What Happens If a Lawyer Does Not Show Up to a Settlement Conference ?
In Shin v. Brenan, 2000 PA Super 390, 764 A.2d 609 (Pa. Super. 2000), the defendant in a personal injury case appealed an arbitration award in favor of the plaintiff.
At the appeal status listing, defendant's counsel was present, and the case was assigned a settlement conference date.
Defendant's counsel failed to appear at the settlement conference, and the appeal was dismissed.
Defendant petitioned the trial court to reinstate the appeal, averring that counsel for defendant inadvertently neglected to note the date of the conference on his calendar.
Without hearing, the trial court concluded that defendant's excuse for missing the conference was "unsatisfactory" under Rule No. 218 of the Rules of Civil Procedure.
On appeal, the Superior Court noted that the trial court had the authority to dismiss defendant's case under Rule No. 218 but concluded that the trial court abused its discretion in doing so.
The Court stated as follows:
In her petition to reinstate her arbitration appeal, defendant stated that counsel failed to appear due to an inadvertent mistake, i.e., that counsel failed to note the date of the conference on his calendar.
As noted above, the record reveals no attempt on the part of the court to contact counsel before dismissing the appeal.
There was no suggestion by the trial court that counsel's behavior was part of a pattern of misconduct or abuse.
There is no allegation that the opposing party would be prejudiced by a delay.
The trial court did not conduct a hearing, either before dismissing the appeal or on defendant's petition to reinstate the appeal, in which it could have fully reviewed the appropriateness of the dismissal.
Most importantly, there is no indication that the trial court gave any consideration to lesser sanctions. Id. at 611.
While Shin involved a failure to appear at a settlement conference, the Superior Court extended that holding to failure to appeal for an arbitration hearing. Thompson v. Houston, 2003 PA Super 467, 839 A.2d 389 (Pa. Super. 2003); Faison v. Turner, 2004 PA Super 350, 858 A.2d 1244 (Pa. Super. 2004).
While those cases are not binding on this Court, they cogently set forth the factors that a trial court should use to dismiss an action for failure to appear, and we adopt them as our own.
Rule No. 218 of the Rules of Civil Procedure provides as follows:
(a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court's own motion.
(b) If without satisfactory excuse a defendant is not ready, the plaintiff may
(1) proceed to trial, or,
(2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.
(c) a party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse. Pa. R.C.P. No. 218.
The explanatory comments to Rule No. 218 provide in part as follows:
If the court enters a nonsuit or a judgment of non pros or dismisses an appeal and there exists a sufficient excuse, the aggrieved party may present the excuse through a motion to remove the nonsuit or a petition to open the judgment or reinstate the appeal.
The petition or post-trial procedure will result in a record which will enable an appellate court to review the trial court's action to determine if there has been an abuse of discretion. Id.