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A secretary out sick is a plausible excuse for why a Philadelphia attorney failed to appear in court on one-hour’s notice, the Superior Court has ruled. According to the three-judge panel’s unpublished memorandum opinion in Thompson v. Houston, the denial of lawyer Brandon G. Johnson’s post-trial motions concerning his failure to appear in Philadelphia Common Pleas court on Nov. 19, 2002, should be reversed, and his client, Carolann Houston, should be given her day in court. The opinion also noted the difficulties in complying with Philadelphia’s one-hour notice rule, which requires litigants in appeals of arbitrations to be on-call for a one-month period and come to court within an hour of being telephoned. “After careful review of counsel’s excuse in light of the existing circumstances,” the opinion stated, “including the potential impracticalities associated with adhering to a requirement to appear in court for trial on one-hour’s notice, we conclude that the order denying relief must be reversed.” The panel consisted of Judges Michael T. Joyce, Maureen Lally-Green and Senior Judge James R. Cavanaugh. Houston had sought a common pleas trial to appeal the findings of an arbitration panel, which had awarded $30,000 to Hermine Thompson, her opponent in a personal injury case. Thompson sued Houston in November 1999 for injuries she received after tripping over a pipe sticking out of the sidewalk in front of Houston’s Northeast Philadelphia home, according to the opinion. The arbitration panel ultimately awarded Thompson $30,000. Houston and Thompson’s case was slated for trial last November, the opinion said. On Nov. 19, 2002, court officials called both parties at noon to tell them that their trial would begin at 2 p.m. Thompson appeared on time with her attorney, Louis Ruch of Ruch & Shipon in Philadelphia. The court left “several” messages on Johnson’s answering machine, but neither he nor Houston appeared in court at 2 p.m., the opinion said. The court reinstated the arbitration award when Johnson and Houston failed to show. Johnson filed post-trial motions for reconsideration and removal of non pros, claiming that he had missed the court’s one-hour notice because his secretary had phoned in sick to work without his knowing it and that he had spent the morning of the 19th handling another matter at the arbitration center, according to the opinion. He did not get the court’s messages, he said, until later in the day. The trial court denied Johnson’s motions, arguing that he could have made other communication provisions, further nothing that Thompson and her attorney had been able to appear on time. But the Superior Court panel appeared to sympathize with the plight of Johnson and other busy attorneys. “We begin by noting that requiring a party to be ‘on-call’ for a period of thirty days, i.e., to be ready to begin trial on one-hour’s notice, is a somewhat demanding rule which, as a practical matter, is perhaps unrealistic,” the opinion read. “It is completely understandable, given the current workload demands in our profession, that a party’s adherence to such a short-notice requirement will at times be difficult, if not impossible.” The opinion said that a court that excuses an attorney’s failure to appear must consider whether the attorney’s absence was unintentional; whether it was illustrative of a pattern of failing to appear; whether it prejudiced the other party’s case; and other conditions. The opinion noted that Thompson had not raised any claims of prejudice due to Johnson’s absence, and that it had not been alleged that Johnson’s failure to appear on Nov. 19 was part of a pattern of such behavior. The panel found in Johnson’s favor, suggesting that the one-hour notice rule has the potential to jeopardize a litigant’s rights. “This court has repeatedly held that a court’s legitimate interest in controlling its docket should not unnecessarily infringe upon a litigant’s right to trial,” the opinion stated. Civil trial division Supervising Judge William J. Manfredi said that the one-hour notice system is for arbitration appeals only and has been in place for approximately a decade. Attorneys on call are obliged to appear within an hour, he said, but not necessarily for the trial itself, although it is always preferable to begin the trial that day. He said that lawyers are allowed to provide the court with dates they know they will not be available and that the number of complaints concerning the system has not been “particularly significant.” “We’re not in the business of trying to keep people out of court,” Manfredi said. Ruch said that, in his experience, the court staff has always been diligent in making sure that lawyers get the message to appear, but he commented that the one-hour notice does have its drawbacks. “It’s a tough thing to deal with because you’re on one hour’s notice for a substantial period of time,” Ruch said, “and, at the same time, you’re trying to conduct your practice.” Johnson, of the Law Offices of Francis R. Gartner in Philadelphia, said that ever since the Thompsoncase, he has left on his voice machine two numbers where he can be reached. He added that the incident even inspired one attorney in his office to purchase a pager. “The one-hour call rule is particularly burdensome upon the parties and upon counsel,” Johnson said. “I hope the criticism by the Superior Court will make the [Philadelphia Common Pleas] court rethink it, if not abandon it altogether.” (Copies of the seven-page opinion inThompson v. Houston , PICS NO. 03-1796, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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