J. A25013/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CHERLENE GUDALEFSKY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DR. JOHN NIPPLE, PHYSICIAN WITH : No. 442 MDA 2016
COMMUNITY GENERAL OSTEOPATHIC :
HOSPITAL :
Appeal from the Order Entered February 17, 2016,
in the Court of Common Pleas of Dauphin County
Civil Division at No. 2013-CV-10101-MM
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 24, 2017
Cherlene Gudalefsky, pro se, appeals the order of the Court of
Common Pleas of Dauphin County in which the trial court declined to
entertain appellant’s motion to strike judgment because the case was closed.
The facts, as recounted by this court in a previous related
memorandum opinion, are as follows:
In November 2013, Appellant, proceeding
pro se, initiated this action by writ of summons
against Appellee. Appellant filed a complaint in
March 2014, alleging medical malpractice resulting in
the death of her mother, Ms. Shirley Homer.
Appellant did not file a certificate of merit with her
complaint. Accordingly, Appellee filed a notice of his
intention to enter a judgment of non pros.
* Former Justice specially assigned to the Superior Court.
J. A25013/16
In April 2014, Appellant filed a document,
entitled “Certificate of Qualified Expert.” The
document appears to be a summary report authored
by Dr. Terrance L. Baker, who suggests that Appellee
breached the applicable standard of care during the
course of his treatment of Appellant’s mother.
In May 2014, Appellee filed a praecipe for
entry of judgment of non pros on the ground that
Appellant had not filed a proper certificate of merit.
Thereupon, the Dauphin County Prothonotary
entered judgment in Appellee’s favor.
In June 2014, Appellant filed a motion, denied
by the trial court for failing to comply with local
rules, and thereafter, an amended motion, asserting
that she had filed a suitable substitute for a
certificate of merit and requesting that the trial court
reopen her case. In September 2014, the trial court
denied Appellant’s prayer for relief. Appellant timely
appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive
opinion.
Gudalefsky v. Nipple, A.3d (Pa.Super. 2015) (unpublished
memorandum at 1-3), petition for allowance of appeal denied, 130 A.3d
1290 (Pa. 2015) (footnote omitted).
This court affirmed the determination that appellant failed to file a
certificate of merit (“COM”) in the form required by Pennsylvania Rule of
Civil Procedure 1042.10 and determined that the trial court did not abuse its
discretion when it denied appellant’s motion to open judgment of non pros.
On December 29, 2015, the Supreme Court of Pennsylvania denied
appellant’s petition for allowance of appeal. Id.
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J. A25013/16
On February 12, 2016, appellant petitioned to strike judgment and
alleged that she filed the required COM on April 28, 2014.
By order dated February 17, 2016, the trial court stated that the
petition “will not be entertained as this case is closed. Judgment of
non pros was entered on May 29, 2014, and plaintiff’s appeals to this court
regarding said judgment were denied.” (Order, 2/17/16 at 1.) The trial
court explained its decision:
It is well-settled law that all legal pleadings
and civil actions must be done in accordance with
the Pennsylvania Rules of Civil Procedure. In
Dauphin County, a pleading will not be entertained
when a litigant fails to follow either the Pennsylvania
Rules of Civil Procedure or the Dauphin County Local
Rules of Court. In the instant matter, Appellant
attempted to file a pleading after a judgment of
non pros had been entered, her petition to open
judgment of non pros was denied, and the Superior
Court affirmed the denial and the judgment of
non pros.
Pennsylvania Rule of Civil Procedure 3051 sets
forth the procedure for requesting relief from a
judgment of non pros. It states that relief must be
sought by petition, and “[a]ll grounds for relief,
whether to strike off the judgment or to open it,
must be asserted in a single petition.” In the instant
case, Appellant filed a petition to open judgment in
2014, which was ultimately denied. Following the
disposition of the appeal from that decision,
Appellant filed a petition to strike judgment in an
attempt to get a second bite of the appellant [sic].
According to the rule, Appellant only gets one chance
for relief from a judgment of non pros -- that was
done in 2014. Appellant’s Petition to Strike
Judgment was properly non-entertained.
Trial court opinion, 3/28/16 at 2.
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J. A25013/16
On appeal to this court, appellant contends that the judgment of
non pros must be stricken because appellant filed a motion requesting
consideration involving both medical malpractice and wrongful death
date-stamped April 28, 2014, which included a [COM].
Our standard of review from the denial of a petition
to strike a judgment is limited to whether the trial
court manifestly abused its discretion or committed
an error of law. A petition to strike a judgment will
not be granted unless a fatal defect in the judgment
appears on the face of the record. Matters outside of
the record will not be considered, and if the record is
self-sustaining, the judgment will not be stricken.
Bell v. Kater, 943 A.2d 293, 295 n.1 (Pa.Super. 2008) (citation omitted).
As the trial court stated, Pennsylvania Rule of Civil Procedure 3051(a)
provides, “[r]elief 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.” Pa.R.C.P. 3051(a). The trial court properly
declined to entertain this petition to strike because appellant previously filed
a motion which the trial court considered a motion to open judgment of
non pros. Appellant’s motion to strike did not comply with Rule 3051(a) of
the Pennsylvania Rules of Civil Procedure because she did not bring her
requests for relief in a single petition.1
Order affirmed.
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J. A25013/16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
1
Even if the trial court had entertained the motion, appellant would not
prevail as she asserts that she did file the required COM. The trial court and
this court already held that she did not.
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