J-S22043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HENRY MILLER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MATTHEW L. KURZWEG, KATHIE P.
MCBRIDE, AND JANICE MILLER
Appellees No. 1992 WDA 2014
Appeal from the Order Entered July 23, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-04-000411
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 18, 2015
Henry Miller appeals from the order entered in the Court of Common
Pleas of Allegheny County on July 23, 2014, granting Appellees’ motion for
judgment of non pros. We affirm.
The underlying events of this case began in 1997, when Janice Miller
retained Henry Miller as counsel to pursue a personal injury case.1 In early
2002, Ms. Miller discharged Attorney Miller, alleging that he was not
diligently prosecuting her case and that she could not reach him by
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*
Retired Senior Judge assigned to the Superior Court. Judge Strassburger
did not participate in the consideration or decision of this case.
1
Henry Miller and Janice Miller are not related. We will refer to Henry Miller
as “Attorney Miller,” and to Janice Miller as “Ms. Miller.”
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telephone or at his office. Shortly thereafter, Ms. Miller retained Matthew J.
Kurzweg as counsel to pursue her personal injury case.
Ms. Miller’s case was ultimately settled in September 2003, at which
time Attorney Miller wrote to Kurzweg seeking “an equitable division of the
fee.” In October 2003, Kurzweg’s counsel requested that Attorney Miller
provide a copy of his fee agreement with Ms. Miller. He failed to do so. In
January 2004, Attorney Miller filed a praecipe for writ of summons against
Ms. Miller, Kurzweg, and Kathie McBride, Attorney Miller’s former secretary.2
However, it was not until July 2012 that Attorney Miller finally filed a
complaint against the defendants. Attorney Miller took no other action in the
eight years from 2004 to 2012. McBride passed away in August 2008.
On January 25, 2013, defendants filed a petition for judgment of non
pros, and on July 23, 2013, the trial court granted the petition and dismissed
all but one of Attorney Miller’s claims.3 Attorney Miller moved for
reconsideration of the judgment on August 16, 2013, which the trial court
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2
Attorney Miller alleged that McBride had conspired with Ms. Miller and
Kurzweg to cause Ms. Miller to discharge Attorney Miller and retain Kurzweg.
3
By Order dated April 22, 2014, this Court granted Kurzweg’s petition for
review after the trial court overruled Kurzweg’s preliminary objections to
Attorney Miller’s amended complaint. Upon review, this Court reversed the
order of the trial court overruling Kurzweg’s objections, resulting in the
dismissal of the sole remaining count in Attorney Miller’s amended
complaint. Kurzweg v. Miller, 113 A.3d 344 (Pa. Super. 2014)
(unpublished memorandum).
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denied on September 9, 2013. This timely appeal followed, in which
Attorney Miller raises the following issues for our review:4
1. Whether the court below had a factual basis on record upon
which to support its ruling on counts V and VI of the plaintiff’s
complaint[?]
2. Whether the court below properly applied the law of quantum
meruit/unjust enrichment in its ruling on counts V and VI of the
plaintiff’s complaint[?]
3. Whether the court below erred in speculating as to the
potential testimony of Kathie McBride and holding that Janice
Miller suffered prejudice from the death of Kathie McBride[?]
4. Whether Janice Miller suffered actual, substantial prejudice
due to the death of Kathie McBride[?]
5. Whether Henry Miller was responsive to Janice Miller and
diligently prosecuted her case[?]
Appellant’s Brief, at 2.
Prior to addressing Attorney Miller’s substantive claims, we must first
determine whether Attorney Miller has properly preserved his claims for
appellate review.
Prior to the adoption of Rule of Civil Procedure 3051, a party seeking
relief from a judgment of non pros could file either a petition to open or an
appeal to this Court. See Valley Peat & Humus v. Sunnylands, Inc., 581
A.2d 193 (Pa. Super. 1990) (en banc). In response to this Court’s decision
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4
Attorney Miller’s appellate claims relate solely to counts V and VI of his
amended complaint. He has abandoned the remaining counts.
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in Valley Peat, the Supreme Court in 1991 promulgated Rule 3051, which
provides, in relevant part:
Rule 3051. Relief From Judgment of 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.
...
(c) If the relief sought includes the opening of the judgment of
non pros for inactivity, the petition shall allege facts showing
that
(1) the petition is timely filed,
(2) there is a meritorious cause of action, and
(3) the record of the proceedings granting the judgment of
non pros does not support a finding that the following
requirements for entry of a judgment of non pros for inactivity
have been satisfied:
(i) there has been a lack of due diligence on the part of the
plaintiff for failure to proceed with reasonable promptitude,
(ii) the plaintiff has failed to show a compelling reason for the
delay, and
(iii) the delay has caused actual prejudice to the defendant.
Pa.R.C.P. 30551(a).
Rule 3051 was adopted to “eliminate[] the choice and establish[] a
uniform procedure when relief is sought from a judgment of non pros.”
Pa.R.C.P. 3051, comment. “Requiring a petition to open or strike a
judgment of non pros ensures that the trial court will have an opportunity to
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review the matter in the first instance.” Krell v. Silver, 817 A.2d 1097,
1100 (Pa. Super. 2003). Our Supreme Court has held that the consequence
of failing to abide by this rule is the waiver of all claims regarding the entry
of judgment of non pros ordered by the lower court. Sahutsky v. H.H.
Knoebel Sons, 782 A.2d 996, 1000 (Pa. 2001).
Here, Attorney Miller brought his appeal without first filing a petition to
open the judgment of non pros with the trial court. Although he filed a
motion for reconsideration of the judgment of non pros, the motion did not
contain the averments, with supporting facts, required under Rule 3051.
Rather, Attorney Miller merely challenged the veracity of statements
contained in Ms. Miller’s affidavit and asserted that McBride’s testimony
would not have been relevant. Accordingly, because Attorney Miller failed to
file a proper petition to open pursuant to Rule 3051, he did not preserve any
issues for appeal and, therefore, his claims are waived.
Order affirmed.
PANELLA, J., joins the majority.
STRASSBURGER, J., did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 8/18/2015
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