Not knowing how to use e-mail is not a valid excuse for missing a mandatory arbitration over attorney fees, a Philadelphia judge ruled last month.
Philadelphia Common Pleas Judge Sandra Mazer Moss, writing in an opinion in Knox v. Patterson Jan. 11, said that Richard H. Knox, a Philadelphia attorney, was not entitled to have a third arbitration scheduled over his claim that a client owes him $35,000 in fees.
All the parties missed the first arbitration scheduled for Sept. 15, 2009, and Knox missed the second arbitration because of a scheduling error, Moss said. Knox missed the next arbitration date on May 24, 2010, because he did not receive the electronic notice of the arbitration. E-filing, including court notices about court dates, has been mandatory in Philadelphia Common Pleas Court’s civil branch for over two years.
Moss originally granted Knox’s petition to strike or open the judgment of non pros because of the second missed arbitration, but Moss reversed herself following a motion of reconsideration by the defendant.
Knox said that he had not checked his e-mail for four months while his wife, who has been Knox’s legal secretary for 36 years and handled all of his office’s electronic work, was off work because of an injury, Moss said.
“Digging deeper, Knox’s negligence is even more apparent,” Moss said. “First, Knox … knew his wife (i.e. secretary) was temporarily disabled and could not check electronic notices. Knox, a very experienced attorney with an active caseload, knowing he was computer illiterate, should have ensured any important communication was discovered during her absence. First, he could have learned Philadelphia’s e-filing notification system. Second, he could have hired a temporary secretary to fill the gap. Knox, however, did nothing. He just let his electronic communications pile up until his wife returned.”
Pennsylvania judges will open a petition to open or strike a judgment if the petition to open or strike the judgment has been promptly filed, a meritorious defense can be shown and the failure to appear can be excused, Moss said.
Moss said Knox’s petition to reopen the second judgment of non pros was not filed within 10 days of the judgment and Knox’s inability to check e-mail was not a valid excuse for his failure to appear.
The judge said a telephone call to her chambers might have avoided the whole predicament.
“At the very least, an individual embarrassed about missing an earlier arbitration date and given a second chance should have followed through on his promise to be ‘more careful’ by taking extra precautions to appear at a second arbitration,” Moss said.
Knox said in an interview that it was not fair to have $35,000 of legal work lost to him because he had missed two of the arbitration dates.
Knox said he missed the first arbitration because he neglected to write down the date in his calendar, and he said he missed the second arbitration because he personally did not know how to retrieve his e-mail and his wife was out of the office with a broken arm.
The case, which is pending in front of the Superior Court because of Knox’s appeal, is scheduled for mediation later this month, Knox said. He said he hopes the mediation is successful.
Knox was retained to deal with the transfer of money from a decedent’s estate, Moss said.
Defendant Bishop Anthonee Patterson’s attorney, Willie Pollins, of the Pollins Law Firm in Philadelphia, did not respond to a request for comment.
Moss, who presides over appeals from arbitrations in Philadelphia Common Pleas Court as the coordinating judge of the First Judicial District’s Complex Litigation Center, has issued orders with the goal of making the arbitration process more effective. In 2009, Moss instituted sanctions for attorneys who do not provide memorandums before settlement conferences in appeals from arbitrations.
(Copies of the six-page opinion in Knox v. Patterson , PICS No. 11-0256, are available from Pennsylvania Law Weekly . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. Tuesday.)   •