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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 the accident, Mangan had 

an existing auto insurance policy with Safe Auto, which included collision 

coverage. After informing Safe Auto of the accident, Mangan took the 

vehicle to the dealership from which he purchased it 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 personal funds to pay for 

the repairs. 
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 In July 2014, Mangan filed a Complaint against Safe Auto, in the 

Arbitration Division of the Allegheny County Court of Common Pleas, alleging 

breach of contract, and bad faith refusal to pay Mangan’s claim. In August 

2014, Safe Auto filed an Answer and New Matter, asserting that it was not 

required to cover the damage to the vehicle under the terms of Mangan’s 

policy with Safe Auto. Safe Auto was represented by 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 scheduled hearing time, the 

trial court held an ex parte trial, on the same day, pursuant to its authority 

 
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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 testimony 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 by 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 notice required by 

subdivision (a)(1) include the following statement: 

“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.” 

(b) When the board 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. 

Note: It is within the discretion of the court whether it 

should hear the matter or whether the matter should

proceed in arbitration. ... 

Pa.R.C.P. 1303 (some notes omitted). In the instant 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 Judge 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 trial de novo on appeal.”). 
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Mangan, the trial court entered a verdict against Safe Auto for $35,000, 

which included over $24,000 in bad faith damages. 

 A few days after the entry of the verdict, Safe Auto filed a Motion for 

post-trial relief. Safe Auto asserted that the trial court should vacate the 

verdict, and schedule the case for a new arbitration hearing, because there 

was no evidence presented that defense counsel’s failure to appear was 

intentional, and defense counsel was not adequately notified concerning the 

time of the arbitration hearing. Safe Auto additionally claimed that the trial 

court erred by failing to (1) consider any lesser sanctions than imposing an 

ex parte verdict; and (2) limit the non-jury award to $25,000, in violation of 

Allegheny County Local Rule 1303(a)(2).3 

By an Order dated November 25, 2014, the trial court denied Safe 

Auto’s post-trial Motion, without a hearing, and directed the prothonotary to 

enter a judgment in favor of Mangan for $35,000. The prothonotary entered 

Judgment the next day. Safe Auto then filed a timely Notice of Appeal. The 

trial court ordered Safe Auto to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal, and it timely complied. The trial court 

issued a Pa.R.A.P. 1925(a) Opinion. 

On appeal, Safe Auto presents the following questions for our review: 

1. Whether the trial court erred in entering a non-jury 

verdict against [Safe Auto], where [defense] counsel 

 

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.”). 
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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 appear was 

inadvertent[;] whether any prejudice was caused by the 

delay[;] and whether the [trial] court gave any 

consideration to lesser sanctions, even though defense 

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 vacate the 

verdict and remand[] the case for a new hearing on the 

basis of fundamental fairness and to promote the interest 

of justice[?] 

3. Whether the [trial] court [] erred in failing to vacate 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 ease of disposition) (some 

capitalization omitted).4

This Court’s standard and scope of review in an appeal from a non-jury 

verdict is as follows: 

Our appellate role in cases arising from non-jury trial verdicts is 

to determine whether the findings of the trial court are 

supported by competent evidence and whether the trial court 

committed error in any application of the law. The findings of 

fact of the trial judge must be given the same weight and effect 

 

4

 Initially, we observe that at the end of its Argument section, Safe Auto 

appears to raise a fourth “issue,” asserting that one of the cases that 

Mangan relies upon in his appellate brief is inapplicable. See Brief for 

Appellant at 15. However, Safe Auto did not set forth 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 unless it is stated in the 

statement of questions involved or is fairly suggested thereby.”). 
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on appeal as the verdict of a jury. We consider the evidence in a 

light most favorable to the verdict winner. We will reverse the 

trial court only if its findings of fact are not supported 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 was manifestly erroneous, 

arbitrary and capricious or flagrantly contrary to the evidence.” Id. (citation 

omitted). 

 We will address Safe Auto’s first two issues together, 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 the appellate courts to be 

used to determine whether an action should be dismissed for failure to 

appear[.]” Brief for Appellant at 8. Safe Auto relies 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 arbitration hearing, and the 

trial court conducted an ex parte trial and entered a verdict against the 

defendant, holding that the trial court erred and should have considered the 

following factors: “(1) whether counsel’s failure to appear was part of a 

 

5

 Although decisions by the Commonwealth Court are not 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). 
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pattern of improper behavior, misconduct or abuse; (2) whether the failure 

to appear was inadvertent; (3) whether the court attempted to contact 

counsel; (4) whether the opposing party would be prejudiced 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 defense counsel’s 

failure to appear was intentional. ... There is absolutely no 

evidence that [] defense counsel’s failure to appear was part of a 

pattern of improper behavior, misconduct or abuse. Defense 

counsel is an upstanding member of the [Pennsylvania] Bar[,] 

and has never missed an arbitration hearing date in his eighteen 

[] years of practice[.] ... The evidence in this case 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 proper notice 

of the arbitration hearing. There was no attempt on the part of 

[Mangan’s counsel] or the [trial] court to contact [defense] 

counsel. ... [Mangan] would not have been prejudiced 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 date. ... 

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 some capitalization 

omitted). 

In its second issue, Safe Auto argues that “[t]he verdict should be 

vacated on the basis of fundamental fairness and to promote the interest of 
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justice[,] as the failure of [defense counsel] to appear 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]ndividual cases are, 

of course, of great importance to the litigants involved, and courts must not 

overreach in their zeal to move cases to such an extent as to allow for no 

deviations from strict and literal adherence to policies 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 properly denied Safe 

Auto’s request that the verdict be vacated, as defense 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 hearing 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 analysis is supported by the law 

and the record, and we discern no abuse of discretion by the court. 
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Accordingly, we affirm based the trial court’s Opinion 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 the 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” evidence 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 purposes 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 defenses 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 support 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 reliance 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 hospitalized several times 

due to complications with her pregnancy; and (2) did not receive notice of 

the time of the scheduled hearing). 
J-A29039-15 

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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 Auto’s claim as follows: 

As for the contention that the evidence doesn’t support the 

verdict, especially as to bad faith damages, ... the non-jury trial 

held ... pursuant to Pa.R.C.P. 1303 is of record in an 8-page 

[t]ranscript. [Safe Auto] 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. [The trial court] cannot account for 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 evidence of 

[Safe Auto’s] bad faith conduct regarding [Mangan’s] insurance 

claim. [Mangan] met his burden. It must be kept in mind that 

the evidence was uncontroverted[,] and was found by the [trial 

court], as fact finder, to be credible and compelling. [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 needs the 

kind of aggravation [that Safe Auto] put [Mangan] through. 

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 this basis in concluding that 

the trial court properly exercised its discretion in 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 regard 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 pursuant to Local Rule 

1303(a)(2). See Trial Court Opinion, 2/24/15, at 8; see also PA Allegheny 
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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 prothonotary modify the 

$35,000 verdict in favor of Mangan to $25,000.7

Judgment affirmed as modified. Jurisdiction relinquished. 

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 to 

Defendant 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 PM
1 The original in the Court papers has a complete and legible stamped date of hearing. However, we assumed the 

stamp on Defendant's copy was indeed incomplete and contained only an undescribed, but clearly 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 

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r i 

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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, which 

According 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 proceeded in Defendant'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, 

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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 

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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 

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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 

judge. 

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 or 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: 

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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."] 

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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 

any 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 violated and our court's 

usual practices and policies ignored simply for the purpose of benefiting one attorney or one 

client merely 1because 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. 

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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 

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