Nicholas Malfitano Aug. 19, 2015, 1:39pm


PHILADELPHIA – The Superior Court of Pennsylvania decided on Thursday to uphold a 2014 decision of the Northampton County Court of Common Pleas in favor of defendant M.S. Reilly, Inc. of Easton and against Heywood Becker of Carversville.

Judges Mary Jane Bowes, Christine L. Donohue and Victor P. Stabile ruled on this matter, as Stabile authored the Court’s decision to concur with that of the trial court in this negligence action.

Becker commenced the litigation on April 6, 2011, alleging a faulty drainage swale on Reilly’s property caused water damage to Becker’s property. After a series of preliminary objections and amended complaints, the trial court listed the matter for trial on Dec. 16, 2013.

On Dec. 12, 2013, four days before the trial was scheduled to commence, Becker filed a praecipe to discontinue the case. On the same day, Reilly filed a motion to strike the discontinuance, and informed Becker it would present the motion for trial on Dec. 16. However, Becker did not appear for trial.

In its absence, the trial court granted Reilly’s motion to strike off the discontinuance and proceeded with trial on the merits. At the conclusion of the trial, at which Reilly presented expert testimony and other evidence, the trial court found in its favor.

Becker filed a timely post-trial motion on Dec. 24, 2013, requesting reconsideration of the order striking off his discontinuance, which the trial court later denied along with Becker’s other post-trial motions, including a recusal motion for abuse of discretion. Becker appealed on Feb. 28, 2014.

On appeal, Becker challenged the trial court’s denial of his recusal motion and the order striking off his discontinuance – issues he wanted the Superior Court of Pennsylvania to address. According to Stabile, the Court conducted a two-tiered analysis.

“First, whether the Justice would have a personal bias or interest which would preclude an impartial review. This is a personal and unreviewable decision that only the jurist can make. Second, whether his participation in the matter would give the appearance of impropriety. To perform its high function in the best way, justice must satisfy the appearance of justice,” Stabile said.

Becker claimed the trial judge should have recused himself from any matter involving his counsel because, in his capacity as administrative judge of the Northampton County Orphans’ Court, he issued a rule against counsel and threatened to bar counsel from practicing before that court. It was an argument the Superior Court of Pennsylvania did not support.

“The record does not support Appellant’s argument. Appellant’s counsel was counsel of record for several cases pending in orphans’ court for which no filing fees had been paid. The trial court issued an order directing Appellant’s counsel to pay the fees or appear and explain the failure to pay,” Stabile said. “Appellant’s counsel’s outstanding filing fees totaled $73.00. The trial judge stated on the record: ‘There is no way on God’s green earth I would bar an attorney from practicing in this Court” over such a small amount of money. There is no way that would ever happen.”

As Becker’s counsel was one of several attorneys subject to that order and based on the trial court judge’s comments, Stabile found Becker’s first argument to be lacking merit.

Becker further asserted the trial court erred in granting Reilly’s motion to strike off the discontinuance and proceed with trial in Becker’s absence, but Stabile added the trial court was correct to do that.

“Appellee arrived prepared to present a full defense, including expert testimony. Given appellant’s apparent lack of diligence in prosecuting the matter, the eleventh hour discontinuance, and appellee’s preparedness, the trial court chose to strike off the discontinuance and proceed with trial. We discern no abuse of discretion in the trial court’s decision,” Stabile said.

Stabile concluded Becker had sufficient notice of when the trial was slated to commence and the Court was correct in proceeding, in spite of Becker not being present.

“A trial court may proceed with a trial in a party’s absence where the party has notice and fails to appear. Appellant had notice that trial would commence on Dec. 16, 2013, and he further had notice of appellee’s intent to proceed with trial if the court granted the petition to strike off the continuance. Despite this, appellant chose not to appear. The trial court did not err in proceeding with trial after striking off the discontinuance,” Stabile said. “In summary, we have concluded that each of appellant’s arguments is lacking in merit. We therefore affirm the judgment.”

The appellant is represented by David Andrew Williams of Marshall Dennehey Warner Coleman & Goggin, in Allentown.

The appellee is represented by Michael T. Foster in Quakertown and Ronald L. Clever in Allentown.

The Superior Court Of Pennsylvania case 712 EDA 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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