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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN D. DAUTRICH, IN HER IN THE SUPERIOR COURT OF
CAPACITY AS ADMINISTRATRIX OF THE PENNSYLVANIA
ESTATE OF SHANNON K. DAUTRICH
Appellant
v.
READING HOSPITAL AND MEDICAL
CENTER AND DR. DOE
Appellee No. 1467 MDA 2014
Appeal from the Judgment Entered on August 1, 2014
In the Court of Common Pleas of Berks County
Civil Division at No.: 14-3418
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 18, 2015
Kathleen Dautrich, Esq., appearing as administratrix of the estate of
Shannon Dautrich, appeals the trial court’s August 1, 2014 entry of a
judgment of non-pros. In the trial court, she failed in her effort to file her
petition to open the judgment electronically, as permitted but not required
by local rule. She contends that defects in the notice furnished to her and
what amounts to a clerical error or overly technical decision by the
prothonotary, as well as her lack of familiarity with the then-newly-
implemented electronic filing system, conspired to prevent her from filing
the petition in a fashion that was acceptable to the trial court. She seeks a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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remand to enable her to file a technically compliant petition to open nunc
pro tunc. We quash Dautrich’s appeal and remand.
The trial court has provided the following brief procedural history of
the instant matter:
On March 3, 2014[, Dautrich] filed a Praecipe for Writ of
Summons against [Reading Hospital and Medical Center and Dr.
Doe (hereinafter, “Reading Hospital”)] for a medical malpractice
action. On April 24, 2014[, Dautrich] reissued the writ. On May
12, 2014[, Reading Hospital] issued a rule to file a complaint.
On May 29, 2014[, Dautrich] filed a complaint. On June 30,
2014[,Reading Hospital] file[d] a Notice of Intention to Enter
Judgment of Non Pros on the [p]rofessional [l]iability [c]laim for
failure to file a certificate of merit as required by
Pa.R.C.P. 1042.3. Said notice was served by certified and
ordinary mail to [Dautrich] at 530 Court Street, 2nd floor,
Reading, PA 196012, the same address [Dautrich] filed with the
[p]rothonotary. On August 1, 2014[, Reading Hospital] filed a
Praecipe for Entry of Judgment of Non Pros Pursuant to Rule
1042.7 and served the same on [Dautrich] by regular mail as
evidenced by the [c]ertificate of [s]ervice. On August 1, 2014[,]
the [p]rothonotary, pursuant to Pa.R.C.P. 236 entered a
judgment of non pros. On September 2, 2014[, Dautrich] filed a
[n]otice of [a]ppeal to the Superior Court. On September 9,
2014[, the trial court] directed [Dautrich] to file a [concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b)].
Trial Court Opinion, 1/13/2015, at 1-2.
Conspicuously absent from this account of the procedural history is
any mention of the petition to open that furnishes the subject of this appeal.
That is a consequence of the fact that none was filed as of the date that
Dautrich filed her notice of appeal, nor does any such filing appear on the
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trial court docket as of June 2, 2015. Nonetheless, we must review
Dautrich’s account of those events that are not reflected in the docket.
As Dautrich correctly notes, although the judgment of non pros was
entered of record on August 1, 2014, the requisite Rule 236 notice of the
judgment was not served upon the parties until August 12, 2014. Dautrich
avers that she attempted to file a petition to open the judgment
electronically on August 28, 2014. She filed the instant notice of appeal two
business days later on September 2, 2014. On September 3, 2014, three
business days after she attempted to file her petition to open, the
prothonotary notified her that her electronically-filed petition was defective
because it lacked an acceptable signature.
On December 2, 2014, this Court entered a rule directing Dautrich to
show cause within fourteen days why her appeal should not be dismissed.
Therein, we observed that no direct appeal will lie from a judgment of non
pros. Rather, under Pa.R.C.P. 3051, the subject of a non pros judgment
must file a petition to open the judgment in the trial court to enable
appellate review. An appeal will lie only from a trial court’s denial of a
petition to open. See Rule to Show Cause, 8/1/2014, at 1 (citing Sahutsky
v. H.H. Knoebel Sons, 782 A.2d 996 (Pa. 2001); Madrid v. Alpine
Mountain Corp., 24 A.3d 380 (Pa. Super. 2011)).
On December 17, 2014, Dautrich filed her response, which was
untimely by one day. Therein, Dautrich raised the issue of her vain attempt
to file a petition to open or strike on August 28, 2014, and attached
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documentation to support her account. By order entered on January 8,
2015, this Court dismissed the rule, but referred the issue to this panel
without deciding whether the non pros judgment is appealable under the
circumstances of this case.
We need not be unsympathetic to Dautrich’s plight to conclude that we
may not consider the merits of her appeal in this posture:
“A request to open a judgment of non pros, like the opening of a
default judgment, is in the nature of an appeal to the equitable
powers of the court and, in order for the judgment of non pros to
be opened, three elements must coalesce: 1) the petition to
open must be promptly filed; 2) the default or delay must be
reasonably explained or excused; and 3) facts must be shown to
exist which support a cause of action.” Jung v. St. Paul's
Parish, 560 A.2d 1356, 1358 (Pa. 1989); Pa.R.C.P. 3051. A
petition under Rule 3051 is the only means by which relief from
a judgment of non pros may be sought. See Pa.R.C.P. 3051,
Cmt. Any appeal related to a judgment of non pros lies not from
the judgment itself, but from the denial of a petition to open or
strike. Id.; Stephens v. Messick, 799 A.2d 793, 798
(Pa. Super. 2002). Finally, failure to file a timely or rule-
compliant petition to open operates as a waiver of any right to
address issues concerning the underlying judgment of non pros.
Id. at 797, 800.
A trial court’s decision to deny a petition to open or strike a
judgment of non pros is scrutinized on the abuse of discretion
standard of appellate review. Parkway Corp. v. Margolis
Edelstein, 861 A.2d 264, 265 (Pa. Super. 2004).
Madrid, 24 A.3d at 381-82 (citations modified).
That Dautrich attempted to file such a petition does not change the
fact that she failed. That being said, it does not appear to us that Dautrich
is without any avenue by which to pursue relief in the wake of this appeal.
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As she notes, the time period within which a petition to open must be filed is
not absolute or impervious to equitable considerations.
In evaluating whether the petition to open judgment has been
promptly filed, “[the c]ourt does not employ a bright[-]line
test . . . . [The court focuses] on two factors: (1) the length of
the delay between discovery of the entry of a default judgment
[and the filing of the petition], and (2) the reason for the delay.”
Allegheny Hydro No. 1 v. Amer. Line Builders, Inc.,
722 A.2d 189, 193 (quoting Quatrochi v. Gaiters, 380 A.2d
404, 407 (Pa. Super. 1977)).
Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa. Super. 2000) (citations
modified).
While Dautrich’s failure to file her petition to open the judgment may
be her own doing, the trial court retains broad discretion to review the
reasons for the delay with an eye toward equity. Indeed, insofar as her
arguments before this Court fundamentally appeal to this Court’s sense of
equity, they are precisely the arguments she may raise before the trial court
on remand as a basis for that court to forgive the delay. But we will not
impinge upon the trial court’s discretion in the first instance. Thus, while
Dautrich is not yet entirely out of court, she is out of this Court. Because
the trial court has not entered a disposition that we may review at this
juncture, we have no choice but to quash this appeal and remand.
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Appeal quashed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2015
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