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Styliani Mashas, and John v. Mary Elizabeth Sucich

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT


May 4, 2011

STYLIANI MASHAS, AND JOHN MASHAS, H/W AND STAVROS PAXINOS, AND ANGELICA PAXINOS, H/W, PETITIONERS
v.
MARY ELIZABETH SUCICH, RESPONDENT

Petition for Allowance of Appeal from the Order of the Superior Court

Per curiam.

ORDER

AND NOW, this 4th day of May, 2011, the Petition for Allowance of Appeal is GRANTED. Petitioners' counsel explained her absence at trial was due to the trial court's failure to comply with Administrative Judicial Order 98-1, a Philadelphia local rule of civil procedure that mandates notice of trial be given no later than 3:00 p.m. the day prior to trial. See Administrative Judicial Order 98-1 ("Cases will not be assigned later than 3:00 p.m. on the day prior to jury selection."). It is undisputed the trial court did not comply with this rule, as it notified Petitioners' counsel of the upcoming trial at 3:55 p.m. the day before trial. As such, Petitioners demonstrated a reasonable explanation for their absence, and have therefore met the second prong of the test for opening a judgment of non pros. See Pa.R.Civ.P. 3051 (to seek relief from a judgment of non

pros, a petitioner must show (1) the petition was timely filed; (2) there is a reasonable explanation for the inactivity or delay; and (3) there is a meritorious cause of action). As the Superior Court held otherwise, its conclusion was in error. Accordingly, the order of the Superior Court is VACATED, and the matter is REMANDED to the Superior Court for consideration of the remaining factors for granting a motion to open a judgment of non pros.

Justice Saylor files a Dissenting Statement which is joined by Justice Eakin.

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

STYLIANI MASHAS, AND JOHN MASHAS, H/W AND STAVROS PAXINOS, AND ANGELICA PAXINOS, H/W, Petitioners v. MARY ELIZABETH SUCICH, Respondent

No. 356 EAL 2010

Petition for Allowance of Appeal from the Order and Memorandum Opinion of the Superior Court at 2353 EDA 2009, dated June 2, 2010, affirming the Order of the Court of Common Pleas of Philadelphia County at No. 3588 April Term, 2007, dated June 16, 2009

DISSENTING STATEMENT

MR. JUSTICE SAYLOR

FILED: May 4, 2011

The allocatur stage is normally reserved for making the threshold determination of whether to grant discretionary review. See Supreme Court IOP §5C. Here, however, the majority undertakes merits review at the allocatur stage. Thus, it proceeds to enter an order dispositive of factual and legal matters in this case, although we have no briefs, and the respondent was not required to file an answer and has not done so.

The basis for the majority's order is its assertion that "[i]t is undisputed the trial court . . . notified Petitioners' counsel of the upcoming trial at 3:55 p.m." There is, however, no finding to this effect by the court of original jurisdiction, no affirmative admission by the respondent, and no factual record from which such a fact could be derived. At this juncture, there is only the assertion by Petitioners' counsel.

I maintain the concern that the Court should exercise greater restraint at the discretionary review stage. Cf. Progressive N. Ins. Co. v. Henry, 4 A.3d 153 (Pa. 2010) (Saylor, J., dissenting); County of Berks v. Int'l Bhd. of Teamsters Local Union No.429, 963 A.2d 1272, 1272-73 (Pa. 2009) (Saylor, J., dissenting). While the sentiment appears to prevail that this type of error-review case does not warrant full briefing and ordinary consideration by this Court on the appeal docket, I remain of the view that shortcutting such process is not a tenable alternative in the absence of concretely established facts and clearly and directly applicable law. Cf. id; Supreme Court IOP §3(B)(5).

Mr. Justice Eakin joins this Dissenting Statement.

20110504

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