J-S53018-19
2020 PA Super 55
MADELINE C. CARDONA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
CECIL BUCHANAN, THE DOMINION
GROUP, INC. AND JOHN DOE
Appellees No. 1478 EDA 2019
Appeal from the Order Entered April 18, 2019
In the Court of Common Pleas of Monroe County
Civil Division at No: 10007 CV 2007
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
OPINION BY STABILE, J.: FILED MARCH 09, 2020
Appellant Madeline C. Cardona appeals from an order granting the
motion of Appellee Cecil Buchanan for judgment of non pros in this personal
injury action. We affirm.
On November 8, 2007, Appellant filed a writ of summons against the
Appellees captioned above. On November 20, 2009, Appellant filed a
complaint seeking damages for injuries that she allegedly suffered on
December 19, 2005 when she slipped and fell in a parking lot owned by
Appellee, The Dominion Group, Inc. (“Dominion”).
On October 10, 2011, the parties took Appellant’s deposition. On July
26, 2012, counsel for Appellant, Dominion and 196 Plaza1 entered a stipulation
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1 By order entered on November 3, 2010, 196 Plaza was joined as an
additional defendant.
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to discontinue Appellant’s action against Dominion. On the same date, the
trial court entered an order approving the stipulation and dismissing the action
with prejudice against Dominion. On March 28, 2014, the parties took
Appellee’s deposition.
The next docket activity took place four years later, on October 4, 2018,
when Appellant’s counsel listed the case for arbitration. On November 21,
2018, Appellee filed a motion to dismiss the action against him for lack of
prosecution.2 On December 5, 2018, Appellant filed an answer to Appellee’s
motion to dismiss. On April 9, 2019, the court held an evidentiary hearing on
the motion to dismiss. In an order docketed on April 19, 2019, the trial court
granted Appellee’s motion to dismiss for lack of prosecution3 and dismissed
the action with prejudice.
On May 14, 2019, without first filing a petition to open judgment,
Appellant appealed to this Court. Appellant filed a concise statement of
matters complained of on appeal which raised a single issue: “Whether the
trial court failed to apply the correct standard to the evidence presented by
[Appellee] in support of his motion to dismiss, as required by Pennsylvania
law at the hearing concerning that motion on April 8, 2019, and thus
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2Appellee claims in his brief that he filed this motion following receipt of a
notice “out of the blue” listing this case for arbitration. Appellee’s Brief at 3.
3 Courts treat the terms “dismissal for lack of prosecution and “judgment of
non pros” synonymously. See, e.g., Madrid v. Alpine Mountain Corp., 24
A.3d 380, 381-82 (Pa. Super. 2011). This opinion refers to the trial court’s
order as a judgment of non pros.
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improperly dismissed Plaintiff's claim with prejudice?” On June 21, 2019, the
trial court filed a Pa.R.A.P. 1925 opinion reasoning that Appellant waived this
issue by failing to file a petition to open judgment following the entry of
judgment of non pros.
Appellant raises a single issue in this appeal: “Whether the Trial Court
misunderstood the motion presented and applied the wrong standards to it,
allowing a Motion to Dismiss, but treating it as a Motion for Judgment of non
pros, and did the Trial Court misunderstand the standards for a judgment of
non pros?” Appellant’s Brief at 4.
Appellee’s brief does not mention the trial court’s rationale that
Appellant waived this issue by failing to file a petition to open judgment.
Instead, Appellee only argues that the trial court properly dismissed this action
due to prejudice caused by Appellant’s delay in prosecuting the case.
Appellee’s Brief at 12. Despite Appellee’s omission, we have the authority to
affirm the order of dismissal on any ground. Wilson v. Plumstead Tp.
Zoning Hearing Bd., 936 A.2d 1061, 1065 n.3 (Pa. 2007) (“[T]his Court may
affirm on any ground”). We agree with the trial court’s opinion because we
find it consistent with our Supreme Court’s analysis in Sahutsky v. H.H.
Knoebel Sons, 782 A.2d 996 (Pa. 2001). We affirm for the reason that
Appellant waived her objection to the order of dismissal by failing to file a
petition to open.
Pennsylvania Rule of Civil Procedure 3051 provides:
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(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.
(b) Except as provided in subdivision (c), if the relief sought
includes the opening of the judgment, the petition shall allege
facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse for the
conduct that gave rise to the entry of judgment of non pros, and
(3) there is a meritorious cause of action.
(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.Civ.P. 3051.
The Explanatory Comment to Rule 3051 observes that prior to the rule’s
January 1, 1992 effective date, a party seeking review of a judgment of non
pros could proceed in two ways: either petition the trial court to open the
judgment or seek appellate review of the judgment. Rule 3051, however,
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mandates that the plaintiff file a petition to open before appealing, even when
the trial court held a hearing before entering judgment of non pros. The
Explanatory Comment emphasizes this point, stating:
The rule adopts a uniform procedure although there are different
types of judgments of non pros. . . . The rule will apply in all cases
in which relief from a judgment of non pros is sought, whether the
judgment has been entered by praecipe as of right or by the court
following a hearing. Where the court has not participated in the
entry of judgment, the rule will provide a procedure for court
involvement and the making of a record which an appellate court
will be able to review. Where the court has entered a judgment
of non pros following a hearing, the rule will provide the court with
an opportunity to review its prior decision. However, if the court
is certain of its prior decision, it will be able to quickly dispose of
the matter since the parties have already been heard on the
issues.
Pa.R.Civ.P. 3051, Explanatory Comment--1991.4 Since petitions to open
judgments of non pros are mandatory, “[a]ny 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.” Bartolomeo v. Marshall, 69 A.3d 610, 613-14 (Pa. Super.
2013).
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4 The Supreme Court has cautioned that explanatory comments are non-
binding “since [they] have not been officially adopted or promulgated by this
Court, nor do they constitute part of the rule. However, they indicate the
spirit and motivation behind the drafting of the rule, and they serve as
guidelines for understanding the purpose for which the rule was drafted.” In
Re Estate of Plance, 175 A.3d 249, 270 n.13 (Pa. 2017) (citing
Laudenberger v. Port Auth. of Allegheny Cty., 436 A.2d 147, 151 (Pa.
1981)). As discussed below, however, the Supreme Court cited Rule 3051’s
Explanatory Comment with approval in Sahutsky, a decision highly relevant
to this appeal. Since the Supreme Court has found Rule 3051’s Explanatory
Comment persuasive, we do so as well.
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In circumstances analogous to the present case, the Supreme Court held
that a plaintiff waived all issues by failing to file a Rule 3051 petition to open
before taking an appeal. Sahutsky, supra. The plaintiff in Sahutsky filed a
personal injury action against an amusement park alleging that she suffered
injuries during an amusement park ride. For almost three years thereafter,
there was no docket activity. The defendant filed a motion for judgment of
non pros, and the trial court granted the motion and dismissed the action with
prejudice. The plaintiff appealed to the Superior Court without first filing a
petition to open in the trial court. The Supreme Court held that the plaintiff
waived all issues on appeal by failing to file a petition to open. Id. at 997,
1000-01.
The Court explained that
[Rule 3051’s] mandatory phrasings that relief from a non pros
“shall be sought by petition” and “must be asserted in a single
petition” clearly connote a requirement that parties file a petition
with the trial court in the first instance. The Comment . . .
corroborates that [Rule 3051] applies to all judgments of non
pros.
...
The reason for requiring that the petition be directed to the trial
court initially is both obvious and salutary: it ensures that the
trial court, which is in the best position to rule on the matter in
the first instance, shall have an opportunity to do so. Such an
approach will avoid unnecessary appeals, thereby assuring judicial
economy, and will provide a better record for review in those cases
where the question is close enough to warrant an appeal.
Id. at 999-1000 (emphasis in original).
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Based on the rule’s “clear and unambiguous” mandate to file a petition
to open in the trial court, the Court held that “[the plaintiff’s] failure to file a
Rule 3051 petition operates as a waiver of any claims of error concerning the
judgment of non pros[.]” Id. at 1000.
Sahutsky remains good law. While the Supreme Court amended Rule
3051 subsequent to Sahutsky, the amendment did not in any way overrule
Sahutsky. The Court amended Rule 3051 to add subsection (c), a provision
designed to “clarify the requirements for opening a judgment of non pros
entered for inactivity.” Pa.R.Civ.P. 3051, Explanatory Comment—2013. The
effect of subsection (c) was merely to make the contents of a petition to open
judgment of non pros different from the contents of other petitions to open.
It did not, however, nullify Sahutsky’s holding that plaintiffs whose actions
are dismissed for inactivity must file a petition to open before taking an
appeal.
In the present case, as in Sahutsky, the trial court entered a judgment
of non pros due to Appellant’s failure to prosecute her action, and Appellant
failed to file a petition to open before appealing to this Court. Under these
circumstances, Appellant waived the lone issue in her appellate brief. Id. The
fact that the trial court held an evidentiary hearing before entering judgment
of non pros did not excuse Appellant from filing a petition to open, since Rule
3051’s Explanatory Comment persuades us that a petition to open remains
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mandatory even when the trial court enters judgment of non pros following a
hearing.
For these reasons, we affirm the order of the trial court.5
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2020
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5 Appellant’s failure to file a petition to open judgment prior to taking this
appeal is not a ground for quashal. See Sahutsky, 782 A.2d at 1001 n.3
(quashal of appeal is inappropriate when party fails to file petition to open
judgment of non pros; “the proper consequence of the failure to file a Rule
3051 petition is a waiver of the substantive claims that would be raised”).
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