Opinion
No. 2957 EDA 2003.
Filed: October 25, 2004.
Appeal from the Judgment Entered September 5, 2003, In the Court of Common Pleas of Philadelphia County Civil Division at No. 000247 September Term, 2002.
The Opinion by Judge Bender was withdrawn. The application for reargument was granted on December 28, 2004.
¶ 1 Robert Half International, Inc. (Half) appeals from the order docketed on September 5, 2003, which (1) entered a judgment of non pros against it for failing to attend a scheduled arbitration hearing; and (2) entered a judgment against it on a counterclaim filed by Marlton Technologies, Inc. (Marlton). We affirm.
¶ 2 A brief history of this Philadelphia County litigation follows. On September 4, 2002, while represented by an attorney based in Pittsburgh, Half filed a complaint against Marlton alleging breach of contract and asking for $35,000 in unpaid consulting fees relating to services provided by Half to Marlton. See Complaint, 9/4/02, at ¶ 3. The next day, the court scheduled a date for arbitration of this matter, as the amount of damages Half sought was less than $50,000. The arbitration was scheduled for May 1, 2003.
¶ 3 On December 9, 2002, Marlton filed an answer with new matter and a four-count counterclaim against Half alleging breach of contract, fraud, negligent misrepresentation, and promissory estoppel. Additionally, on the face of its pleadings, Marlton indicated its demand for a jury trial. On January 8, 2003, two new Philadelphia-based attorneys entered their appearance on behalf of Half, and, on the same date, filed an answer to Marlton's counterclaim.
¶ 4 On May 1, 2003, the date scheduled for the arbitration, no one for Half appeared. The court entered an order certifying Half's nonappearance and, with consent of all parties present ( i.e., Marlton), the matter was transferred from arbitration to the trial court to be heard without the absent party pursuant to Pa.R.C.P. 1303(b)(2) and Phila.Civ.R. 1303(a). Thus, on the same date, i.e., May 1, 2003, the Honorable Barbara A. Joseph heard the case in the trial court. With regard to Half's complaint, Judge Joseph entered a judgment of non pros against Half for its failure to appear. Furthermore, at the resulting trial in which Marlton presented evidence in support of its counterclaim, Judge Joseph ruled in favor of Marlton on its counterclaim and awarded Marlton a total of $513,613 in damages.
¶ 5 Half filed a post trial motion on May 9, 2003, seeking to strike the judgment entered against it on Marlton's counterclaim. Half filed another post trial motion on May 12, 2003, seeking to open or strike the judgment of non pros entered against it on its complaint against Marlton on the basis of lack of notice of the arbitration date. The trial court entered an order, docketed on August 25, 2003, denying Half's post trial motions. On September 5, 2003, the trial court docketed its judgment of non pros against Half and its judgment in favor of Marlton on the counterclaim. New counsel entered their appearance for Half and filed a notice of appeal on September 22, 2003.
¶ 6 Half raises the following issues in the "Statement of the Questions Involved" portion of its brief:
1. Did the trial court err in determining that it had jurisdiction over the Counterclaim upon referral from the Arbitration Center under Rule 1303(b)(2) so as to permit it to conduct a bench trial without . . . Half present where the Counterclaim was never subject to arbitration?
2. Did the trial court err in determining that it had jurisdiction over the Complaint so as to permit it to enter an order of non pros on the Complaint pursuant to Rule 1303(b)(2) where the combined amount in controversy based on the Complaint and Counterclaim exceeded the $50,000 arbitration limit established by 42 Pa.C.S. § 7361?
3. Did the trial court err and/or abuse its discretion in refusing to grant the post-trial motions because Robert Half's failure to appear was excusable under the circumstances presented by this case?
4. Was the "evidence" offered in the "trial" conducted with only one side present sufficient to support the verdict entered by the trial judge?
Appellant's brief at 5 (trial court determinations omitted).
¶ 7 We will consider the first two issues together as they involve the question of the trial court's jurisdiction in this matter. Accordingly, we note that "[t]he question of jurisdiction is a pure question of law, as to which our review is plenary." MCI WorldCom, Inc. v. Pennsylvania Pub. Util. Comm'n, 844 A.2d 1239, 1246 n. 3 (Pa. 2004).
¶ 8 We first note that the initial pleading in this case, i.e., the complaint filed by Half, was subject to compulsory arbitration pursuant to the provisions of section 7361 of the Uniform Arbitration Act ( 42 Pa.C.S. §§ 7301- 7362). See 42 Pa.C.S. § 7361. Section 7361 governs compulsory arbitration in Pennsylvania:
§ 7361. Compulsory arbitration
(a) General rule. — Except as provided in subsection (b), when prescribed by general rule or rule of court such civil matters or issues therein as shall be specified by rule shall first be submitted to and heard by a board of three members of the bar of the court.
(b) Limitations. — No matter shall be referred under subsection (a):
. . .
(2) where the amount in controversy, exclusive of interest and costs, exceeds:
(i) $50,000 in judicial districts embracing first, second, second class A or third class counties or home rule counties which but for the adoption of a home rule charter would be a county of one of these classes; or
(ii) $25,000 in any other judicial district.
42 Pa.C.S. § 7361(a), (b)(2). Consistent with this statute is Philadelphia Civil Rule 1301, which provides, in pertinent part, as follows:
Except as provided hereunder, all cases having an amount in controversy, exclusive of interest and costs, of $50,000.00 or less shall be assigned to the Compulsory Arbitration Program of the Court of Common Pleas of Philadelphia County. . . .
Phila.Civ.R. 1301. The parties agree, as per 42 Pa.C.S. § 7361(b)(2)(i) and Phila.Civ.R. 1301, that the $50,000 jurisdictional limit applies in Philadelphia County.
¶ 9 The parties also agree that the matter was properly submitted to compulsory arbitration at the time that Half filed its complaint on September 4, 2002. The ad damnum clause in Half's complaint consisted of a special prayer for relief in the amount of $35,864.74 for amounts purportedly due from Marlton, attorney's fees, and other appropriate costs. The amount prayed for was deemed appropriate for submission of the case to the Compulsory Arbitration Program in Philadelphia County ("Arbitration Program"). When Half initiated the case by filing its complaint, the case was appropriately assigned for compulsory arbitration and the prothonotary properly scheduled an arbitration hearing date for May 1, 2003. See Phila.Civ.R. 1303(a). On December 9, 2002 ( i.e., after the matter was scheduled for arbitration, but before the actual hearing date of May 1, 2003), Marlton filed its answer, new matter, and counterclaim against Half. The amount of damages prayed for in the counterclaim exceeded the $50,000 jurisdictional limit of the Arbitration Program. Thus, the critical question is whether the amount of damages claimed by Marlton, exceeding $50,000, destroyed the subject matter jurisdiction that had properly vested in the Arbitration Program before the filing of the counterclaim.
See docket entry of September 5, 2002, indicating "arbitration hearing scheduled."
¶ 10 To answer this question, we must first resolve the issue of whether Marlton's counterclaim is considered to be in the same case as the initial complaint filed by Half. The case law convinces us that counterclaims are generally considered part of the same case. See, e.g., In re Grand Jury, 286 F.3d 153, 156 (3d Cir. 2002) (including counterclaims in its description of an underlying "civil case"); Galloway v. Zuckert, 424 N.W.2d 437, 440 (Iowa 1988) (interpreting the word "action," as used in rule of civil procedure, to include a counterclaim). See also Pa.R.C.P. 1017 (indicating that "the pleadings in an action" include counterclaims) (emphasis added). Indeed, the counterclaim in this case arose from the same relationship between the parties at issue in Half's complaint. Now we must determine if the filing of the counterclaim, which is part of the same case as the complaint, divested the Arbitration Program of jurisdiction because it demanded damages in excess of $50,000.
Half admits in its brief that the complaint and counterclaim "are part of the same case. . . ." Half's brief at 17. See also Half's brief at 19 ("Put simply, this was one case, with a claim and a counterclaim.").
¶ 11 We conclude initially that it did not. The express statutory terms upon which we base this conclusion are found in certain Philadelphia local rules, as we shall explain infra, and section 7361, which states that " [n]o matter shall be referred to [compulsory arbitration] where the amount in controversy . . . exceeds . . . $50,000. . . ." 42 Pa.C.S. § 7361(b)(2) (emphasis added). As described above, and agreed to by the parties, the matter was properly referred to arbitration in the first place when Half filed its complaint. However, the statute is silent on the issue of whether a counterclaim asserting damages that exceed the jurisdictional arbitration limit would automatically destroy the subject matter jurisdiction that was vested in the Arbitration Program in the first place, before the filing of such counterclaim. Similarly, the express language of Philadelphia Civil Rule 1301 provides that, with certain exceptions, all cases "having an amount in controversy . . . of $50,000 or less shall be assigned to the [Arbitration Program]." Phila.Civ.R. 1301 (emphasis added). Additionally, Philadelphia Civil Rule 1303(a) indicates that a case is assigned to the Arbitration Program and an arbitration hearing is scheduled at the time of the filing of the complaint, thereby lending further support to our conclusion that the case was properly assigned to the Arbitration Program based solely on the damages alleged in the complaint — i.e., the damages or amount in controversy existing at the time the jurisdiction of the Arbitration Program attached.
¶ 12 Again, when Half initiated this case by filing its complaint, the case was properly assigned for arbitration. The local rules as well as section 7361 are silent as to what event could potentially destroy the Arbitration Program's subject matter jurisdiction over a case that was properly assigned to it in the first place. Thus, as a matter of statutory interpretation, whereby we find the provisions cited above to be unambiguous, we refuse to re-write section 7361 and the applicable Philadelphia local rules so that jurisdiction would be divested upon the filing of a counterclaim asserting more than $50,000 damages. See Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 959 (Pa. 2001) ("[W]hen statutes have a bearing on the outcome of a case, we begin by analyzing the express words of the statutes. . . . When the statute is clear, we need go no further to discern the intent of the legislature.").
We emphasize that our disposition herein is premised in part on Philadelphia local rules. The result in other counties may vary depending on the applicable local rules. For example, in Bucks County, a case is placed on the Arbitration List only after a praecipe is filed with the prothonotary. Bucks Cty. Civil R. 1303(c). Similarly, in Lancaster County, an action is submitted to an arbitration panel when "[a] party or his attorney files with the Prothonotary, after the closing of all pleadings, a praecipe for reference, indicating that the case is at issue [for arbitration]." Lancaster Cty. Civ. R. 1301(C)(1) (emphasis added). Clearly, both of these local rules and section 7361 mandate that the parties consider the entire "amount in controversy" before filing a praecipe for compulsory arbitration, and that amount includes the damages sought in both the complaint and any counterclaim in existence at the time. Therefore, if a counterclaim is filed before the case is ordered on an arbitration list or scheduled for an arbitration hearing, the damages sought in that counterclaim may defeat arbitration jurisdiction. In sum, the controlling question is what the amount in controversy is at the time arbitration jurisdiction attaches.
¶ 13 Moreover, "[a]s a matter of statutory interpretation, although `one is admonished to listen attentively to what a statute says[;][o]ne must also listen attentively to what it does not say.'" Id. at 962 (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 536 (1947)). As noted above, and emphasized here, section 7361 and the applicable Philadelphia Civil Rules are silent on the issue of whether filing a counterclaim over the $50,000 limit would destroy arbitration jurisdiction. Thus, since we "must listen attentively to what [a statute] does not say," see id., we refuse to re-write section 7361 and the Philadelphia rules so that jurisdiction would be divested upon the filing of a counterclaim asserting more than $50,000 damages.
¶ 14 Notably, after Marlton filed its counterclaim, Half (or Marlton, for that matter) had the option of filing a petition to request that the case be transferred to the trial court:
(g) Transfer from Arbitration to Major List. A case filed as an Arbitration case may be certified as a major case only with Court approval. A Petition for Approval to Transfer from Arbitration to Day Forward must be filed with the Prothonotary. The Petition for Approval to Transfer will not be granted if it is made immediately before the Arbitration Hearing date and it appears that the requisite pleadings have not been filed.
Phila.Civ.R. 1303(g). Neither Half nor Marlton filed a Petition for Approval to Transfer from arbitration to the trial court at any time. Certainly Half had the option of doing this but, instead of filing a Petition for Approval to Transfer, Half filed an answer to Marlton's counterclaim and, in doing so, was necessarily aware of the amount of damages Marlton was claiming and the kind of claims Marlton was asserting. Still, Half did not file a Petition for Approval to Transfer and, thus, jurisdiction remained vested in the Arbitration Program as the matter was initially and properly referred to the Arbitration Program when Half filed the initial complaint. See 42 Pa.C.S. § 7361(b); Phila.Civ.R. 1301.
Effective July 26, 2004, this rule was revised to refer to a "Motion for Approval to Transfer" rather than a "Petition for Approval to Transfer."
¶ 15 Our holding comports with the public policy underlying compulsory arbitration. The purpose of compulsory arbitration is to relieve the overburdened trial court dockets that exist in some communities and provide for a quicker, easier, and more economical avenue for the disposition of cases. See Emporium Area Joint School Auth. v. Anundson Constr. Bldg. Supply Co., 166 A.2d 269, 270 (Pa. 1960); Pa.R.C.P. 1301-1314 (Preface, Explanatory Cmt. (1981)). See also Ice City, Inc. v. Insurance Co. of N. Am., 314 A.2d 236, 241 (Pa. 1974) ("It is beyond cavil that settlement of disputes by arbitration or appraisal is the approved public policy of this Commonwealth."); Pantoja v. Sprott, 721 A.2d 382, 384-85 (Pa.Super. 1998) (indicating that "compulsory arbitration system was adopted in order to alleviate the enormous case load of our trial courts" and that the overall objective of the system is to "expeditiously dispose of pending litigation"); Miller v. Miller, 620 A.2d 1161, 1163 (Pa.Super. 1993) (indicating that arbitration is favored because it allows the parties to resolve disputes outside of trial court). Our holding in the instant case is in accord with these stated policies.
¶ 16 Moreover, Half admits in its brief that "[i]t is well established that the amount claimed by the plaintiff is conclusive as to the jurisdiction of the tribunal." Half's brief at 13 (citing Baker v. Carter, 157 A. 211 (Pa.Super. 1931)). Similarly, Flynn v. Casa Di Bertacchi Corp., 674 A.2d 1099 (Pa.Super. 1996), involved a personal injury plaintiff who brought an action in arbitration, but the defendant failed to appear and the plaintiff obtained a default judgment. We determined that the arbitrators did not have jurisdiction because " [t]he complaint as filed, and upon which the prothonotary entered the default judgment, was clearly beyond the jurisdiction of the arbitration board." Id. at 1105 (emphasis added). Despite Half's argument to the contrary, Flynn does not support Half's position that we should include the counterclaim damages in this case to calculate the jurisdictional arbitration threshold.
¶ 17 Instead, Flynn supports our contention that the focus of determining compulsory arbitration jurisdiction in this case is on Half's complaint only. Indeed, if Half's complaint, i.e., the initial claim in the case, had asserted damages exceeding $50,000, then, consistent with Flynn, the Arbitration Program would have never had jurisdiction over the case in the first place. However, once arbitration jurisdiction was established properly by operation of the applicable Philadelphia rules at the time Half filed its complaint, arbitration jurisdiction was not thereafter lost or divested when Marlton filed its counterclaim.
¶ 18 In sum, and in the absence of any discernable legislative intent to the contrary, our holding is that the jurisdiction of the Arbitration Program in Philadelphia County shall be determined by the amount in controversy in existence at the time the case is assigned to compulsory arbitration, i.e., at the time jurisdiction became vested with the Arbitration Program. Moreover, since the filing of the counterclaim in the instant case did not destroy the subject matter jurisdiction of the Arbitration Program, and no one filed a Petition for Approval to Transfer, we further conclude, initially, that the trial court and Marlton followed the proper procedure applicable when Half failed to appear at the May 1 arbitration hearing.
This is not to say, however, that the trial court could not have considered the amount of damages asserted in a counterclaim when determining whether to grant or deny a Petition for Approval to Transfer. However, as noted, neither party in the instant case filed such a petition.
¶ 19 Our state rules of civil procedure provide as follows:
Rule 1303. Hearing. Notice
. . .
(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. If the court is to hear the matter, it should be heard on the same date as the scheduled arbitration hearing.
Pa.R.C.P. 1303(b). The trial court in the instant case proceeded pursuant to subsection (b)(2) above. Indeed, the civil cover sheet of Half's complaint was stamped with the statement outlined by subsection (a)(2):
(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."
Id. at 1303(a)(2). The Philadelphia Civil Rules provide, in pertinent part:
(2) Scheduling After Commencement of Action. In the event a case is scheduled for an Arbitration hearing after the commencement of the action, and the initial pleadings do not contain the statement authorized by Pa.R.C.P. No. 1303(a)(2), the case will nonetheless be subject thereto provided the Order or Notice scheduling such Arbitration hearing contains 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 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."
Phila.Civ.R. 1303(a)(2). The copy of Half's complaint in the certified record has the above-noted statement stamped on its face. We must assume that Half is cognizant of applicable local rules and, thus, is deemed to have been aware of this particular rule and the consequences of its non-appearance. See Schuylkill Navy v. Langbord, 728 A.2d 964, 967 (Pa.Super. 1999) ("If counsel chooses to accept a case and practice in a particular forum, then counsel must keep informed and master the local rules and procedures of that forum."). Thus, we conclude that the trial court proceeded properly by opting to hear the case when Half failed to appear at arbitration and the matter was transferred into the trial court.
¶ 20 We also conclude that the trial court had the authority to grant damages to Marlton in its counterclaim in an amount exceeding $50,000. The note to Pa.R.C.P. 1303 indicates that when a trial court opts to hear the matter,
the trial court may take action not available to the arbitrators, including the entry of a nonsuit if the plaintiff is not ready or a non pros if neither party is ready. If the defendant is not ready, it may hear the matter and enter a decision.
Pa.R.C.P. 1303 note (emphasis added). Thus, the amount of damages the trial court could grant was not circumscribed by the statute that confers jurisdiction on the Arbitration Program. The whole case was properly before the trial court when it was transferred out of arbitration due to Half's non-appearance. Thus, the court not only had the authority to grant any amount of damages to Marlton on its counterclaim, but it also had the authority to enter a judgment against Half on its complaint. Although this result may seem harsh to Half, we emphasize that Half, instead of just filing an answer to Marlton's counterclaim, had ample opportunity to invoke Phila.Civ.R. 1303(G) to petition the court for a transfer of the case out of arbitration, yet did not do so. This, in addition to all of the foregoing reasons, results in our conclusion that Half's first two issues in this appeal are without merit.,
The trial court entered a judgment of non pros against Half, but the note accompanying Pa.R.C.P. 1303 suggests that the trial court enter a nonsuit in the case of a plaintiff's failure to appear. However, the note also indicates that the trial court may take action not available to the arbitrators, and, indeed, Pa.R.C.P. 218 provides that if a case is called for trial and the plaintiff, without satisfactory excuse, is not ready, then the trial court may enter a non pros on its own motion. See Pa.R.C.P. 218(a).
Half mentions that Marlton demanded a jury trial on the face of its counterclaim. Half's brief at 13. However, this fact is inconsequential to our disposition because the mere demand for a jury trial, while the case is still validly under the jurisdiction of the Arbitration Program, is not effective to divest the Arbitration Program of its jurisdiction. Indeed, Half had no basis to proceed, as they did, on their own assumption that arbitration jurisdiction had been destroyed by Marlton's counterclaim.
We acknowledge Half's complaint about the conduct of the attorney who appeared at the arbitration/trial on behalf of Marlton. With regard to this issue, Half argued, inter alia, that when the case was transferred from arbitration to the trial court, Judge Joseph asked Marlton's attorney if he had tried to call Half's attorney after realizing that no one for Half would appear. Marlton's attorney indicated that he did not, and Judge Joseph noted, on the record, that this was "discourteous." N.T. Post Trial Motion, 5/29/03, at 10. We agree that Marlton's attorney was discourteous; however, that alone cannot change our disposition on the jurisdictional issue in this case. Nevertheless, we absolutely do not condone the lack of courtesy and professionalism demonstrated by Marlton's attorney in this case.
¶ 21 In its third issue, Half argues that the trial court improperly denied its post trial motions to vacate the judgment of non pros on its complaint and strike the judgment entered on Marlton's counterclaim. Half contends that it was not present at the May 1 arbitration hearing because it was unaware that it had been scheduled. Half contends that its initial counsel, an attorney based in Pittsburgh, received two copies of Half's complaint back from the prothonotary's office after filing, but neither of these returned copies were stamped with the arbitration date. See Half's brief at 20-21.
¶ 22 We first deal with the judgment of non pros against Half on its own complaint. Thus, we note that a "request to open a non pros judgment is based upon the equitable powers of the trial court, and such an exercise of power will not be disturbed on appeal unless an abuse of discretion is clearly evident." Walt Med. v. Electro-Nucleonics, 583 A.2d 492, 493 (Pa.Super. 1990) (citations and internal quotation marks omitted). We conclude initially that no "abuse of discretion is clearly evident" from the trial court's decision on this issue. See id:
¶ 23 Pennsylvania Rule of Civil Procedure 3051 governs relief from a judgment of non pros: Rule 3051. Relief from Judgment of Non Pros
Indeed, the note following Pa.R.C.P. 1303 references Pa.R.C.P. 3051 as addressing relief from non pros.
(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.
(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and
(3) there is a meritorious cause of action.
Pa.R.C.P. 3051. Additionally, "[a] party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse." Pa.R.C.P. 218(c).
¶ 24 In the instant case, the trial court concluded that Half had no satisfactory excuse for its non-appearance. The trial court opined as follows:
[Half's] excuse for failure to appear at arbitration is not satisfactory. Counsel for Robert Half argues that they did not have notice of the arbitration. However, the official copy of the Complaint on record with the Prothonotary is stamped with the appropriate notice, as is the copy served upon Marlton Technologies by Robert Half. Moreover, Robert Half also filed the matter as an arbitration case and, as their counsel is imputed with knowledge of the rules and procedures of Philadelphia County and how notification of arbitration is provided, should have inquired if the copy returned to them did not contain such notice. See Masthope Rapids Property Owners Council v. Ury, et al., . . . 687 A.2d 70, 72 ([Pa. Cmwlth.] 1996) [("It is the duty of the parties to ascertain the schedule of the court.")]. Although Robert Half argues that this was not deemed necessary as the filing of the Counterclaim took this case outside the jurisdiction and scope of arbitration, the Answer and Counterclaim were not filed until three (3) months after the Complaint. Therefore, for three (3) months Robert Half did believe the matter to be an arbitration matter, but did nothing to determine the date of the arbitration although they claim they did not receive notice. More importantly, as explained, Robert Half is incorrect in that the matter was still subject to arbitration in the absence of the filing of a [Petition for Approval to Transfer] pursuant to Philadelphia Rule of Civil Procedure 1303(g).
Trial Court Opinion (T.C.O.), 11/19/03, at 8-9. In Ttmar, Inc. v. Sulka, 586 A.2d 1372, 1373 (Pa.Super. 1991), we refused to "shift the duty [from a non-appearing party] to make sure they are personally aware of the date and time of trial to the trial court or opposing counsel." Indeed,
[c]ounsel is under a high duty of care to learn and familiarize himself with the local rules of all forums in which he chooses to practice law and to read the [applicable county's] Legal Journal for notice of the date and time of any . . . trials with which he is concerned. Failing to do so does not excuse counsel.
Id. at 1373-74. "[T]he local rules, administrative regulations and filing requirements of the Philadelphia County Court System are widely publicized to the Bar through bound volumes, continuing education, court memoranda and lectures, and are available in the . . . Court filing office." Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa.Super. 1999).
¶ 25 Thus, we must presume that Half was familiar with the Philadelphia Civil Rules; in particular, Phila.Civ.R. 215(A)(1) which states that "[a]ll cases which when filed are subject to compulsory arbitration under Philadelphia Civil Rule 1301 shall be assigned a hearing date and time upon commencement on the face of the initial pleading." Phila.Civ.R. 215(A)(1) (emphasis added). See also Phila.Civ.R. 1303(A)(1) ("The date, time and place of the Arbitration shall be entered on the Civil Cover Sheet or initial pleadings, and on all service copies. . . ."). Even if Half did not have actual notice of the arbitration date (which assertion is contested by Marlton), Half still should have inquired about the arbitration hearing date based on its knowledge of Phil.Civ.R. 215(A)(1) ( i.e., that the arbitration date is scheduled upon commencement of the case). In conclusion, and based on the trial court's reasoning, which is supported by the record, Half's third issue is without merit.
Marlton asserts that Half's own process server served a stamped copy of the complaint upon Marlton. See Marlton's brief at 24.
Indeed, Half's initial counsel from Pittsburgh admitted that he knew that the complaint was supposed to have a date stamp for the arbitration hearing. See N.T. Post Trial Motion Hearing, 5/29/03, at 35.
¶ 26 In its fourth and final issue, Half asserts that the evidence was insufficient to support a judgment against Half on Marlton's counterclaim. As this issue was not raised in Half's post trial motion, and, indeed, was raised for the first time in Half's statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), the issue is waived. See Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 444 (Pa.Super. 2003) (indicating that an issue was not properly preserved when it was raised for the first time in response to a Pa.R.A.P. 1925(b) order).
¶ 27 Half argues against waiver of this issue on the following basis:
Robert Half's post-trial motions . . . objected to the proceeding in its entirety, as Judge Joseph did not have jurisdiction to hold the "trial" at all. In other words, the post-trial motions challenged every single thing that happened on May 1, 2003, from the time Judge Joseph chose to have a trial. This issue was therefore subsumed within that argument. Half's brief at 27. We cannot agree with Half's argument on this issue. Pennsylvania Rule of Civil Procedure 227.1(b)(2) indicates that "post-trial relief may not be granted unless the grounds therefore are specified in the motion." As Half did not specify that it was challenging the sufficiency of the evidence to sustain judgment on Marlton's counterclaim, Half waived this issue.
¶ 28 For the foregoing reasons, we affirm the September 5, 2003 order that (1) entered a judgment of non pros against Half for failing to attend a scheduled arbitration hearing; and (2) entered a judgment against Half on the counterclaim filed by Marlton.
¶ 29 Judgment affirmed.