Roski v. Halfway House, Inc.

OLSZEWSKI, Judge: The Halfway House appeals from the judgment awarding Walter Roski’s estate $50,000 and delay damages. We find [564] that the trial court properly dismissed Halfway House’s post-trial motions; accordingly, we affirm. Walter Roski was shot in the elbow during the course of a robbery at the Halfway House, a bar. Roski sued the Halfway House, alleging that it was negligent in failing to protect its customers adequately. On November 4, 1987, the trial court, as factfinder, found that Halfway House was liable to Roski for $50,000 in damages for pain and suffering. On November 12, 1987, Halfway House’s counsel filed a post-trial motion and certified that the notes of testimony were ordered. Two months later, the attorney in charge of the case retired and moved to Florida, leaving no instructions regarding this case. The next docket entry in this case is Roski’s April, 1989 motion to dismiss the motion for post-trial relief. Roski alleged that Halfway House failed to order a transcript as required by Philadelphia Local Rule 240(c)(4) and failed to exercise due diligence in having the transcript prepared. The trial court found that the Halfway House’s counsel either failed to order the transcript or failed to exercise due diligence in having the transcript prepared. The trial court dismissed appellant's post-trial motion pursuant to Philadelphia Local Rule 240(c)(4). Philadelphia Local Rule 240(c)(4) provides; Counsel filing exceptions or post-trial motions shall insure that the notes of testimony, if required, are ordered from the court reporter and shall notify the Post-Trial Motion Clerk in writing when the notes have been ordered. In cases in which there is no dispute about the notes to be transcribed, counsel filing the exceptions or motions shall order the notes from the court reporter within five (5) days after the filing of the exceptions or motions and immediately so notify the Post-Trial Motion Clerk in writing.... Failure to order the notes of testimony or to notify the Post-Trial Motion Clerk that they have been ordered where it is certified that they are necessary shall result in [565] the imposition of sanctions including the dismissal of the exceptions or motions. The obvious purpose of Rule 240(c)(4) is to ensure that the notes of testimony are provided expeditiously so that the motion can be decided. See DeFazio v. Labe, 518 Pa. 390, 395, 543 A.2d 540, 545 (1988). Due to the conduct of Halfway House’s counsel, the transcript was not prepared promptly and this action was delayed for well over a year. Consequently, the dismissal sanction was exercised appropriately in this case. Our Supreme Court has held that a trial court may apply Rule 240(c)(4)’s sanctions when counsel fails to pay the deposit for a transcript, even though counsel has ordered the transcript. DeFazio, supra, 518 Pa. at 395, 543 A.2d at 545.1 The Supreme Court noted that counsel who does not pay the requisite deposit delays the preparation of the transcript, thereby thwarting the purpose of the rule. Accordingly, the Court approved the trial court’s finding that ordering a transcript without making a deposit does not constitute an “order” under the Rule. DeFazio, supra, 518 Pa. at 395, 543 A.2d at 545. The present case is substantially similar to DeFazio. There is no evidence that appellant’s counsel ever made a deposit. The evidence shows that the firm failed to exercise due diligence in ensuring that the transcript was prepared. The firm took no action regarding this case until appellee moved to dismiss the post-trial motion seventeen months after it was filed. Under the circumstances, we hold the trial court acted within its discretion in finding that appellant’s counsel did not “order” the transcript, and in dismissing appellant’s post-trial motions. Consequently, we affirm. The dissent points out that the transcript was provided before the trial court dismissed the post-trial motions. We do not find this fact relevant, nor do we find that appellant has “substantially complied” with the rule. The rule is [566] designed to ensure expeditious disposition of motions. Appellant’s conduct did not promote this goal, but actually thwarted it. Appellant delayed this proceeding for seventeen months, and produced the transcript only upon threat of dismissal. The fact that appellant managed to produce a transcript within two months of the motion to dismiss only proves that appellant could have produced the transcript expeditiously if counsel had acted with due diligence in the first place. The dissent also contends that the trial court imposed sanctions for a violation of ABA Rules of Professional Conduct. Although the trial court mentioned these rules, we find that the court did not base its decision upon them. The court did not punish appellant for attorney misconduct; it punished appellant for delay, as Local Rule 240(c)(4) requires. The trial court’s discussion of ethical rules is nothing more than dicta and is irrelevant to this appeal. Nor do we find that the trial court erred in failing to consider prejudice. The local rule mandates sanctions when a party fails to order a transcript; it does not require consideration of prejudice. Even if prejudice were an issue, we would find that a seventeen-month delay in consideration of post-trial motions is inherently prejudicial. Given our holding that the trial court properly dismissed the post-trial motions, we' need not address the merits of this appeal. Nevertheless, we note that we have reviewed appellant’s issues and find them meritless. Order dismissing post-trial motion is affirmed. Judgment affirmed. JOHNSON, J., files a dissenting opinion. Footnotes [1] Although the DeFazio court was divided on other issues, five of the six Supreme Court justices reviewing the case joined Justice Papadakos’ opinion regarding Rule 240(c)(4).