J-A29039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JAMES MANGAN, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SAFE AUTO INSURANCE COMPANY, :

: Appellant : No. 1991 WDA 2014 Appeal from the Judgment November 26, 2014 in the Court of Common Pleas of Allegheny County,

Civil Division, No. AR 14-002796 BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 23, 2015 Safe Auto Insurance Company (“Safe Auto”) appeals from the Judgment entered against it, and in favor of James Mangan (“Mangan”), for $35,000. We affirm, but modify the verdict to $25, 000. On May 29, 2014, Mangan’s vehicle was involved in a traffic accident, and incurred significant damage. At the time of th e accident, Mangan had an existing auto insurance policy with Safe Auto, w hich included collision coverage. After informing Safe Auto of the acciden t, Mangan took the vehicle to the dealership from which he purchased i t for repairs, which totaled $10,100.26. Safe Auto, however, refused to pay for the repairs. Because of this, Mangan’s repaired vehicle remained in the body shop for over two months, until Mangan’s mother used her per sonal funds to pay for the repairs.J-A29039-15

- 2 -

In July 2014, Mangan filed a Complaint against Saf e Auto, in the Arbitration Division of the Allegheny County Court of Common Pleas, alleging breach of contract, and bad faith refusal to pay Ma ngan’s claim. In August 2014, Safe Auto filed an Answer and New Matter, ass erting that it was not required to cover the damage to the vehicle under t he terms of Mangan’s policy with Safe Auto. Safe Auto was represented b y Jeffrey C. Catanzarite, Esquire (hereinafter “defense counsel”). On the day the Complaint was filed, an arbitration hearing was scheduled for September 29, 2014. Because neither defense counsel nor a representative for Safe Auto appeared at the schedu led hearing time, the trial court held an ex parte trial, on the same day, pursuant to its authorityJ-A29039-15

- 3 -

under Pa.R.C.P. 1303, 1 and Allegheny County Local Rule 1303(a)(2)(1). 2 After hearing argument from Mangan’s counsel, and t estimony from

1 Rule 1303 provides as follows: (a)(1) The procedure for fixing the date, time and place of hearing before a board of arbitrators shall be prescribed b y local rule, provided that not less than thirty days’ notice in writing shall be given to the parties or their attorneys of record. (2) The local rule may provide that the written not ice required by subdivision (a)(1) include the following statement: “This matter will be heard by a board of arbitrator s 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 t he absent party or parties. There is no right to a trial de novo on appeal from a decision entered by a judge.” (b) When the board is convened for hearing, if one or more parties is not ready the case shall proceed and the arbitrator s shall make an award unless the court (1) orders a continuance, or (2) hears the matter if the notice of hearing conta ins the statement required by subdivision (a)(2) and all pa rties present consent. Note: It is within the discretion of the court whet her it should hear the matter or whether the matter should proceed in arbitration. ... Pa.R.C.P. 1303 (some notes omitted). In the instan t case, Mangan’s Complaint contained the written notice required by subsection (a)(2).

2 See PA Allegheny Cty. LR 1303(A)(2)(1) (providing that “[i]f a party fails to appear for a scheduled arbitration hearing, the matter may, if all present parties agree, be transferred immediately to a Judg e of the Court of Common Pleas for an ex parte hearing on the merits and entry of a non-jury verdict, from which there shall be no right to a tr ial de novo on appeal.”).J-A29039-15

- 4 -

Mangan, the trial court entered a verdict against S afe Auto for $35,000, which included over $24,000 in bad faith damages. A few days after the entry of the verdict, Safe Au to filed a Motion for post-trial relief. Safe Auto asserted that the tri al court should vacate the verdict, and schedule the case for a new arbitratio n hearing, because there was no evidence presented that defense counsel’s fa ilure to appear was intentional, and defense counsel was not adequately notified concerning the time of the arbitration hearing. Safe Auto additio nally claimed that the trial court erred by failing to (1) consider any lesser s anctions than imposing an ex parte verdict; and (2) limit the non-jury award to $25,0 00, in violation of Allegheny County Local Rule 1303(a)(2). 3 By an Order dated November 25, 2014, the trial cour t denied Safe Auto’s post-trial Motion, without a hearing, and di rected the prothonotary to enter a judgment in favor of Mangan for $35,000. T he prothonotary entered Judgment the next day. Safe Auto then filed a time ly Notice of Appeal. The trial court ordered Safe Auto to file a Pa.R.A.P. 1 925(b) concise statement of errors complained of on appeal, and it timely compl ied. The trial court issued a Pa.R.A.P. 1925(a) Opinion. On appeal, Safe Auto presents the following questio ns for our review:
1. Whether the trial court erred in entering a non-jur y verdict against [Safe Auto], where [defense] counse l

3 See PA Allegheny Cty. LR 1303(A)(2)(2) (providing that “[a] non-jury verdict entered at a hearing held pursuant to Local Rule 1303(a)(2)(1) shall not exceed $25,000 (exclusive of interest and costs ) to any party.”).J-A29039-15

- 5 - failed to appear at an arbitration hearing, without considering[:] whether [defense] counsel’s failure to appear was part of a pattern of improper behavior, misconduct or abuse[;] whether the failure to appea r was inadvertent[;] whether any prejudice was caused by the delay[;] and whether the [trial] court gave any consideration to lesser sanctions, even though defe nse counsel had entered an appearance, filed an Answer, and otherwise manifested his intent to defend the case[ ?] 2. Whether the [trial] court [] erred in failing to va cate the verdict and remand[] the case for a new hearing on the basis of fundamental fairness and to promote the in terest of justice[?] 3. Whether the [trial] court [] erred in failing to va cate the verdict and remand the case for a new hearing[,] as the court had no basis for an award of damages under 42 Pa.C.S. § 8371[?] Brief for Appellant at 4 (issues renumbered for eas e of disposition) (some capitalization omitted). 4 This Court’s standard and scope of review in an app eal from a non-jury verdict is as follows: Our appellate role in cases arising from non-jury t rial verdicts is to determine whether the findings of the trial cour t are supported by competent evidence and whether the tri al court committed error in any application of the law. The findings of fact of the trial judge must be given the same weig ht and effect

4 Initially, we observe that at the end of its Argum ent section, Safe Auto appears to raise a fourth “issue,” asserting that o ne of the cases that Mangan relies upon in his appellate brief is inappl icable. See Brief for Appellant at 15. However, Safe Auto did not set fo rth this claim in either its Rule 1925(b) Concise Statement or in the Statement of Questions Presented section of its brief. Accordingly, it is waived. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that “[a]ny issues not raised in a 1925(b) statement will be deemed waived.”); see also Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unl ess it is stated in the statement of questions involved or is fairly sugges ted thereby.”).J-A29039-15

- 6 -

on appeal as the verdict of a jury. We consider th e evidence in a light most favorable to the verdict winner. We wil l reverse the trial court only if its findings of fact are not su pported by competent evidence in the record or if its findings are premised on an error of law. J.J. DeLuca Co. v. Toll Naval Assocs. , 56 A.3d 402, 410 (Pa. Super. 2012) (citation omitted). Additionally, “[w]e will respect a trial court’s findings with regard to the credibility and weight of the evidence unless the appellant can show that the court’s determination w as manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence.” Id. (citation omitted). We will address Safe Auto’s first two issues toget her, as they are related. In its first issue, Safe Auto argues that the trial court erred by “fail[ing] to consider the factors enumerated by th e appellate courts to be used to determine whether an action should be dismi ssed for failure to appear[.]” Brief for Appellant at 8. Safe Auto re lies primarily upon the decision of our Commonwealth Court in Williams v. Sch. Dist. of Philadelphia , 870 A.2d 414 (Pa. Cmwlth. 2005) 5 (where neither the defendant nor its counsel attended a scheduled arbi tration hearing, and the trial court conducted an ex parte trial and entered a verdict against the defendant, holding that the trial court erred and s hould have considered the following factors: “(1) whether counsel’s failure t o appear was part of a

5 Although decisions by the Commonwealth Court are n ot binding on this Court, they may be persuasive. See, e.g., Citizens’ Ambulance Serv. Inc. v. Gateway Health Plan , 806 A.2d 443, 447 n.3 (Pa. Super. 2002).J-A29039-15

- 7 -

pattern of improper behavior, misconduct or abuse; (2) whether the failure to appear was inadvertent; (3) whether the court at tempted to contact counsel; (4) whether the opposing party would be pr ejudiced by the delay; and (5) whether the court gave any consideration to lesser sanctions.”). In the instant case, Safe Auto asserts that the trial court improperly failed to consider the Williams factors. Brief for Appellant at 9-11. According to Safe Auto, all of these factors weigh in favor of a determination that the trial court’s ex parte verdict was improper, for the following reasons: There is no evidence in the case at bar that defens e counsel’s failure to appear was intentional. ... There is abs olutely no evidence that [] defense counsel’s failure to appea r was part of a pattern of improper behavior, misconduct or abuse. Defense counsel is an upstanding member of the [Pennsylvani a] Bar[,] and has never missed an arbitration hearing date in his eighteen [] years of practice[.] ... The evidence in this ca se certainly shows that the failure of defense counsel to appear for the arbitration hearing was “inadvertent.” ...[D]efense counsel simply failed to enter the arbitration date on his calendar, due in part to the failure of the pleadings to conform to the Pennsylvania Rules of Civil Procedure and provide p roper notice of the arbitration hearing. There was no attempt o n the part of [Mangan’s counsel] or the [trial] court to contact [defense] counsel. ... [Mangan] would not have been prejudice d by the delay in either allowing defense counsel to attend the [arbitration] hearing after a simple telephone call [,] or even a continuance of the arbitration hearing to another d ate. ... Lastly, there is no evidence that th[e trial] court gave any consideration to any lesser sanctions .... Brief for Appellant at 9-10 (paragraph breaks and s ome capitalization omitted). In its second issue, Safe Auto argues that “[t]he v erdict should be vacated on the basis of fundamental fairness and to promote the interest ofJ-A29039-15

- 8 -

justice[,] as the failure of [defense counsel] to a ppear for the [arbitration h]earing was due to a misunderstanding and/or lack of proper notice[,] and was in no way designed to cause [Mangan] ... or [the trial c]ourt any inconvenience.” Id. at 13; see also id. at 14 (citing Budget Laundry Co.
v. Munter , 298 A.2d 55, 58 (Pa. 1972) (stating that “[i]ndiv idual cases are, of course, of great importance to the litigants inv olved, and courts must not overreach in their zeal to move cases to such an ex tent as to allow for no deviations from strict and literal adherence to pol icies justifiably laid down to improve the condition of the courts.”)). In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed Safe Auto’s claims, and determined that the court p roperly denied Safe Auto’s request that the verdict be vacated, as defe nse counsel did not offer a satisfactory excuse for his failure to appear. See Trial Court Opinion, 2/24/15, at 4-8; see also id. at 1 (stating that “[defense] counsel[’s] ... excuses for his failure to put the arbitration hear ing date in his calendar[,] and his failure to appear ..., accepted as true, were not the sort that would have misled any attorney, especially an experienced attorney such as [d]efen[se] counsel.”); see also id. at 9-10 (conclusion section). Our review discloses that the trial court’s cogent anal ysis is supported by the law and the record, and we discern no abuse of discreti on by the court.J-A29039-15

- 9 -

Accordingly, we affirm based the trial court’s Opin ion with regard to Safe Auto’s first two issues. See id. at 1, 4-8, 9-10. 6 In its third issue, Safe Auto urges us to vacate t he non-jury verdict and remand for a new trial, arguing that the trial court had no basis for awarding bad faith damages. See Brief for Appellant at 12-13. According to Safe Auto, there was no “clear and convincing” evid ence of its bad faith. Id. at 12 (citing Terletsky v. Prudential Prop. & Cas. Ins. Co. , 649 A.2d 680, 688 (Pa. Super. 1994) (stating that “[f]or pur poses of an action against an insurer for failure to pay a claim, [bad faith] imports a dishonest purpose and means a breach of a known duty ( i.e. , good faith and fair dealing), through some motive of self-interest or ill will,” and that “bad faith must be proven by clear and convincing evidence” (citation omitted)); see also Brief for Appellant at 12-13 (stating that Safe Auto, “in its Answer and New Matter to [Mangan’s] Complaint, set forth specific defense s to [Mangan’s] claims and provided the specific reasons why the claim of [Mangan] was denied.”). Moreover, Safe Auto argues that “the [trial c]ourt did not take any testimony at the time of the one[-]minute non-jury trial to s upport any award of punitive damages pursuant to 42 Pa.C.S.A. § 8371” ( the statute governing

6 As an addendum, we observe that Safe Auto’s relian ce upon Williams is misplaced, as that case is readily distinguishable. See Williams , 870 A.2d at 415, 417 (holding that defense counsel did offer a satisfactory excuse for missing the arbitration hearing where she (1) was h ospitalized several times due to complications with her pregnancy; and (2) di d not receive notice of the time of the scheduled hearing).J-A29039-15

- 10 - damages that a trial court may award where it finds that an insurer has acted in bad faith toward the insured). Brief for Appellant at 13. In its Opinion, the trial court addressed Safe Aut o’s claim as follows: As for the contention that the evidence doesn’t sup port the verdict, especially as to bad faith damages, ... the non-jury trial held ... pursuant to Pa.R.C.P. 1303 is of record in a n 8-page [t]ranscript. [Safe Auto] contends that the trial was only one[-] minute long, apparently because the time noted in t he transcript at the start of the trial is the same noted eight p ages later at the end, 10:45 a.m. [The trial court] cannot account f or the time notations[,] but [the court] highly doubts that all present spoke fast enough to produce eight pages in one minute. The transcript reveals clear and convincing eviden ce of [Safe Auto’s] bad faith conduct regarding [Mangan’s ] insurance claim. [Mangan] met his burden. It must be kept i n mind that the evidence was uncontroverted[,] and was found by the [trial court], as fact finder, to be credible and compelli ng. [The trial court was] impressed not only by [Mangan’s counsel’ s] summary of [Safe Auto’s] conduct[,] but also by [Mangan’s] demeanor and statements during and after the summary. No one ne eds the kind of aggravation [that Safe Auto] put [Mangan] t hrough. Trial Court Opinion, 2/24/15, at 9. We agree with the trial court’s rationale, which is supported by the record, and affirm on thi s basis in concluding that the trial court properly exercised its discretion i n imposing bad faith damages. See id. ; see also J.J. DeLuca Co., supra (stating that this Court must respect a trial court’s findings with re gard to the credibility and weight of the evidence). Finally, we observe that the trial court conceded that it incorrectly failed to limit the non-jury award to $25,000 pursu ant to Local Rule 1303(a)(2). See Trial Court Opinion, 2/24/15, at 8; see also PA AlleghenyJ-A29039-15

- 11 - Cty. LR 1303(A)(2)(2), supra ; see also Brief for Appellant at 6 n.1. We agree, and therefore direct that the trial court pr othonotary modify the $35,000 verdict in favor of Mangan to $25,000. 7 Judgment affirmed as modified. Jurisdiction relinq uished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 12/23/2015

7 Mangan does not challenge the modification of the verdict. See Brief for Appellee at 2.1

the two proffered excuses are unsatisfactory. Defendant ' s Motion and its 1925(b) Statement make out its counsel's own negligence, for which especially an experienced attorney such as Defendant's counsel. We also found that the that the mistakes, accepted as true , were not the sort that would have misled any attorney, blames Plaintiff and (2) he blames the Court. We concluded that his blame was misplaced and for his failure to put the arbitration hearing date in his calendar and his failure to appear: (1) he appear at the scheduled arbitration hearing

. On appeal, Defendant's counsel gives two excuses Trial Relief was denied. A non-jury verdict was entered against Defendant, who had failed toDefendant has appealed from the entry of judgment against it after its Motion for PostOPINION Defendant. SAFE AUTO INSURANCE COMPANY, vs. No. AR-14-002796 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, JAMES MANGAN, IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION 

## ->

- . r\ot.. -, 

### u :'.J , - 

### '-> (' · ,.. . I 

# ? 1 ·

--. I ' Circulated 12/03/2015 04:04 PM1 The ori g inal in the Court papers ha s a complete and legible stamped date of hearing. Ho w ever , we assumed the

stamp on Defendant's cop y was indeed incomplete and contained onl y an undescribed, but clearl y printed, date. 2 §8371. for a new Hearing as the Court had no basis for an award of damages under 42 Pa. C.S "3. This Honorable Court erred in failing to vacate the Verdict and remand the case County Local Rule 1302. for a new Hearing due to the Notice of Hearing Date failing to comply with Allegheny "2. This Honorable Court erred in not vacating the Verdict and remanding the case should be dismissed for failure to appear for an Arbitration hearing. consider the factors enumerated by the Superior Court in determining whether an action "1. This Honorable Court erred in rendering a Non-Jury Verdict due to its failure to Defendant filed a timely l 925(b) Statement which lists eight matters, fully quoted below: ISSUES RAISED ON APPEAL constitute a valid excuse for Defendant's failure to appear, as will be discussed later herein. both those facts were correct. However, alone or together, we concluded that they did not file an Answer and their duty to appear at the scheduled Arbitration hearing

. We assumed that informs defendants of the significance of there being a complaint filed against them, the need to error by Plaintiff consisted of some typographical errors in the mandatory Hearing Notice that the portion indicating that the stamped date was the hearing date was missing or illegible. 1 The date stamp placed on his copy of the Complaint in Arbitration showed only the hearing date and The supposedly critical error by the Court, according to Defendant's counsel, is that the AR-14-002796 

# . r r i Circulated 12/03/2015 04:04 PM4

might be unaware of our Local Rules and custom. Counsel states he has been in practice here for established local practice. It is clearly not a new practice nor an out-of-town practice, whichAccording to Defendant's Motion, the law firm representing Defendant has a wellno abuse of that discretion. granting a new trial. To the extent that this is a matter for the Court's discretion, there has been caused him not to note the date

. It is well settled that negligence of counsel is not a basis for new arbitration hearing. We properly concluded that it was counsel's own negligence that excuses for his non-appearance were unsatisfactory and did not warrant granting Defendant a We reviewed Defendant's Motion for Post-Trial Relief and concluded that Counsel's in his calendar

. Motion demonstrate that its counsel had sufficient notice of the date and merely failed to note it 1. The hearing properly proc e eded in Def e ndant's absence since the record and Defendant ' s DISCUSSION admit is $25,000, requires that there be a new hearing or trial. faith damages, and if so, whether correcting the maximum judgment amount, which we now 3. Whether there was clear and convincing evidence to warrant the imposition of bad satisfactory excuse was indeed proffered

. relevant concepts in the context of Rules 1303 and 218, absent an initial finding that a i.e

. whether prejudice (here, to the Plaintiff) and the consideration of " lesser sanctions" are 2. Whether principles of fundamental fairness and the interest of justice were violated, AR-14-002796 I { Circulated 12/03/2015 04:04 PM5

ignore the factors set forth by our appellate courts. of the Civil Division of the Court of Common Pleas for the Fifth Judicial District improperly Plaintiff's counsel and the Court, asserting, in effect, that the Local Rules, policies and customs Despite all the above indicators, Defendant places the blame for the failure to attend on always been regarded as adequate notice to attorneys of an upcoming hearing or trial.

(4) The hearing date was advertised in the Pittsburgh Legal Journal, which has that it should find out what hearing date had been assigned; aware that there would be a hearing before a Board of Arbitrators at some time and was on notice

(3) Defendant had filed its Answer to the complaint, an indication that it was other reasons would have revealed the hearing date.

(2) The electronic docket itself contains the hearing date, so any perusal of it for date would have disclosed the date. probably the hearing date, a search of the easily accessible electronic docket for the "missing" cover sheet reveals a clearly stamped date; if that glance did not convey the fact that it was assigned when an arbitration complaint is filed; a simple glance at the Defendant's copy of the

(1) The Local Rules as well as local custom provide that the hearing date is There were several indicators which should have alerted counsel of the hearing date: the first time. unsophisticated private individual encountering our legal system or the Arbitration Section for a long time and has never before missed a hearing. In addition, Defendant itself is not an AR-14-002796 ; ;- \j_· Circulated 12/03/2015 04:04 PM6

would put an undue burden on the clerks who run the Arbitration Section. which would then have to be made to all parties who do not show up for an arbitration hearing, concept is notice, not a courtesy call. Furthermore, requiring that the Court make courtesy calls, a non-appearing party be given a telephone reminder in the circumstances here. The applicable 764 A.2d 6009 (Pa. Super. 2000). Neither Williams nor Shin nor any Rule of Court requires that Cmwth. 2005) which was based on a case in the Pennsylvania Superior Court, Shin v. Brenan, Defendant relies on Williams v. School District of Philadelphia, 870 A.2d 414 (Pa. interest of justice. him he had not appeared. This is all said to violate principles of fundamental fairness and the complains that neither the judge nor opposing counsel gave him the courtesy of a call to remind the Motions Court Judge sitting on the day of the arbitration hearing. Defendant's counsel In accordance with Local Rule 1303 and local custom, the case at issue was assigned to avoid and which even pro se litigants are subject to. inevitable consequence of non-appearance or non-responsiveness that attorneys must take care to do not view conducting a trial after due notice to the absent party as a "sanction." Rather, it is an sanctions," that, too, logically can only make sense if a satisfactory excuse is first proffered. We appearing party's excuse is unsatisfactory, as here. As for the "consideration of lesser However, to give meaning to Local Rule 1303, we should not consider such prejudice if the nonat the prejudice to the Plaintiff caused by requiring him to attend a new hearing or trial. If Defendant had had a satisfactory excuse for not appearing, we would then have to look first a satisfactory excuse for the Defendant's failure to appear at the Arbitration hearing. 2. Prejudice to the Plaintiff and the "consideration of lesser sanctions" only apply 

### if there is AR-14-002796 Circulated 12/03/2015 04:04 PM7 Rule 1303 has been amended to provide an additional alternative in such a circumstance and allow a court of common pleas by local rule to provide that the court may hear the case if the notice of hearing so advised the parties and all parties present agree. If the court hears the matter, then the parties will have had their trial in the court of common pleas

. Relief
from the decision of the court will be by motion for post-trial relief following the entry of a nonsuit or a decision of the court or by petition to open a judgment of non pros . Relief from the action of the trial court will be by appeal to an appellate court. As the new notice advises , there will be "no right to a de nova trial on appeal from a decision entered by a jud g e . If at a hearing before a board of arbitrators one party was ready and the other was not, Rule of Civil Procedure 1303 previously provided for the arbitration to proceed and an award to be made unless the court
ordered a continuance. Under this rule , some courts experienced the problem of a party failing to appear for the arbitration hearing and then appealing for a trial de novo before the court.

EXPLANATORY COMMENT-- 1998 The 1981 Explanatory Comment to Rule 1303 makes it clear that it is up to opposing
counsel to decide whether o r not to ask the court to continue the matter. There is no mandate at all for a courtesy call. Furthermore, in light of the 1998 Explanatory Comment regarding the
addition of sub-paragraph (a)(2), encouraging such an extension of professional courtesy might very well undermine the purpose of that provision. That Comment is fully quoted below: AR-14-002796 Circulated 12/03/2015 04:04 PM8

Counsel for both parties agree that our Local Rule 1303 (a)(2)(2) limits a non-jury award to $25 ,000. We agree that this aspect of Defendant's Post-Trial Motion should have been granted and the judgment amount should have been reduced to $25,000. However, making this correction does not require a new trial. 3. We confess error as to the maximum amount awardable in the circumstances here; however the imposition of the correct but lower maximum was supported by clear and convincing evidence. A post-trial motion based on an excuse for the defendant's failure

to appear must first allege facts that, if true, make out a satisfactory excuse, so as to rebut the presumption created by 218( c ). Here the only excuse, negligence, is not satisfactory, especially given the law involving published notice in the Legal Journal. Rule 218 governs the instance when a party is not ready when a
case is called for trial. The note to subdivision ( c) prior to its amendment referred to the right of a plaintiff to seek relief from the entry of a nonsuit or a judgment of non pros but omitted any reference to a defendant seeking relief from the decision of the court following a trial. A new paragraph has been added to the note calling attention to the defendant's right to file a motion for post-trial relief "on the ground of a satisfactory excuse for the defendant's failure to appear." [That new paragraph is Rule 218( c ): "A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse."] AR-14-002796 Circulated 12/03/2015 04:04 PM9

We did not abuse our discretion by finding that simple steps could have and should have revealed the date of the impending arbitration hearing to defense counsel at any time, and that in

an y case counsel had sufficient notice when the hearing date was published in the Legal Journal. The ruling here does not "shock the conscience " or violate principles of justice

. Rather, it was based on well-settled principles regarding when a party ' s failure to appear does or does not warrant entry of a verdict against it. Those principles should not be vio l ated and our court 's usual practices and policies ignored simply for the purpose of benefiting one attorney or one client merely 1 because they are usually diligent. CONCLUSION The transcript reveals clear and convincing evidence of Defendant ' s bad faith conduct regarding Plaintiffs insurance claim. The Plaintiff met his burden

. It must be kept in mind that the evidence was uncontroverted and was found by the undersigned, as fact finder, to be credible and compelling. We were impressed not only by the summary of Defendant's conduct but also by Plaintiffs demeanor and statements during and after the summary. No one needs the kind of aggravation Defendant put Plaintiff through. As for the contention that the evidence doesn ' t support the verdict, especially as to bad faith damages, we note that the non-jury trial held before the undersigned pursuant to Pa.R.C.P.
1303 is of record in an 8-page Transcript. Defendant contends that the trial was only one minute long , apparently because the time noted in the transcript at the start of the trial is the same noted eight pages later at the end, 10 : 45 a.m. We cannot account for the time notations but we highly doubt that all present spoke fast enough to produce eight pages in one minute. AR-14-002796 Circulated 12/03/2015 04:04 PM10

appeal is without merit. The judgment amount should be modified to $25,000 and otherwise

affirmed

. ~ ~ Defendant's failure to attend the hearing. We applied Rules 1303 and 218 appropriately and this Hearing Notice were of such magnitude that we should have ruled they were the cause of Neither the Court's procedures nor Plaintiffs counsel ' s typographical errors in the AR-14-002796 I



### .. . Circulated 12/03/2015 04:04 PM