] and informed her that she was going to jail, placed her in handcuffs, and 

put her in the back of a police vehicle. 

14. As Defendant Romito took Plaintiff Myers into custody at gunpoint, Defendant 

Molotsky did the same to Plaintiff Payton, even though he did not possess or have 

access to Plaintiff Myers’ gun. Plaintiff Payton was also advised that he was going 

to jail for illegal gun possession.

15. While both Plaintiffs were locked in the back of separate police vehicles, 

Defendants subsequently verified that Plaintiff Myers had a valid license to carry. 

(Footnote continued on next page...)
3

physical injuries during this incident. See id. at 8-10. Nevertheless, they sought

damages “in an amount in excess of Fifty Thousand Dollars ($50,000) plus interest 

and the cost of suit, and such other further relief as is just and proper.” Id. at 10-13.

On February 6, 2020, after the conclusion of an initial case management 

conference, trial court Judge Daniel Anders (Judge Anders) issued a Case 

Management Order, which set forth various procedural deadlines and a date by 

which he expected the case to be ready for trial. R.R. at 14-15. By order entered 

February 28, 2020, however, Judge Anders, “having determined that the amount in 

controversy [was] below the mandatory arbitrations limits,” referred the matter to 

arbitration pursuant to Pennsylvania Rule of Civil Procedure 1021(d), Pa.R.Civ.P. 

1021(d).

4

 Id. at 16. 

On March 2, 2020, Myers and Payton filed a motion requesting the case be 

removed from compulsory arbitration and placed back on the jury trial list. R.R. at 

3, 17-19. In their motion, Myers and Payton alleged that “[t]he sole basis” for Judge 

Anders’ decision to refer the case to arbitration was the police officers’ “preference 

for the more defense friendly arbitration forum,” and that the trial court considered

“no evidence, no law, no argument, [and] no briefing . . . .” Id. at 19. As a result, 

Myers and Payton alleged Judge Anders’ decision violated their constitutional and 

Defendants eventually released Plaintiff Myers from the back of the police vehicle 

but did not release Plaintiff Payton from the back of the patrol car until after, 

approximately, an additional thirty minutes.

16. Both Plaintiffs were subsequently released without being criminally charged, 

except that Defendants issued Plaintiff Myers a citation for permitting Plaintiff 

Payton to operate her vehicle while having a suspended driver’s license.

17. As a direct consequence of Defendants’ actions, Plaintiffs have suffered severe 

emotional distress, temporary loss of liberty, among other things.

R.R. at 8-10.

4

 “The court on its own motion or motion of any party may by discovery, pre-trial conference, 

hearing or otherwise, determine the amount actually in controversy and enter an order of reference 

to arbitration.” Pa.R.Civ.P. 1021(d). 
4

statutory rights to a jury trial. Id. The trial court assigned Myers’ and Payton’s 

motion to Judge Edward Wright. Id. at 3.

By order docketed June 8, 2020, Judge Wright deferred to Judge Anders’

previous decision and denied Myers’ and Payton’s request to remove the case from 

compulsory arbitration. R.R. at 25. Judge Anders ultimately scheduled an 

arbitration hearing for January 10, 2022, but Myers and Payton did not appear at the 

arbitration hearing.

5

 Pursuant to Pennsylvania Rule of Civil Procedure 1303(b)(2) 

and Philadelphia County Local Rule 1303(a), the board of arbitrators transferred the 

case “to the major non-jury program with the consent of all parties present to be 

heard before a judge of the [trial court] . . . .” Pa.R.Civ.P. 1303(b)(2); Phila.Civ.R. 

*1303(a); Trial Ct. Op., 5/25/22, at 2. The trial court then entered a judgment of non 

pros against Myers and Payton for their failure to appear at the scheduled arbitration 

hearing.

On January 16, 2022, Myers and Payton filed a petition for relief from the trial 

court’s judgment of non pros pursuant to Pennsylvania Rule of Civil Procedure 

3051, Pa.R.Civ.P. 3051. R.R. at 4, 29. In addition to the arguments Myers and 

Payton asserted in their motion to have the case removed from arbitration, Myers 

and Payton alleged Judge Anders “intentionally misplaced” the case “into 

compulsory arbitration as a result of personal bias and animosity towards black 

litigants.” Id. at 31. On March 8, 2022, trial court Judge Abbe Fletman denied 

Myers’ and Payton’s petition for relief from judgment of non pros. Myers and 

Payton timely appealed to this Court. 

5

 Myers and Payton filed a motion for a jury trial on January 10, 2022, refusing to attend 

arbitration and “claiming Judge Anders committed ‘obvious legal error’ in determining the amount 

in controversy in [Myers’ and Payton’s] case was within arbitration limits and assert[ing], 

‘[b]ecause of their political beliefs, [Myers and Payton] would commit suicide before trying this 

case before a judge or arbitration.’” See R.R. at 4; Trial Ct. Op., 5/25/22, at 2. 
5

II. Analysis

In reviewing a trial court’s decision to deny a petition to open or strike a 

judgment of non pros, this Court’s review is limited to determining whether the trial 

court abused its discretion. Womer v. Hilliker, 908 A.2d 269, 279 (Pa. 2006) 

(citation omitted). “An abuse of discretion is not merely an error of judgment. . . . 

Rather, discretion is abused only ‘if in reaching a conclusion, 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 of record.’” 

Neshaminy Constructors, Inc. v. Plymouth Twp., 572 A.2d 814, 817 n.1 (Pa. 

Cmwlth. 1990) (citation omitted). Thus, we will only overturn a trial court’s 

decision to deny a petition to open or strike a judgment of non pros if it “reflects 

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support as to be clearly erroneous.” Womer, 908 A.2d at 279.

When a board of arbitrators “is convened for hearing, if one or more parties 

is not ready the case shall proceed and the arbitrators shall make an award unless the 

court (1) orders a continuance, or (2) hears the matter if the notice of hearing contains 

the statement required by subdivision (a)(2) and all parties present consent.” 

Pa.R.Civ.P. 1303(b). Philadelphia County Local Rules also provide that “if one or 

more parties is not present at the [arbitration] hearing, the matter may be heard at the 

same time and date before a judge of the court without the absent party or parties.” 

Phila.Civ.R. *1303. When that occurs, the trial court may “take action not available 

to the arbitrators, including the entry of a nonsuit if the plaintiff is not ready or a non 

pros if neither party is ready.” Pa.R.Civ.P. 1303(b) cmt.

Once a trial court enters a judgment of non pros, a plaintiff may petition the 

trial court for relief from the judgment of non pros pursuant to Pennsylvania Rule of 
6

Civil Procedure 3051. “A request to open a judgment of non pros, like the opening 

of a default judgment, is in the nature of an appeal to the equitable powers of the 

court.” Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011) 

(citation omitted). Rule 3051 establishes the requirements for obtaining relief from 

a judgment of non pros as follows:

(a) Relief from a judgment of non pros shall be sought by petition. All 

grounds for relief, whether to strike off the judgment or to open it, must 

be asserted in a single petition.

(b) Except as provided in subdivision (c), if the relief sought includes 

the opening of the judgment, the petition shall allege facts showing that

(1) the petition is timely filed,

(2) there is a reasonable explanation or legitimate excuse for the 

conduct that gave rise to the entry of judgment of non pros, and

(3) there is a meritorious cause of action.

Pa.R.Civ.P. 3051. “Any appeal related to a judgment of non pros lies not from the 

judgment itself, but from the denial of a petition to open or strike.” Madrid, 24 A.3d 

at 382. 

The trial court denied Myers’ and Payton’s petition for relief from a judgment 

of non pros because it determined they did not provide a reasonable explanation or 

legitimate excuse for failing to appear at their arbitration hearing. Trial Ct. Op., 

5/25/22, at 7-8. The trial court noted in its written opinion that Myers’ and Payton’s 

lawyer sent an email to the police officers’ lawyer wherein he

referred to arbitration as a ‘cat scratch pile’ and stated that he ‘would 

kill [himself] before [he] did arbitration.’ (Answer to Petition, Exhibit 

A, Dkt. At 2/4/22 ¶¶ 2, 14). In that correspondence, [Myers’ and 

Payton’s lawyer] also wrote, ‘We will get our trial date after we 

intentionally fail to show up for that stupid ass arbitration ‘scheme’ next 
7

month. That is why I am not filing any more motions about it. Only 

an idiot would put these cases in arbitration.’ (Id. at ¶ 16). [Myers’ and 

Payton’s lawyer] further asserted, ‘Plaintiffs do not have to show up to 

arbitration because the arbitration court has no jurisdiction over their 

cases that seek more than $50K. So, no matter what, we would not show 

up to arbitration.’ (Id. at ¶ 5). [Myers’ and Payton’s lawyer] maintained 

that ‘[p]laintiff Myers would never attend an arbitration proceeding on 

a police brutality case and would just no-show and appeal for a jury. 

The whole arbitration ‘scheme’ has no traction on this road.’ (Id. at ¶ 

10). 

Trial Ct. Op., 5/25/22, at 4. Myers’ and Payton’s lawyer did not deny making any 

of these comments in this appeal, rather he defended making them, as follows:

Second, it is true that the undersigned said, in an email to [the police 

officers’] counsel, “We will get our trial date after we intentionally fail 

to show up for that stupid ass arbitration ‘scheme’ next month.” 

Counsel is well within his rights to express righteous indignation[6]in 

the face of manifest injustice, and he should not be punished for his 

protected speech. U.S. Const. amend. I. [The police officers’] argument 

should be rejected to the extent that it implies that [Myers’ and 

Payton’s] rights should be denied because they have a negative view of 

the arbitration program’s appropriateness for this case. Rosenberger v. 

Rector, 515 U.S. 819, 829-830 (1995)(observing that viewpoint 

discrimination violates the First Amendment).

Appellants’ Reply Br. at 7.

6

 As our Superior Court aptly set forth in Hall v. Reeb, 555 A.2d 926, 928 (Pa. Super. 1989), 

“[w]e do not, under any circumstances countenance the temerity of any member of the bar who 

instructs or encourages a party to intentionally fail to appear at a scheduled arbitration 

hearing . . . .” Rather, we exhort all members of the bar to thoroughly research their positions, as

knowledge and understanding can remove the blinders that far too often accompany righteous 

indignation.
8

A. Myers’ and Payton’s Arguments on Appeal

In this appeal, Myers and Payton argue the trial court abused its discretion in 

failing to grant their petition for relief from its judgment of non pros because they 

had a legitimate excuse for not attending arbitration. Myers and Payton argue that

pursuant to the plain language of 42 Pa.C.S. § 7361(b)(2)(i), compulsory arbitration 

programs do not have jurisdiction to hear cases where the litigants request more than 

$50,000 in damages. See Appellants’ Br. at 10. To support this position, Myers and 

Payton cite Robert Half International Inc. v. Marlton Technologies, Inc., 902 A.2d 

519, 529 (Pa. Super. 2006), for the proposition that “the monetary limits of 

compulsory arbitration are jurisdictional.” Accordingly, Myers and Payton believe 

that their request for over $50,000 of damages “automatically divested” the 

arbitration program of jurisdiction, excusing them from participation. Appellants’ 

Br. at 11-12.

Even if the arbitration program was not automatically divested of jurisdiction, 

Myers and Payton argue they were excused from attending arbitration because Judge 

Anders erred in placing this case in arbitration. Although Myers and Payton concede 

that a trial court “can determine an amount in controversy” pursuant to Pennsylvania 

Rule of Civil Procedure 1021(d) (Rule 1021(d)), they argue Rule 1021(d) requires a 

trial court to “first hav[e] a basis for its determination by obtaining actual evidence 

through ‘discovery, pretrial conference, hearing or otherwise.’” See Appellants’ Br. 

at 13 (quoting Pa.R.Civ.P. 1021(d)). Since the trial court issued its decision before

receiving any evidence, Myers and Payton argue it failed to follow the procedure set 

forth in Rule 1021(d) for referring the case to compulsory arbitration. 

Myers and Payton also argue the trial court abused its discretion in failing to 

grant their petition for relief from its judgment of non pros because Pennsylvania’s 
9

Constitution and statutes guarantee them a right to a trial by jury. See Appellants’ 

Br. at 15-16. Since they demanded a jury trial in writing, Myers and Payton argue 

the trial court violated their right to a jury trial by conditioning their right on

participation in compulsory arbitration and by dismissing their case with prejudice 

after they did not participate. Id. at 16.

B. Compulsory Arbitration – Amount in Controversy 

Pennsylvania’s compulsory arbitration program is governed by Section 7361 

of the Judiciary Code, as follows:

(a) General rule.--Except as provided in subsection (b), when 

prescribed by general rule or rule of court such civil matters or issues 

therein as shall be specified by rule shall first be submitted to and heard 

by a board of three members of the bar of the court.

(b) Limitations.--No matter shall be referred under subsection (a):

(1) which involves title to real property; or

(2) where the amount in controversy, exclusive of interest and 

costs, exceeds $50,000.

(c) Procedure.--The arbitrators appointed pursuant to this section shall 

have such powers and shall proceed in such manner as shall be 

prescribed by general rules.

(d) Appeal for trial de novo.--Any party to a matter shall have the 

right to appeal for trial de novo in the court. The party who takes the 

appeal shall pay such amount or proportion of fees and costs and shall 

comply with such other procedures as shall be prescribed by general 

rules. In the absence of appeal the judgment entered on the award of the 

arbitrators shall be enforced as any other judgment of the court. For the 

purposes of this section and section 5571 (relating to appeals generally) 

an award of arbitrators constitutes an order of a tribunal.

42 Pa.C.S. § 7361 (bold in original, italics added).
10

Pennsylvania Rule of Civil Procedure 1021 establishes a trial court’s 

procedure for making a “Determination of Amount in Controversy” as follows:

(c) In counties having rules governing compulsory arbitration the 

plaintiff shall state whether the amount claimed does or does not exceed 

the jurisdictional amount requiring arbitration referral by local rule.

(d) The court on its own motion or motion of any party may by 

discovery, pre-trial conference, hearing or otherwise, determine the 

amount actually in controversy and enter an order of reference to 

arbitration.

Pa.R.Civ.P. 1021(c), (d) (emphasis added). 

A litigant’s request for damages that exceed Pennsylvania’s compulsory

arbitration limit does not forever divest the compulsory arbitration program of 

jurisdiction over the case. Although Myers and Payton are correct in noting that 42 

Pa.C.S. § 7361(b)(2) states “[n]o matter shall be referred [to compulsory arbitration] 

where the amount in controversy . . . exceeds $50,000,” Myers and Payton are not 

correct in their belief that the “amount in controversy” is fixed by the subjective

amount of damages a litigant requests. Instead, Rule 1021(d) recognizes a trial 

court’s unique position and authority to determine the “amount actually in 

controversy” before trial. See Pa.R.Civ.P. 1021(d).

If trial courts did not have the authority to determine the amount actually in 

controversy and refer appropriate cases to arbitration, every litigant who wished to 

avoid arbitration would simply request an amount of damages that exceeds the 

arbitration limit. This would quickly turn Pennsylvania’s compulsory arbitration 

program into a voluntary arbitration program. In Robert Half, the Superior Court 

recognized this, as follows:

The Court of Common Pleas is better equipped through its extensive 

pre-trial processes to determine whether the case truly belongs in the 
11

trial program or in arbitration. The court’s mandatory pretrial 

conferences and case management deadlines put the court in a better 

position to decide if the counterclaim is viable or just a ruse to defeat 

arbitration jurisdiction. . . . Of course, the trial court can also remand 

the case to arbitration if the court resolves through its pre-trial processes 

that the entire case really belongs in arbitration. 

Robert Half, 902 A.2d at 529 (citing Pa.R.Civ.P. 1021(d)) (emphasis added). Thus, 

Rule 1021(d) enables trial court judges to prevent litigants from manipulating

Pennsylvania’s compulsory arbitration system. This is a critical function for a trial 

court because “abuses of the arbitration system impede the judiciary’s ability to 

expeditiously dispose of pending litigation which is the overall objection of 

compulsory arbitration.” Hall v. Reeb, 555 A.2d 926, 928 (Pa. Super. 1989).

In practice, when a litigant requests less than $50,000 in damages and their 

case is otherwise eligible for arbitration, a trial court will immediately refer the case

to arbitration. When a litigant requests more than $50,000 in damages, a trial court 

will not immediately refer the case to compulsory arbitration. Instead, a trial court 

will place the case on a trial track, where it remains until and unless a judge of the 

trial court determines the amount actually in controversy is less than $50,000 

pursuant to Rule 1021(d). If a trial court judge makes that determination, she then 

refers the case to compulsory arbitration. This practice is widely accepted, and it 

does not violate 42 Pa.C.S. § 7361(b)(2), because the “amount in controversy” is not 

forever fixed by the amount of damages a litigant requests. 

In determining the amount actually in controversy pursuant to Rule 1021(d), 

a trial court is not required to consider “evidence,” as Myers and Payton argue. To 

the contrary, Rule 1021(d) does not use the word “evidence.” Instead, Rule 1021(d) 

permits a trial court to determine the amount actually in controversy “by discovery, 

pre-trial conference, hearing or otherwise.” Rule 1021(d)’s use of the disjunctive 
12

word “or,” means that any method listed is sufficient by itself. Thus, a trial court 

can review only discovery materials and determine the amount actually in

controversy is below the arbitration limit. A trial court could also only conduct a 

pre-trial conference or only conduct a hearing and determine the amount actually in 

controversy is below the arbitration limit. Each option provides the trial court with

an opportunity to gather information and make an informed decision before trial.

These methods are not exclusive, however, because Rule 1021(d) also permits 

a trial court judge to “otherwise” determine the amount actually in controversy. 

Thus, if a trial court judge can obtain sufficient information to make an informed 

decision in other ways, Rule 1021(d) permits the trial court judge to do so. In some 

cases, a trial court judge may even be able to review the pleadings alone and 

determine the amount actually in controversy is below the arbitration limit. 

Myers and Payton alleged in their complaint that the police officers 

wrongfully arrested and detained them for approximately one hour or less. They did 

not allege in their complaint that they sustained any bodily injuries in the process. 

Based on these allegations alone, the trial court determined the amount actually in 

controversy was less than $50,000. Under the facts of this case, we cannot say that 

the trial court’s determination “reflects manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.” See 

Womer, 908 A.2d at 279.

Since the trial court’s arbitration program was not automatically and forever 

divested of jurisdiction to hear Myers’ and Payton’s case because they requested 

greater than $50,000 in damages and the trial court did not fail to follow the 

procedures outlined in Rule 1021(d) in referring the case to arbitration, the trial court 

did not abuse its discretion when it determined the arbitration program’s alleged lack 
13

of jurisdiction was not a legitimate excuse for Myers’ and Payton’s failure to appear 

at arbitration.

C. Right to Trial by Jury

Myers and Payton argue the trial court’s judgment of non pros violated their 

constitutional7 and statutory8rights to a jury trial. Appellants’ Br. at 15-16. The 

Pennsylvania Supreme Court has already determined Pennsylvania’s compulsory 

arbitration system does not violate a plaintiff’s constitutional right to a jury trial, as 

follows:

It is true, of course, that . . . the [Pennsylvania] Constitution would be 

violated by a statute the effect of which was to compel parties to submit 

to arbitration against their will or without their assent. Indeed 

compulsory arbitration conflicts also with the 14th Amendment of the 

Federal Constitution in that it works a deprivation of property and 

liberty of contract without due process of law. But this is so only where 

the statute closes the courts to litigants and makes the decision of the 

arbitrators the final determination of the rights of the parties; therefore 

there is no denial of the right of trial by jury if the statute preserves 

that right to each of the parties by the allowance of an appeal from 

the decision of the arbitrators or other tribunal. In [Capital 

Traction Co. v. Hof, 174 U.S. 1, 23 (1899)] it was said, . . . : ‘It [the 

Constitution] does not prescribe at what stage of an action a trial by jury 

must, if demanded, be had, or what conditions may be imposed upon 

the demand of such a trial, consistently with preserving the right to it.’ 

The only purpose of the constitutional provision is to secure the right 

of trial by jury before rights of person or property are finally 

determined. All that is required is that the right of appeal for the purpose 

of presenting the issue to a jury must not be burdened by the imposition 

of onerous conditions, restrictions or regulations which would make the 

right practically unavailable. 

7

 “Trial by jury shall be as heretofore, and the right thereof remain inviolate.” PA. CONST. art.

I, § 6.

8

“Except where the right to trial by jury is enlarged by statute, trial by jury shall be as heretofore, 

and the right thereof shall remain inviolate.” 42 Pa.C.S. § 5104(a). 
14

Application of Smith, 112 A.2d 625, 629–30 (Pa. 1955) (emphasis added). 

Pennsylvania’s compulsory arbitration program preserves the right of every litigant 

to appeal the determination of a board of arbitrators and receive a trial. See 42 

Pa.C.S. § 7361(d). Accordingly, Myers’ and Payton’s general argument9that

conditioning their right to a jury trial on their participation in arbitration violated

their constitutional or statutory right to a jury trial is without merit. 

Similarly, Myers’ and Payton’s argument that “the trial court deprived [them]

of their right to a jury trial . . . by dismissing their case with prejudice without ever 

affording them an opportunity to have a jury assess the merits of their case” is 

without merit. See Appellants’ Br. at 16. Myers and Payton had an opportunity to 

have a jury assess the merits of their case; that opportunity simply required them to 

first participate in arbitration. See 42 Pa.C.S. § 7361(d). 

No plaintiff is entitled to file his complaint and immediately receive a jury 

trial. Instead, there are a number of procedural obstacles a litigant must navigate

along the winding path to trial. Typically, a litigant must engage with and cooperate 

in discovery, file and brief or defend dispositive motions, attend status conferences, 

attend hearings, etc. Although each of these procedures are, in a sense, a condition 

on a litigant’s right to a jury trial, they are not so onerous as to make the right to a 

9 Myers and Payton also raised specific arguments for why Pennsylvania law cannot condition 

litigants’ rights to a jury trial upon their participation in compulsory arbitration, including: (1) “it 

is impossible . . . to participate in ‘good faith’ in arbitration because [Myers and Payton] seek 

substantially more damages than the arbitration panel is legally authorized to award,” (2) 

“arbitration . . . requires their attorney to engage in frivolous litigation – in violation of Pa. R. Prof. 

C. 3.1 – by requesting the arbitration panel to violate the law by awarding [them] more than 

$50,000,” and (3) arbitration “requires [them] to waste limited judicial resources by frivolously 

litigating their case at an arbitration proceeding that was pre-ordained to be appealed no matter the 

outcome.” Appellants’ Br. at 17-18. These specific arguments all lack merit because they rely 

upon the assumption that the compulsory arbitration program lacked jurisdiction to hear their case 

because they requested greater than $50,000 in damages. 
15

jury trial impracticable. See Application of Smith, 112 A.2d at 30. Accordingly, the 

procedures themselves do not violate a litigant’s right to a jury trial. Id. 

If litigants deliberately fail to participate in a trial court’s pretrial procedures, 

they do not pass go and wind up at trial. Instead, the trial court will dismiss their 

case. Thus, to get to a trial, litigants must actively participate in the court’s pretrial 

proceedings. A trial court’s dismissal of a case due to the litigant’s own failure to 

pursue his case also does not violate the litigant’s right to a jury trial. 

We see no reason to treat Myers’ and Payton’s deliberate refusal to participate 

in compulsory arbitration any differently than if they had refused to engage in other 

pretrial proceedings. In this case, Myers’ and Payton’s argument that the trial court 

erred in dismissing their case due to their failure to appear at arbitration is even less 

compelling, as they do not deny that they received a notice stating:

This matter will be heard by a board of arbitrators at the time, date and 

place specified but, if one or more of the parties is not present at the 

hearing, the matter may be heard at the same time and date before a 

judge of the court without the absent party or parties. There is no right 

to a trial de novo on appeal from a decision entered by a judge. 

Pa.R.Civ.P. 1303(a)(2). In addition, a note to Pennsylvania Rule of Civil Procedure 

1303(b)(2) states that “[i]n hearing the matter, the trial court may take action not 

available to the arbitrators, including the entry of a nonsuit if the plaintiff is not 

ready or a non pros if neither party is ready.” Pa.R.Civ.P. 1303(b)(2).

Thus, Myers and Payton knew the trial court scheduled an arbitration hearing 

in their case. Myers and Payton also knew that if they failed to appear at the 

arbitration hearing, their case could be heard by a judge in their absence. Myers’ 

and Payton’s attorney should have also known that if they failed to attend their 

arbitration hearing, the trial court could enter a judgment of non pros in their case. 
16

Nevertheless, Myers’ and Payton’s attorney referred to arbitration as a “stupid ass 

scheme” and refused to attend. As advertised, the trial court entered a judgment of 

non pros. Under these facts, it was Myers’ and Payton’s own actions, not the trial 

court’s, that denied them an opportunity for a jury trial. 

III. Conclusion

For the reasons outlined above, the trial court did not abuse its discretion in 

denying Myers’ and Payton’s petition for relief from a judgment of non pros. 

Therefore, we affirm the trial court’s order. 

______________________________

STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kim Myers and Jarvis Payton, :

Appellants :

:

 v. : No. 275 C.D. 2022

: 

Nikolas Romito and Simone : 

Molotsky :

O R D E R 

 AND NOW, this 18th day of April 2023, the order of the Court of Common 

Pleas of Philadelphia County, entered in this matter on March 8, 2022, is 

AFFIRMED.

______________________________

STACY WALLACE, Judge